Yesterday, a federal district judge in California ruled that California’s *entire* death penalty is unconstitutional. Not just the application of the death penalty to one defendant. The whole kit and kaboodle.
In a normal universe, the Attorney General would fiercely oppose this ruling, and appeal it immediately to the Court of Appeals. But this is California, where the government has gotten into the terrible habit of not appealing adverse judgments it likes.
So, what happens if the California Attorney General decides not to appeal the case (purely hypothetically speaking). Unlike in the Prop 8 scenario, where arguably a County Clerk or someone else could intervene to appeal a judgment the State did not want to defend, here the only part of interest in the execution is the state itself. This would amount to a de facto repeal of the California death penalty, immediately. Plus it lacks the political consequences of a legislative repeal, or blanket commutations of death sentences by the Governor.
The AG announced she is “reviewing the opinion.”
The state could appeal to the 9th U.S. Circuit Court of Appeals. Attorney General Kamala Harris, a Democrat, is reviewing the opinion, her press secretary said.
Already, one California state Senator is urging Kamala Harris to appeal:
The ruling was not without critics. Republican state Sen. Jim Nielsen, former chairman of the California Board of Prison Terms, issued a statement saying, “The current system needs improvement, but to completely get rid of the death penalty is unconscionable for victims and their families and society.
“Victims and their families need and deserve justice. This ruling denies them and society justice.”
He said Californians have long supported the death penalty, and he urged Attorney General Kamala Harris to “uphold the will of the people” and appeal.
In a normal universe, it wouldn’t even be an issue to urge the AG to appeal, but this is California.