Monday, June 15, 2009

Can California's Dysfunctional Death Penalty be Fixed?

Tom Harman, Republican legislator from Huntingdon Beach, lays out the case for why California's death penalty is unacceptable in an oped in today's SFChron.

In 2008, the California Commission on the Fair Administration of Justice issued a report stating that the death penalty system in California was failing. In California, as of 2008, 30 inmates had been on Death Row for more than 25 years, 119 for more than 20 years and 240 for more than 15 years. Is California doing something wrong? Absolutely.

Delays in obtaining legal counsel, the appeals process, court-ordered moratoriums and other stalling tactics are routine. These delays ultimately place more value on the life of a convicted criminal than on that of the victim. I believe this is unacceptable to the victims, their families and the voters.

The sad truth in California is that killers on Death Row are far more likely to die of natural causes than at the hands of the state. As the commission noted, the interminable delays that have become the hallmark of the system have weakened the death penalty's effect on deterring crime.

He might have noted that the whole enterprise, which has resulted in only 13 executions in 37 years, has cost Californian's billions.

But having stated the truth with admirable clarity, Representative Harman retreats to classic political wishful thinking. Delays are the fault of over zealous defense lawyers, voters are endlessly in love with capital punishment, the legislature just has to step up and "fix it. Unlike his description of the problems, none of these politically satisfying claims adds up.

For one thing, the major source of delay in the system is that California does not provide a lawyer for prisoners sentenced to death for their direct appeal to the California Supreme Court, for an average of five years. We are not talking about Cadillac, due process here, a lawyer to represent you on your very first appeal to the State's own high court is the absolute minimum required by the US Supreme Court for decades. Without such representation, California would be proposing to execute people who have not even had a simple opportunity to test whether their trial complied with California and Federal law. Californian's may love their death penalty, but they are not interested in executing the innocent, or those whose trials have violated the fundamental requirements of due process (fortunately the US Supreme Court would not actually allow us to execute anyone under those circumstances).

Can the legislature fix that? Sure, start by doubling or tripling the size of the budget to pay for appeals lawyers. Of course rich people on death row should pay their own way, but there are not many of them there. For the vast majority on death row who are poor, the state has a constitutional obligation to provide counsel on direct appeal. Finding millions more dollars in our current budget situation will be,er, challenging. It is not likely that Representative Harman's Huntingdon Beach constituents would support paying higher taxes in order to hire more defense lawyers, but I would admire him for advocating that.

There is another way. Over the decades politicians have enthusiastically added ever new "special circumstances" to California's death penalty statute, making it possible for willing prosecutors to seek the death penalty against virtually any murderer. Prosecutors in Kern County have very different judgments in such matters than prosecutors in LA County, but both have the power to obligate California tax payers to spend millions of dollars on appeals to sustain any death sentences they obtain (counties do face huge upfront costs for trials). If Californian's cannot imagine giving up on the death penalty, let us at least limit that hugely expensive sanction to a narrow category of crimes that are both heinous and deterrable. The most obvious one would be a deliberate murder by a prisoner already under life sentence. The result would be a much smaller death row and much quicker executions. The cost would be facing down the special interests who want to see their own worst nightmares symbolically represented in the state's capital statute.

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