Pursuing a truly lost cause - by Judge Jim Gray

You have probably seen recent newspaper articles saying that the only U.S. manufacturer of sodium thiopental — the anesthetic that begins the three-drug process used in putting condemned prisoners to death — has announced that it was immediately ceasing production of that substance. The stated reason was that the company did not want any of its products to be associated with killing people.

At this point, California still has enough of the drug for about 80 executions, but after that it will be forced to look elsewhere.

There are companies in other countries that manufacture sodium thiopental, but it is a violation of law for many of them to export it to "rogue countries" for use in capital punishment. Of course in this case, one of those rogue countries is ours!

And in those countries where its exportation is not illegal, there has been such a strong political backlash that the companies are not allowing its sale for that use. For example, Germany's minister of health publicly urged all companies and distributors not to provide the drug for such a purpose because, as he expressed it, such use is not in keeping with German and European values.

So if California cannot obtain enough sodium thiopental for use in executions, it will be forced to designate an alternative drug. But that would mean more hearings would have to be held, which would provide for more lengthy legal challenges.

And those challenges are what have stopped any executions from taking place at all in California for the last five years. Right now 718 prisoners are being held on death row, and by the time this issue with sodium thiopental is resolved, there will literally be hundreds more. And then, as a practical matter, some other "unforeseen" issues will probably crop up, resulting in further delay.

Recently the group Death Penalty Focus circulated what it calls a Joint Statement from Law Enforcement Professionals on California's Death Penalty to people who would qualify to sign it. For more information, visit http://www.deathpenalty.org/lawenforcement. That statement reads as follows:

"We are current and former law enforcement officers, prosecutors, judges, and corrections officers who have devoted our lives to improving public safety as well as the accuracy and fairness of the criminal justice system. Having seen the system from the inside, we know that the death penalty is deeply flawed for myriad reasons. We come to this issue from a variety of perspectives.

"For one or more of the following reasons we have concluded that the death penalty in California is not working: 1) In a time of increasingly shrinking public safety resources, with an annual cost of at least $137 million per year in California, the death penalty is extremely expensive and diverts too many crime-fighting resources from other critical public safety needs; 2) The risk of wrongful conviction and execution cannot be entirely eliminated; 3) The system fails victims' families, who are dragged through years of appeals and uncertainly; 4)The death penalty as it is currently administered is no more a deterrent to murder than permanent imprisonment; and/or 5) The vast majority of death row prisoners in California will meet the same fate as those sentenced to permanent imprisonment; they will die in prison despite the extraordinary additional expenses incurred by the taxpayers of California.

"Therefore, we support replacing the death penalty with effective alternatives, such as permanent imprisonment."

So far a large number of current and former law enforcement professionals have already signed that document, including state judges and justices, state and federal police, prosecutors, probation and parole officers, and members of the California Department of Corrections, including Jeanne Woodford, a former warden of San Quentin State Prison.

I have signed the statement as well. Death Penalty Focus plans publicly to release the list of signatories later this year.

Many of the reasons for my conclusions were set forth in my columns published in this space March 16 and 23, 2008. If you are interested, you can find them either on the Daily Pilot's website or my own. And since that time, my conclusions have only become more firm.

Among other things, what people do not understand is that the system can make mistakes — in fact dozens of death row inmates around the country have later been exonerated! Furthermore, it costs the taxpayers about seven times the amount to go through the court's death penalty process — with all of the extra attorneys, investigators, hearings and appeals — than it would be to investigate, prosecute, convict, go through the appellate process and house a defendant in prison with a sentence of life without the possibility of parole.

In addition, because no one who has been sentenced to life without parole in California has ever been released or escaped, that should not be an issue.

But what above all has convinced me to oppose the death penalty is the fact that under this system the loved ones of the victims are literally being played as political pawns. If closure ever comes at all, it usually comes only when the perpetrator dies in prison of other causes — after decades of the matter being kept in limbo. And that is simply too much grief to inflict upon the families.

Yes, many family members do want the maximum legal sentence to be imposed for causing the death of their loved one, and that is understandable. But if that maximum sentence statutorily would simply be life without parole, most of them would probably be satisfied and then they could move on with their lives.

Many legal professionals who have been intimately involved in the death penalty system have seen that it is not working. It is time for the rest of California to come to the same conclusion.

JJAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at jimpgray@sbcglobal.net or http://www.judgejimgray.com. Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.