AP Was Dead Wrong on Death Penalty; New Polls

Sep22

We’re glad the Associated Press rewrote completely Paul Elias’s original story on Jerry Brown and the death penalty that they released on Tuesday because the first version was (how can we say this gently?) just plain bullshit.

Brown has not, as the AP originally wrote, had “a change of heart” on capital punishment. He’s still personally opposed to the death penalty; and, as Attorney General in a state that has the death penalty, he and his office are still seeking to enforce it.

The alleged news hook for the original, bum story was that Brown’s “name is now affixed at the top of new lethal injection procedures that California officials want to use to execute six inmates in the coming months at the San Quentin State Prison death chamber.”

Only problem: this is nothing new. Brown’s AG’s office has been arguing for several years to uphold California’s death penalty, which was put on hold in 2006 by U.S. District Court Judge Jeremy Fogel of San Jose, until the state could demonstrate that lethal injection procedures did not cause condemned prisoners to suffer cruel and unusual punishment.

“My office has been arguing these cases all along,” Brown said Monday. “We’re in the forefront on this.” Brown’s office contends that new procedures now in place will ensure that lethal injection will not be cruel and unusual punishment.

But that didn’t stop the AP from putting out a story that said: “Attorney General Jerry Brown and his lawyers are demanding that executions resume in California as soon as next week in a push that marks a significant change of heart for the former outspoken death penalty opponent.”

Which would be explosive stuff, considering the long political history of Brown and his father, the late Governor Pat Brown, on the volatile issue. Except…it’s not.

However, the original, heavy breathing AP yarn did give Meg Whitman who (like Elias, at least in this case)  doesn’t let the facts stand in the way of a good story, an opening to let loose one of her campaign’s typical clumsily written,  overbearing and over-reaching rants.

“Even on matters of life and death, Jerry Brown is willing to play politics. Brown’s newfound support for the death penalty after three decades of opposing it is as preposterous as his newfound appreciation for fiscal conservatism. None of this squares with Jerry Brown’s record and must have his supporters scratching their heads.”

To which, Brown’s flack, Sterling Clifford, replied: that she was the only one scratching her head:

“For Meg Whitman, who is on record at the Sacramento Bee editorial board discussing the death penalty as a cost-saving measure, to accuse someone else of playing politics with the death penalty is not something she should be doing.”

Brown’s office is seeking to use new guidelines for lethal injection to carry out the sentence on Albert Greenwood Brown next Wednesday. Albert Brown was convicted in 1980 of abducting, raping and murdering a 15-year-old Riverside County girl on her way to school.

What’s new about Brown’s position? Nothing.

“The Attorney General’s office is doing its job. The Attorney General is doing his job, which is to uphold the laws of the state of California,” said Clifford. “He’s personally opposed to it but will enforce the law.”

In other words, no change of heart. No change of anything – at least not since 1977, when Brown vowed to uphold the law after his veto of a death penalty bill was overridden by the Legislature.

How or why the AP story got dramatically rewritten, we don’t know. But we expect Brown’s head exploded when he read the original and someone went postal on the AP. Which may or may not be a capital offense.

Polls you can ignore (or not): Public Policy Polling, a left-leaning polling outfit, has a new survey showing Brown ahead of Whitman 47-42% among likely voters after being up 46-40% two months ago. This robocall poll has 630 alleged likely voters with a margin of error of plus or minus about 4%. Most interesting finding – if the sample is any good, which we can’t confirm – Brown’s favorable is 42% positive and 45% negative while Whitman’s – after spending $120 million or so on TV – is 35% positive and 49% negative. Ouch.

Meanwhile Pulse Opinion Research, a Rasmussen offshoot, did a poll for Fox News of an alleged 1,000 likely voters (margin of error plus or minus about 3%) that shows Brown and Whitman tied at 45% each – a shift in Brown’s favor from 49-43% for Whitman on Sept. 11. Take it with a grain of salt.

As well you should give only passing credence to the finding that Barbara Boxer and Carly Fiorina are tied at 46% for Fiorina and 47% for Boxer – a small change from the 46-44% in Boxer’s favor in September.

