Making a Circus Out of Justice : On-again, off-again Harris execution raises discomforting questions about the process

Not even the most enthusiastic proponent of capital punishment could have found Tuesday’s execution of Robert Alton Harris edifying. The truth is that it was a circus.

Hour after hour, the ordeal dragged on. At one point the convicted murderer was placed inside the San Quentin gas chamber, strapped to the chair, and then--disappointment? elation?--removed as the latest court order temporarily delayed the inevitable.

Regardless of whether one considers execution to be a cruel and unusual punishment, the roller coaster of eleventh-hour pleadings Monday night was certainly cruel and unusual: For Harris, for his family, for the families of the victims and even for guards, judges and attorneys.

Should this circus have happened? Should Harris, his family and the families of the boys Harris murdered have had to go through those agonizing final hours? Were the appeals by Harris’ attorneys and the stays granted by the judges of the U.S. 9th Circuit mocking justice?

Capital punishment is legal in California. This is a fact. We continue to oppose allowing the state the power to take a human life, even that of a murderer. But that power is a fact.

When to end the appeals, to accept the inevitability of death, is a difficult question. Harris’ attorneys cannot be expected to do that. It would go against the very core of our legal system of aggressive advocacy if the condemned person’s lawyer decided to stop his or her advocacy.

The only way we have to avoid mistakes is to make sure that each condemned person has been given every chance for exoneration or clemency.

Where the responsibility lies for ending the legal process is in the judiciary. A judge’s job is to judge, not to advocate. So if there is any blame for the six-hour delay in Robert Alton Harris’ execution, perhaps the 9th Circuit Court is where it belongs. But the judges too were wrestling with a decision that humans are, thankfully, seldom called on to make. The certainty required by such finality surely cannot be arrived at quickly.

No doubt the U.S. Supreme Court’s stern rebuke of the 9th Circuit Court, and its final blanket ban on further stays, will win no praise from opponents of the death penalty. But if we are going to have executions in California--not a prospect to relish--attention must be paid to the process itself.

Who can look back on those final hours with anything approaching confidence that the process was handled well? On the contrary, something was lost in California Tuesday, in addition to the life of a murderer. That something was dignity.