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A skyrocketing homicide rate in Oakland. Kidnap-rapists on the rampage in Southern California. Seven death sentences reversed in a row by the Ninth Circuit U.S. Court of Appeals. Only three executions in California in the past three years. And statewide election campaigns in full swing. Sounds like a recipe for making the death penalty the No. 1 topic of public debate, right? Yet, nobody seems to be talking about it. The once white-hot political issue has turned colder than a warden’s heart. Certainly the media seems less interested. Stories published in the San Francisco Chronicle containing the words “death penalty” and “California” have declined from 415 in 1998-99 to 228 over the past two years. The Los Angeles Times published 423 such articles in 1995-96, but only 327 in the past two years. The number of death judgments in California is down, too. After averaging 28 per year from 1991-2000, the number declined to 21 last year and was on a similar pace this year, as of April. And although California’s death row now numbers more than 600, the pace of executions remains at a crawl. There hasn’t been an execution in California since January, and there aren’t any on the horizon. As of May, the Ninth Circuit had not upheld a single California death sentence this year, while throwing out at least eight. In years past, this state of events would have generated much hand-wringing, protests, interviews with embittered relatives of the victim and legislative proposals to expand the death penalty law. Now, nary a peep. There are several possible explanations. Politically speaking, Gov. Gray Davis and Attorney General Bill Lockyer have been adept at neutralizing the issue. The two Democrats say they adamantly support capital punishment — though neither seems particularly upset that nobody’s being executed. So Republicans have been forced to focus on other campaign issues. There’s also the DNA factor. Recent revelations from other states about innocent men being sentenced to death must have an impact on the public psyche here — even though guilt is seldom at issue in California cases. Typically, it’s the fairness of the penalty phase that leads to reversals in this state. The drop in overall crime rates could also be in play. “When crime rates come down, there is some softening of support for tough-on-crime policies,” says Kent Scheidegger, legal director of Sacramento’s Criminal Justice Legal Foundation, which continues to advocate for the death penalty. Two other possible reasons come to mind. One is Three Strikes and You’re Out. Reasonable minds may differ about whether the law is too severe, but there can be little question that it has put a lot of dangerous people in jail. The public may be feeling less helpless about crime — nobody expects Alejandro Avila, the man accused of kidnapping and killing 5-year-old Samantha Runnion, to get off with a slap on the wrist — and consequently less vengeful. Or, as Scheidegger puts it, “Tough-on-crime policies are political victims of their own success.” The other factor may be the courts. When in the past liberal judges have made sweeping pronouncements about the constitutionality of the death penalty, they have set off political firestorms. The Ninth Circuit seems to have learned this lesson, and is now taking a more subtle approach. With Democratic appointees now outnumbering Republicans 17-7 among active judges, the court has been turning away death sentences on an individual, case-by-case basis. “There’s not much we can do about it,” says Scheidegger, sounding resigned. “We ask the [U.S.] Supreme Court to review them, and they do review a few. The long-term solution is better appointments to the Ninth Circuit.” Scheidegger also believes that once the pre-1996 backlog of cases moves through the federal courts, the Anti-Terrorism and Effective Death Penalty Act will help capital cases move more swiftly through the appeals process. The question is, by then will anybody care?

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