Don't fix California's Death Penalty, Replace It! But with what?

Jon Streeter, Bill Hing,Diane Bellas, make the case for why California's broken death penalty should be replaced rather than repaired, in an op-ed in today's San Francisco Chron. Streeter, Hing, and Bellas, a leading criminal defense lawyer, law professor, and public defender respectively, served on the California Commission on the Fair Administration of Justice, make mince meat of Senator Tom Harmon's recent oped calling for an end to lengthy appeals in order to fix the death penalty.

As the senator states, "the death penalty system in California is broken and unworkable." We found that it now takes an average of 25 years for death penalty cases to move through the mandatory court review process. However, the reason these appeals take so long is not because of "legal maneuverings." The primary cause of these delays is the lack of attorneys willing to take these cases and the lack of court staff to review them. A person sentenced to death today in California will wait eight to 10 years before an attorney will be appointed to represent him in a legal challenge to his conviction. Without an attorney, there are no legal maneuverings at all....

How do we fix all of these problems? With money. Our commission considered myriad measures to reform the state's death penalty system and recommended several. If all of the reforms we recommended were implemented, the state would reduce the risk of wrongful conviction while still being able to process death penalty cases more quickly.

We currently pay $137 million each year for the state's dysfunctional death penalty. Implementing our recommendations would cost an additional $95 million, for a total price tag of $230 million each year. Because it would take many years to increase the pace of review of death penalty cases, we would still need to build a new facility to house the people now on Death Row, at a cost of $400 million.

The attorneys propose replacing the death penalty with "the sentence of permanent imprisonment: life with absolutely no possibility of parole." Here I would dissent slightly. While we are asking Californians to take a realistic look at how we punish the most serious crimes let us level with them completely and acknowledge that permanent imprisonment with no hope of parole is not necessary to assure public safety, makes the process of incarceration itself nightmarish for both inmates and staff, and is considered a human rights violation in the rest of the civilized world. A sentence of life imprisonment, with parole only after 25 years, the sentence for first degree murder in California, is plenty of punishment. We already keep most of our non-capital murderers in prison for well over 30 years, and we need to reduce those excessive sentences. There is a long history of making bad murder law in order to limit the death penalty, let's not do it again.

We need a whole new scale. Make 25 to life the new sentence for first degree murder with special circumstances. Move regular first degree murder back to 20 years to life (keep in mind prior to 1980, most 1st degree murderer's were released within 10 years), and move second degree murder to a determinate sentence of 10 to 20 years.

Governing through Vice

Before that, the Basij, including female units, had been used primarily as a kind of vice squad, looking for drug addicts, prostitutes and mostly women but also men wearing immodest dress.

Neil MacFarquhar, reporting in yesterday's NYTimes notes that the Basij, the often motorcycle driving "volunteer" militia that have been the shock troops of the Iranian government's violent suppression of Tehran's protests, have their origin in the vast policing of "vice" that goes on in Iranian society. Tactically, this means the government's elite Revolutionary Guard (where most of its recent leaders have come from) is given tremendous capacity to act at the micro-level of society through this extensive network of informants and government agents.

That combination means that the military has rather intimate knowledge of the populations of cities and neighborhoods across Iran. “They organize in every office, every university, every mosque,” said Fatimah Haghighatjoo, a former reformist member of the Iranian Parliament who is now a visiting scholar at the University of Massachusetts in Boston.

It also suggests that the actual legitimacy of Iran's regime, like ours, relies heavily on the identification (and construction) of a vast sea of evil and deviance within civil society whose elimination becomes a raison d'etre for an expansionist state. In both cases, drugs fill a major role in populating that army of deviants against which state repression can be marketed to the people as a form of freedom.

We Don't Deserve, and Can't Afford, Another Election Governed by Fear

In the midst of our worst fiscal crisis in a generation or two, Californians are about to be confronted with another high cost television waged gubernatorial campaign. With two billionaires lined up on the Republican side, and well connected Democratic competitors, the spending, even in the midst of a Depression, will be unprecedented.

Both the terms and the present competitors for the job render unlikely any chance that an honest debate about restoring the effectiveness of California government will take place. However we must and can avoid a campaign dominated by hot button fear issues that have proven effective in good times and bad to lead Californian's to make serious mistakes at the ballot box (Juvenile Crime, 3-Strikes, Jessica's Law, etc). We cannot afford to wake up the morning after the next election, having chosen the candidate most capable of demonizing some insignificant but visually compelling threat to public safety.

