State Prolongs Victims' Nightmare

OCT. 1, 2010

By ANTHONY PIGNATARO

The state of California is apparently so dysfunctional that it can’t even kill a convicted rapist and murderer. After 28 years on San Quentin State Prison’s death row, Albert Greenwood Brown was supposed to die this week. But like most executions attempted in this state in the last decade, it degenerated into a roller coaster of court appeals, legal posturing, bureaucratic bungling and, ultimately, emotional distress for the surviving family members of the victim in the original crime that sentenced Brown to death in the first place.

The state Department of Corrections and Rehabilitation originally scheduled Brown’s execution for early Wednesday, Sept. 29 (the Corrections Department approved my request to be one of 17 official “media witnesses” to the execution). But on Sept. 27 Governor Arnold Schwarzenegger delayed the execution 24 hours to make sure all pending appeals were exhausted. Corrections officials rescheduled the execution for 9 p.m., Sept. 30, but then admitted that three hours after that time the prison’s remaining supply of sodium thiopental – a crucial anesthetic used in lethal injections – would expire.

U.S. District Court Judge Jeremy Fogel contributed to the comedy of errors. On Sept. 20, Fogel ended a four-year moratorium he imposed on capital punishment in the state back, ruling that corrections officials had succeeded in revamping lethal injection procedures (Fogel had blocked executions back in 2006 after inmate Michael Morales sued the state, alleging that the lethal injection cocktail then used would cause him “intolerable pain”). Fogel also gave Brown a choice of dying by the old three-drug cocktail or a new single-drug injection that had seemingly worked in other states.

But late on Sept. 27, the 9^th U.S. Circuit Court of Appeals ruled that Fogel could not possibly have reviewed the prison’s new lethal injection procedures and had erred in giving Brown the drug choice. They told him to reconsider. Fogel suddenly reversed himself the next day, ruling that he would need a lot more time to review the Corrections Department’s new procedures. The day after that, the California Supreme Court ruled that the state couldn’t execute anyone until the  Morales lawsuit was thrashed out. It also criticized the state over the drug supply issue.

“By choosing an execution date for Brown of September 29, 2010, with presumptive knowledge that it faced the imminent loss of an essential ingredient to the execution on October 1, 2010, the state has itself contributed to circumstances incompatible with the orderly resolution, pursuant to normal procedures, of pending legal issues in connection with executions under the new regulations.”

No one can say when (or even if) the state will execute Brown, though everyone agrees that San Quentin won’t obtain any more sodium thiopental until sometime next year. It’s yet another delay for family members that have already waited more than a generation to see justice carried out.

“I was 40 years old when my 15 year old daughter Susan Louise Jordan was savagely and brutally murdered by Albert Greenwood Brown,” Angelina Jordan wrote to Schwarzenegger on Sept. 7 of this year. “I am now 70. My husband passed away 14 years ago, never able to put his grieving heart to rest by seeing his daughter’s killer receive the punishment he deserves. Must I follow suit also, or will I see justice before I die? It is unconscionable to put decent, law-abiding citizens through this prolonged nightmare. There are no words to describe the indignation I am feeling right now.”

Researchers who both advocate and oppose capital punishment agree that, in California, implementing the death penalty has become a disaster.

“It’s a broken system,” said Richard Dieter, a director of the Death Penalty Information Center in Washington, D.C. “It’s broken in the sense that it’s very expensive and very time-consuming. California has the most expensive form of life without parole.”

Michael Rushford, the president and CEO of the Criminal Justice Legal Foundation in Sacramento, agreed. “Compared to other death penalty states, the length of time (between sentencing and execution) is double, triple that of other states,” he said, adding that the system has “absolutely” been set up to fail. “There’s a symbiotic relationship between the 65 percent of state legislators who oppose the death penalty and the 9^th Circuit Court.”

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There are currently 708 condemned inmates in California. Three hundred one of those have had sentences affirmed by the state Supreme Court. Ten are currently awaiting retrial.

According to figures supplied by the state Department of Corrections, 689 of them are men. Broken down by race, 36.58 percent of condemned inmates are white, 36.02 percent are black, 22.18 percent are Hispanic, while the remaining 5.23 percent is classified as “other.”

Say what you will about California’s correctional system, but Brown is pretty much the poster boy for capital punishment.

In 1976, he broke into a Riverside home, choked a 14-year-old girl to unconsciousness and then raped her in her mother’s bedroom. He was soon arrested, and two years later convicted of rape and sent to prison.

But Brown won parole in June 1980. Four months later, he attacked 15-year-old Susan Jordan as she was walking to Arlington High School in Riverside. First he raped her in a nearby orange grove, then he strangled her to death with one of her shoelaces. He left her half-naked body in the grove. That night Brown became narcissistic and began calling Susan’s home.

“Hello, Mrs. Jordan, Susie isn’t home from school yet, is she?” Brown asked Jordan’s mother at 7 p.m. “You will never see your daughter again. You can find her body on the corner of Victoria and Gibson.”

At 7:30, Brown called Riverside Police and told them where they could find Jordan’s body. Around 8 p.m., Brown called Jordan’s family again, telling them where they could find Susan’s identification. An hour and a half later, he called the family again, describing in detail where in the orange grove they would find Susan’s body.

Police arrested Brown a month later after finding Susan’s jogging suit – stained with blood and semen – in Brown’s work locker. On Feb. 4, 1982, a jury in Riverside found Brown guilty of first-degree murder with special circumstances. Fifteen days later they sentenced him to death. Brown moved into San Quentin’s death row on March 2, 1982.

That was nearly three decades ago. This far exceeds the 17 years and six months on average that criminals have spent on California’s death row since the restoration of capital punishment in 1978, but current trends indicate Brown’s time may become the norm.

