State Atty. Gen. Kamala Harris’ decision to appeal a federal district court ruling that found the death penalty in California unconstitutional is a welcome example of putting professional responsibility over personal politics: Harris opposes the death penalty and now will be defending it before the U.S. 9th Circuit Court of Appeals. We commend her professionalism and hope she loses.
Harris’ decision should not be confused with an act of political courage. Although public support for the death penalty has declined markedly over the last decade, a majority of Americans still favor it, and Harris can only benefit by being seen as someone willing to overcome her personal objections to enforce a popular law. Nor is her move a model of consistency: She now argues that her professional duty requires her to defend state law, but both Harris and Gov. Jerry Brown refused to stand behind Proposition 8, which banned gay marriage in California, arguing in part that once a district court had found the measure violated the U.S. Constitution, they had no obligation to defend it further.
That decision had real consequences. Last year, the United States Supreme Court dismissed the challenge to gay marriage in California because it concluded that the supporters of the proposition lacked standing to defend it before the court. That produced a happy result — gay marriage resumed in the state — but one that was hardly satisfying in legal terms. The measure died only for lack of a defender, not because the court reached the serious constitutional questions at the heart of it.
The two cases are not identical. Efforts to ban gay marriage confronted — and continue to confront — a chorus of constitutional objections, while the death penalty case rests on the notion that delays in executions by themselves create a cruel or unusual circumstance, a position the U.S. Supreme Court has never accepted. Yet Harris’ response to the two cases suggests a willingness to pick and choose the limits of professional obligation.
Still, consistency is not the only virtue in politics, and here Harris’ sense of professional duty — with a dash of political expediency mixed in — has led her to the right conclusion. Capital punishment is a moral and legal abomination, and its demise cannot come too quickly for this state or the rest of the nation. But it should not end because California’s top lawyer refused to defend it. It has long been the law of California, and it has many supporters. Harris and her office are right to vigorously represent that law and those constituents, even in a cause that she does not embrace.
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