Plans for Harris Execution Renew National Debate : Capital punishment: Attention focuses on California, which has not put anyone to death in 25 years. Some believe it will set pattern for other states.

The scheduled execution of Robert Alton Harris at San Quentin on Tuesday would mark not only a new era in California but a major turning point in the nation’s protracted legal struggle over the death penalty.

The Harris case--coming as it does in populous, trend-setting California--has become one of the most widely watched in the country. Inevitably, it is reinvigorating the debate over capital punishment. Ironically, both sides see the execution--the first here in 25 years--as aiding their cause in different ways.

“California has been symbolic to opponents of the death penalty,” said Prof. Scott E. Sundby of Hastings College of the Law. “If you had the right court, you could stave off the death penalty. But once an execution takes place, California will become just one more state where executions are happening regularly, and no other state can fill that symbolic role.”

Proponents of the death penalty say Harris’ execution after 14 years in the courts will herald the resolution of time-consuming legal issues and perhaps mark the demise of seemingly endless appeals.

“I’m not shouting with glee, but I think the gas chamber is going to be busy,” said Michael Rushford, president of the Criminal Justice Legal Foundation, a group supporting law enforcement. “This case has cleaned out the pipeline in the toughest legal battle zone in the country: California.”

Foes of capital punishment say they hope the attention Harris receives will convince the public of the futility of the death penalty as a deterrent to crime, demonstrate its drain on public resources and reveal its unfairness in executing an allegedly mentally impaired individual like Harris.

“The Harris case has clear national implications,” said Diann Rust-Tierney, director of the Capital Punishment Project of the American Civil Liberties Union in Washington. “Many people saw the death penalty as rooted in the South and tied to Southern law and race control. Now it is moving to the North and other states--and people are going to have to confront its ugly history.”

While a sudden rush to the gas chamber seems unlikely, Harris’ execution would underscore the steady expansion in the imposition of the death penalty in the United States since its restoration by the Supreme Court in 1976.

If, as seems likely, Harris is executed Tuesday, California will become the fourth state--along with Wyoming, Delaware and Arizona--that this year will hold an execution for the first time since the high court action.

“It’s significant that we’re seeing a number of states enter the execution maze this year,” said Leigh Dingerson, executive director of the National Coalition to Abolish the Death Penalty. “It seems to indicate an increasing impatience in the court system with very difficult cases and the willingness of the courts to overlook constitutional issues and get on with the executions.”

Harris’ last chance to remain alive may lie with Gov. Pete Wilson, who on Wednesday held a closed hearing to decide if clemency should be granted. Wilson has not said when he will decide.

Capital punishment was restored in the United States with a series of decisions by the Supreme Court in 1976 approving newly enacted death-penalty laws in Georgia, Florida and Texas. The high court concluded that a sentence of death was constitutional, so long as juries retained discretion in determining who was to die.

In all, 35 states now have enacted capital punishment, with California doing so in 1977. Since then, 168 executions have taken place nationwide, beginning with the death of Gary Gilmore by a firing squad in Utah in 1977.

In California, the death penalty has been at the center of controversy since its re-enactment by the Legislature 15 years ago. A liberal-dominated state Supreme Court, led by Chief Justice Rose Elizabeth Bird, overturned 64 of 68 death sentences reviewed through 1986. Harris’ sentence was one of the four upheld.

An unprecedented campaign by court critics led to the 1986 election defeat of Bird and Justices Joseph R. Grodin and Cruz Reynoso. Under a new conservative-dominated court, led by Chief Justice Malcolm M. Lucas, 119 death sentences have been upheld and 29 reversed.

The shift is generally attributed to two factors: The Lucas Court is far less inclined to overturn sentences because of trial procedural errors; and at this point major questions about the law have been resolved, so trial courts are less likely to make procedural errors.

Throughout the country, the overwhelming majority of executions have taken place in the South, where, authorities note, state courts tend to move more rapidly in capital cases. The states whose laws were first upheld by the high court--and thus were among the first implemented--rank high among the leaders: Texas has executed 40; Florida, 27; and Georgia, 14. To date, only one populous Northern state--Illinois--has held an execution.

The future trend of executions in the United States could be partly determined by the success of other capital defendants in invoking the psychological-related defenses Harris raised recently in seeking to avoid the gas chamber.

Harris’ lawyers contend that inadequate psychological examinations before trial prevented his jury from hearing evidence he was mentally impaired when he shot to death Michael Baker and John Mayeski, both 16, in a 1978 San Diego robbery.

In appeals, the attorneys said new psychological evaluations showed Harris had suffered brain damage from head injuries, fetal alcohol syndrome (caused by his mother’s heavy drinking) and post-traumatic stress disorder from child abuse.

Harris’ mental impairments made him irrational and impulsive when he killed his victims, and had the jury known this, it might well not have voted for the death penalty, his lawyers said.