So far, the record for longest time spent on death row between sentencing and execution belongs to Stanley “Tookie” Williams, executed in 2005 after 24 years and eight months. Since 1978, the shortest period of time anyone has spent on death row before execution was nine years and seven months (David Edwin Mason, executed in 1993).

“The delay between sentence and execution in California is the longest of any of the death penalty states,” the state’s Commission on the Fair Administration of Justice reported in June 2008. “Delays grow worse every year. As the population of California’s death row has grown, the length of the delay between sentence and disposition of appellate reviews has grown as well. Thirty persons have been on California’s death row for more than 25 years; 119 have been on death row for more than 20 years; and 240 have been on death row for more than 15 years.”

Death sentences come with appeals – and attendant delays – already built in. All death sentences are automatically appealed to the state Supreme Court. Condemned prisoners can also file a petition for a writ of habeas corpus with the Supreme Court as well as the federal district court. As the death row population expands, delays in getting these appeals expand as well. For instance, the Fair Administration of Justice commission determined that the state Supreme Court “now has a backlog of 80 fully briefed automatic appeals in death cases awaiting argument. The Court ordinarily hears 20-25 of these cases each year, so the wait for an oral argument now averages 2.25 years.”

“It takes five years just to get a lawyer appointed for your appeal,” Dieter said.

Brown was to have been the first inmate to die in San Quentin’s new Death Chamber. Like apparently everything associated with capital punishment, it was vastly more costly than originally advertised.

Construction (using inmate labor) began in early 2007 outside of legislative oversight – its projected $399,000 cost meant it flew just beneath the threshold that would require lawmaker approval. But costs ballooned to $853,000, which outraged lawmakers. After Schwarzenegger halted the project in April 2007, James Tilton, head of the state’s prison system, apologized to lawmakers and ordered a review of the whole thing.

Costs associated with death row vastly exceed those of other incarcerated inmates. The most recent research on this subject is a 1993 UC Berkeley School of Public Policy study, which shows a death penalty trial in Los Angeles County cost three times that of a trial lacking capital punishment. Corrections Department figures show that the private cell and extra guards given to inmates cost the state $90,000 a year more than regular inmates. In total, the state Fair Administration of Justice Commission determined that the current death row system costs $137.7 million a year – more than 10 times the $11.5 million it would cost to house the same inmates for life imprisonment.

“It’s very expensive in its broken form, but it would be even more expensive to fix it,” Dieter said. “You’d have to increase resources – more lawyers, judges, probably prosecutors, too. It’s been estimated that it would cost another $95 million a year to fix it.”

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It seems amazing, but there have only been 14 people executed in California since 1978 (twice that number have died of natural causes in the same period, causing Supreme Court Chief Justice Ronald George to quip to the Los Angeles Times back in 2005 that “the leading cause of death on death row is old age”). It’s apparently always been that way. According to state Corrections Department statistics, since the first execution in 1893, California has executed 513 individuals (by comparison, Texas Corrections Department statistics show 824 executed criminals since 1923).

Executions are rare in the state, and partly for that reason, they’re circuses. Attempting to hold one six weeks before a hotly contested gubernatorial election was asking for trouble. And don’t forget that Democratic candidate Jerry Brown was governor when Albert Brown (no relation) was first sentenced to death. As the state’s attorney general, Brown also has some say in the scheduling of executions, though his office has said he played no role in deciding to move Albert Brown into the Death Chamber.

In his younger days Jerry Brown said he was “morally opposed” to executions and said banning the death penalty would move society to a “higher state of consciousness” (he also advocated the televising of executions to build hostility towards them). But he apparently holds no such hesitations now, saying that his job as attorney general is to “enforce the law.” Indeed, Brown’s attorneys have said Attorney General/Candidate Brown has accelerated their client’s execution date to look tough in his battle with Republican Meg Whitman – an accusation the AG’s office vehemently denies.

For Rushford at the pro-death penalty Criminal Justice Legal Foundation, this is nonsense. “We haven’t had a pro-death penalty attorney general in 12 years,” he said. “Dan Lungren was the last attorney general who was committed to seeing enforcement of the death penalty.”

Even with the added costs, Rushford sees some possibility to fix the death penalty process. For instance, moving death row from Marin County – “there are more anti-law enforcement judges there than anywhere,” he said – to someplace like Susanville. “There the judges shoot the criminals in the courtroom and people clap,” he joked.

Rushford said that short of a state ballot initiative revamping the appeals process – which his organization is considering – there’s not much else that can be done. Though he did say that back in 1996 the U.S. Congress passed a law “fast-tracking” federal habeas corpus appeals in death penalty cases.

“That would have eliminated five years on average,” he said. “Two years ago we asked Attorney General Brown to apply for fast track, and he sat on his hands. He did nothing to help California rid itself of this process.”

For Dieter, a huge part of California’s problem is that it seems to be conflicted about putting convicted criminals to death.

“It seems to me that there’s an ambivalence – people support keeping it on the books, but there’s not enough support to be like Texas,” he said. “There are elements in the system – the California Supreme Court, federal courts, the governor – that are a reflection of this ambivalence. Everyone who’s studied it says it’s broken, but there doesn’t seem to be enough of a consensus to take bold action.

And that may be because the whole process itself is dying.

“Death sentences are down 60 percent (nationwide) since 2000,” he said. “Executions are down 50 percent. Fewer states have the death penalty – New Mexico abolished it last year. It doesn’t mean it just goes away, but at some point, maybe a decade from now, the Supreme Court may find it outside our norms of decency.”

Photo of the lethal injection chamber at San Quentin State Prison courtesy of state Department of Corrections and Rehabilitation.