By James Clark, Death Penalty Field Organizer, ACLU of Southern California

California’s death penalty has always been a bit of a head-scratcher, but the news over the last two weeks may have the record for furrowed brows and rolled eyes. The legal drama that has unfolded as the state tries to execute Albert Brown has shocked legal experts, but just confused everyone else.

There’s a reason for that. Five years ago, when executions were put on hold, it was because of myriad problems with the process of putting people to death. Execution teams were poorly trained, didn’t understand the deadly substances they were handling, and were working in dark, cramped conditions. That’s a recipe for botched executions, which has happened too often in California. When Judge Jeremy Fogel, a federal judge, heard that evidence, he told the state they had to fix the procedure.

So that’s what the state tried to do for nearly five years. The problem is, it wasn’t fixed. When Albert Brown’s execution date was originally set, legal experts reported little chance of the execution taking place because of no less than three pending lawsuits over the procedure and a brand new set of regulations that had never been reviewed by a judge. There were just too many open questions, and the state had simply not finished its task of creating a workable procedure. But Attorney General Jerry Brown went ahead anyway and set an execution date for Albert Brown, knowing full well all of these questions remained.

The result has been a legal rollercoaster with weeks of court hearings and media coverage in which Mr. Brown’s ultimate fate has changed almost by the hour.

Finally on Wednesday, barely a day before the scheduled executions, orders from both state and federal courts said the execution cannot proceed because the courts had not been given enough time to address all the remaining legal issues. Finally, just 30 hours before the scheduled execution, the AG acknowledged that the execution would not proceed.

Why the sudden rush to kill? After all, California has gone 4 1/2 years without any executions and in that time, the murder rate has gone down. The answer is an odd one: the expiration date of the lethal drug. The AG revealed on September 25 that the drugs they need to kill go bad on October 1, and the manufacturer says there won’t be any more available until 2011 (along with a statement about how this drug is supposed to heal people not kill them). Interestingly, the state seems very concerned about at least one line on the drug’s label (its expiration), but wholly unconcerned with another line (its intended use).

The courts have finally put a stop to the rollercoaster, telling the Attorney General quite clearly that we need to take the time to answer these questions before we rush to take a man’s life. The expiration date on the bottle should have nothing to do with it.

This fiasco has shown just how broken California’s death penalty has become. The people of California will be better off when we replace the death penalty with life without parole, requiring people in prison to work and provide restitution to victims’ families.

For those trying to get their heads around this, see below for a timeline of the basics.

August 30, 2010:        Albert Brown’s execution is scheduled for Sept. 28 at 12:01 am, even though the five-year-long time out on executions is still in place.

August 31:                  A judge in Marin County affirms that the moratorium is still in place; execution off.

September 20:            Court of appeals says the Marin judge was wrong and the moratorium on executions is lifted; execution back on.

September 24:            Judge Fogel, still not satisfied with the procedure, comes up with a compromise: Albert Brown can choose between the same old procedure that probably never worked, or a new untested one that no one’s been trained for; execution still on.

September 25:            Dept. of Corrections reveals that its lethal injection drugs will expire on October 1, and new drugs won’t be available until 2011. Execution still on, but it better be quick.

September 27:            Governor Arnold Schwarzenegger moves the execution to Sept. 29 at 9pm to give defense time to file appeals. Later, the 9th Circuit Court of Appeals reverses Judge Fogel’s order, saying his “compromise” was inappropriate and the expiration of the drug is not a sufficient reason to move forward. Execution in limbo.

September 28:            Judge Fogel orders a stay of execution, agreeing with the 9th Circuit that he needs more time to figure out if the procedure actually works; execution off for now, but the Attorney General promises to appeal.

September 29:            State and Federal courts agree with Judge Fogel: we need more time. Execution off for good, Dept. of Corrections issues a stand down order.

Albert Brown could have been sentenced to die in prison 28 years ago and the people of California could have forgotten all about him. Instead, we’ve spent months in court and over $4 million to end up right back where we started, with Albert Brown in prison.

Tell Gov. Schwarzenegger to cut the death penalty and convert all death sentences to life imprisonment.

We have no budget, no money for child care centers and college students, and no hope that these problems will be solved anytime soon. But take heart California, what we do have is a state-of-the-art death chamber. And soon we will have the best and brightest death row housing facility. Can anyone in Sacramento say “priorities”?

On September 22, “Day 83 Without a Budget,” the Governor revealed a brand new execution chamber. This was his latest leap into the budgetary black hole that is the death penalty. While state employees have been furloughed, the inmates at San Quentin have been hard at work building the new facility to replace the rigged-up gas chamber they had been using. After a judge ruled it was too small and poorly lit to put people to death without risk of serious error, the new one boasts such improvements as a room with lights.

Its price-tag? A mere $853,000.

 A few weeks earlier, back on “Day 41 Without a Budget,” the Governor “borrowed” $64 million from the state’s general fund, to be paid out of our still non-existent state budget. That money will be used to begin construction of the new death row housing facility, which in the end will cost $400 million to build. That breaks down to about a half a million dollars per cell. The facility is being designed to hold 1,400 inmates—twice the number of people currently on death row. That’s because the government knows that almost everyone sentenced to death in California will not actually die in the shiny new execution chamber. In fact, almost all will die of natural causes, just like they do now.

The Attorney General’s office claims we will use San Quentin’s brand new, well-lit execution facility next week, on “Day 91 Without a Budget,” to execute Albert Brown. But with three on-going legal challenges to the lethal injection procedures, legal experts doubt the execution will actually take place.

Mr. Brown has been on death row for 28 years. Based on averages of the costs of death penalty trials, state-level appeals, and housing in San Quentin, the ACLU estimates his case has cost California $4,788,750 over and above the cost that would have been incurred if Mr. Brown was sentenced to life without the possibility of parole.

Many people hear that and reason we could reduce the cost by decreasing the time spent on death row – after all, if he wasn’t on death row for 28 years, he couldn’t have racked up that $4 million dollar bill, right? Unfortunately not. In fact the reverse is true: speeding up the system would only cost more money. The California Commission on the Fair Administration of Justice concluded we would need to pay at least $95 million more per year to speed up the death penalty and increase its efficiency. That finding was agreed upon unanimously, by death penalty advocates and opponents alike.

Why? Because the bottle-neck in death penalty cases isn’t too many appeals or sympathy for death row inmates, it’s the same thing that bottle-necks every other bureaucratic enterprise on earth: money. Currently, a person sentenced to death waits an average of five years before an attorney is even appointed for appeal and 10 years before the first appeal is actually heard in court. Faster appointments and hearings can only be accomplished by hiring more attorneys and court staff. In short, by spending more money.

While state employees prepare for an execution in between their furlough days, millions of dollars are sucked into California’s machinery of death. Every state program is facing drastic budget cuts, from education to health care to law enforcement, but we can still scrape together more than $800,000 for a state-of-the-art, well-lit killing chamber and remain on track to spend $1 billion on the death penalty in the next five years.

 A safe and cost-effective alternative exists that can still salvage California from these absurd priorities. By cutting the death penalty and converting the sentences of more than 700 death row inmates to life without parole with work and restitution to the victims, we can save $1 billion in five years without releasing a single prisoner. Permanent imprisonment is swift and certain justice that keeps the public safe without sucking the budget dry.