A federal appeals court turned down the claims, saying they were meritless and raised too late in the court process. Comparing new psychological opinions with evaluations made years before would plunge the courts into a “psycho-legal quagmire,” the appeal panel said.

A similar defense was raised unsuccessfully in the case of Donald Eugene Harding, the Arizona inmate put to death on April 7. Harding’s attorney told the Arizona Board of Pardons that Harding suffered brain damage--from an umbilical cord wrapped around his neck at birth--and could not control his violent actions.

Despite its rejection in the Harris case, evidence of brain impairment may help other defendants in future cases show they lacked the mental state required for imposition of the death penalty, some experts say.

“The argument Harris’ attorneys put forth is potentially a very powerful constitutional argument,” said Prof. Sundby. “The problem is, it came too late in the game.”

Karima Wicks, research director of the NAACP Legal Defense and Educational Fund in New York, predicts that the Harris case will help inspire broader attention to brain disorders frequently suffered by violent offenders.

“The Harris case is not one where just (death penalty) abolitionists are concerned, but one that is stimulating interest among people concerned with childhood development, social services and mental health,” she said.

However, some death-penalty supporters dismiss these mental defenses as unlikely to prove widely successful. Juries historically have been hesitant to accept defenses of insanity or “diminished capacity” and are not likely to change, they say.

Rushford of the Criminal Justice Legal Foundation contends that even if Harris had raised his mental claim earlier, it would still be invalid. There was ample evidence that Harris deliberately planned to kill his two victims to prevent them from implicating him in the robbery, thus showing the premeditation required by the law, Rushford said.

“These mental defenses have been tried here in California, but they just didn’t (work),” he said. “I don’t see them working very well anywhere else either.”

Death Row in America

There were no executions in the United States from 1968 until 1977, when Utah put Gary Gilmore to death. Since then, 19 states have carried out 168 death sentences. Another 2,588** inmates are facing execution, including 329 in California. The scheduled death of Robert Alton Harris in California on Tuesday is widely expected to set off renewed debate over capital punishment.

Number Method of executed State execution since 1977* Alabama Electrocution 9 Arizona Gas chamber 1 Arkansas Lethal injection, 3 Electrocution California Gas chamber 0 Colorado Lethal injection 0 Connecticut Electrocution 0 Delaware Lethal injection, 1 Hanging Florida Electrocution 27 Georgia Electrocution 15 Idaho Lethal injection, 0 Firing squad Illinois Lethal injection 1 Indiana Electrocution 2 Kentucky Electrocution 0 Louisiana Lethal injection 20 Maryland Gas chamber 0 Mississippi Gas chamber, 4 Lethal injection Missouri Lethal injection 6 Montana Hanging, 0 Lethal injection Nebraska Electrocution 0 Nevada Lethal injection 5 New Hampshire Lethal injection 0 New Jersey Lethal injection 0 New Mexico Lethal injection 0 North Carolina Gas chamber, 0 Lethal injection Ohio Electrocution 0 Oklahoma Lethal injection 3 Oregon Lethal injection 0 Pennsylvania Lethal injection 0 South Carolina Electrocution 4 South Dakota Lethal injection 0 Tennessee Electrocution 0 Texas Lethal injection 46 Utah Firing Squad, 3 Lethal injection Virginia Electrocution 13 Washington Lethal injection 0 Wyoming Lethal injection 1 U.S. Military Lethal injection 0

Number indicates number on Death Row in that state + Ala.: 115 + Ariz.: 99 + Ark.: 35 ++ Calif.: 329 ++ Colo.: 3 ++ Conn.: 4 + Del.: 6 + Flo.: 315 + Ga.: 110 ++ Idaho: 21 + Ill.: 145 + Ind.: 52 ++ Ky.: 29 + La.: 40 ++ Md.: 14 + Miss.: 52 + Mo.: 82 ++ Mont.: 8 ++ Neb.: 12 + Nev.: 60 ++ N.H.: 0 ++ N.J.: 8 ++ N.M.: 1 + N.C.: 105 ++ Ohio: 104 + Okla.: 125 ++ Ore.: 16 ++ Pa.: 140 + S.C.: 46 ++ S.D.: 0 ++ Tenn.: 100 + Texas: 349 + Utah: 12 + Va.: 47 ++ Wash.: 9 + Wyo.: 0 U.S. Military: 6 + States that used death penalty since 1977.

++ Death penalty, but not used

No death penalty Alaska Hawaii Iowa Kansas Maine Massachusetts Michigan Minnesota New York North Dakota Vermont West Virginia Wisconsin U.S. Military * 1976 U.S. Supreme Court decision permits states to resume executions. Figures are through April 6, 1992 or later.

** Some individuals have death sentences in more than one state.

Source: NAACP Legal Defense and Educational Fund Inc.