Attention direct mail vendors: Worst idea in the history of your business.


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There are 5 comments for this post

  1. avatar tegrat says:

    We could save the state $1 billion over five years by eliminating the death penalty right now and replacing it with life without parole. $400 million from Schwarzenegger’s new death row prison (in which prisoners can only be bunked one to a cell as the rest of the space is taken up with their legal defense documents), and $120 million a year on saved trial costs. But hey, so what if we kill a few innocents (at least a dozen documented so far) – it’s not like we’re Nazi Germany or something!

  2. avatar Theophilus says:

    I have read Calbuzz since it started and have generally found the running commentary fairly amusing.

    This article here, however, confirms for me that neither of the site’s two “journalists” move their thinking beyond talking points and political gossip. The real story here, at least from a voter, is why AG Brown picks and chooses which law he’ll uphold.

    AG Brown has said that he will not support Proposition 8 in Court because he disagrees with the substance of the law and that his personal convictions prevent him from exercising the authority entrusted to the AG’s office to defend the validly passed measure in court.

    But now we’re told that AG Brown will defend a practice – the death penalty – that offends his sensibilities because it is his duty and his obligation to do so as the duly elected California State AG.

    Which is it? Does caprice alone decide what laws will and will not be upheld?

    Calbuzz settled the matter for me: caprice and fickle whim are not virtues I want in the governor’s office. Thanks for moving me off of the fence, fellas!

  3. avatar sqrjn says:

    Legally I think the situation is more subtle. The AG appears to argue that his personal beliefs against the death penalty are that as a matter of morality and policy it is wrong, but these objections do not mean the AG believes the death penalty is unconstitutional. Therefore the AG can comfortably follow the politically expedient course and allow his duty to override his personal beliefs.

    However with Prop 8 the AG has clearly stated he believes the proposition is unconstitutional – therefore regardless of his personal beliefs his duty as the AG is not to support an unconstitutional law. An AG’s obligation to defend the law does not extend to unconstitutional laws, in fact quite the opposite.

    This issue is not new a comes up with some frequency around the nation. Here the problem complicated further by the fact that prop 8 was an amendment to the Cal. Const. however that has not prevented it from being attacked on constitutional grounds under both the US and California Constitutions.

    Does the AP issue retractions? How can they just rewrite a story without comment?

    • avatar Theophilus says:

      So if I understand your thinking correctly, the California Supreme Court plays second-fiddle on judicial interpretation to the AG?

      Explain to me how the AG gets to interpret and decide constitutionality of State Constitution revisions and the Supreme Court doesn’t…or rather, how the Supreme Court’s interpretation of a law as valid is trumped by the AG’s interpretation.

  4. avatar sqrjn says:

    There is a public perception, based perhaps in the success of the US Judiciary, that courts are the sole deciders of the law. This is simply not the case, but Prof. Berstein can explain it better than I can.

    http://volokh.com/2010/09/22/dahlia-lithwick-its-weird-for-a-senator-to-consider-the-constitutionality-of-legislation/

    But applying common sense, do you really want an AG who defends unconstitutional laws? Of course the AG’s office will have to interpret laws and apply their interpretations in making decisions. If an AG geninuely believes a law to be unconstitutional how could they defend it when that conflicts with their duty to uphold the law.

    You point out that the AG is letting his interpretation trump that of the Cal. Supreme Court, however the current challenges to Prop 8 lie with the federal consitution which of course supercedes the Cal. Const. I think you are entirely correct that an AG would be acting improperly if they choose to disregard a Cal. S. Ct. ruling on a matter of California law.

    What is more interesting is the idea that the AG could have an obligation to defend a provision they believe might be unconstitutional in some situtations. Some argue that popular amendments to constitutions should given more “weight” towards a presumption of constitutionality both in the Courts and by members of the executive branch applying the law in the absence of clear judicial decisions. Thats a very interesting idea, but I believe that we elect individuals. An individual like AG Brown has an obligation to follow their own conscience and thoughts on constitutional issues, that is what it means to have a representative democracy.

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