This is not an issue of left versus right (as Gray Davis should be enough to remind us), but instead the alliance between almost all the mainstream politicians, the media, and key crime fear constituents (prosecutors, organized crime victims, CCPOA) that matters most in determining whether we end up with another 1994 (when in the midst of a dismal economic decline, the election between Pete Wilson and Kathleen Brown was dominated by phantoms of crime). Keep your eye on the media's ability to keep these hot button issues in the headlines (read Jaxon Van Deberken's latest effort to keep one of the newest hottest hybrids out there, the illegal immigrant, combined with potentially violent juvenile criminal, going in today's SFChron). Perhaps we need to call out this kind of reaction formation early, before it can shape the entire bandwidth of the debate.

UCSQ

I visited San Quentin prison yesterday to deliver a lecture to a classroom full of prisoners who are mostly students in the remarkable prison university project that has provided college level course work through volunteers since most official links between prisons and universities were severed by the noxious Violent Crime Control and Law Enforcement Act of 1994 (which eliminated eligibility for prisoners to obtain Pell grants). As in my previous visits, the men subjected my arguments to a complete and skeptical review of the sort that I only rarely get from my Berkeley students (who after all have many more professors competing for their attention, not to mention the internet delivered in high speed wireless to their laptop). I walked away with many more ideas than I came in with.

One of them was this. Let us take advantage of California's massive budget crisis to establish links between prisons and universities all over this state. Universities are brimming with students looking for opportunities to combine public service and learning. Prisons are brimming with adults with the time and attention to devote to college level course work. Student staffed clinics could provide all kinds of services to prisoners preparing for their release back into the community. As fellow students in faculty taught college classes, prisoners could teach students about the realities of growing up in some of California's most disadvantaged neighborhoods and surviving in the State's toughest prisons.

Accommodating this kind of exchange will pose serious challenges to correctional officers and managers, but if college based programming proved attractive to a substantial part of the prisoner population, the gains in improved prison order and reentry success might be rich indeed. San Quentin has an ethos I have not felt at other California prisons, and which I believe comes from the relatively open links that bring volunteers, journalists, teachers and other community members behind the walls.

It will also stretch university resources mostly in the staff and faculty time while both are already taking pay cuts through "furloughs", while opening up vast pools of knowledge currently inaccessible to our students and faculties.

Too Much

Part of our problem in California is that we imprison way too many people who do not need to be in prison at all (virtually all drug offenders in my view). But part of our problem is that we imprison people who do need to be in prison for way too long. Case in point is Jared Adams, 26, of Oakland.

Jared needs to be in prison. He was convicted of a string of serious violent felonies committed in late December 2007, and early January 2008. Adams was convicted of firing three shots during an armed robbery of a service station, one of which paralyzed Christopher Rodgers (now 12) as he was taking a piano lesson in Oakland. Adams also tried to carjack an automobile on the streets of downtown Oakland by pointing his gun in the face of the driver (who turned out to be Senator Don Perata of Oakland).

Is Adams a danger to his community? You betcha as Sarah Palin might say. Does he need to be isolated from the community and lose his freedom? Oh Yeah. But for how long?

Yesterday Judge Larry Goodman of Alameda County Superior Court sentenced Adams to 70 years to life in prison, meaning Adams, now 26, will not be even eligible for parole until he is 86. According to Demian Bulwa's reporting in the SFChron (read it here), Judge Goodman took the occasion to forcefully express his frustration with violent crime in Oakland:

"In Mr. Adams' world, there are simply victims and predators, and when they see something they want, they take it," Goodman said in sentencing Adams in Alameda County Superior Court.

He called Adams a parasite in a city where residents are frustrated with violence. Then he read out all of Adams' convictions and their corresponding sentences, a process that took more than 15 minutes.

But is frustration and anger the best foundation for judgment? Consider this. Jared Adams is a scary guy right now, but what will he be like at 40? When was the last time you read about a 40 year old shooting up a service station, or carjacking an automobile in broad day light? It doesn't happen. Criminologists have known for decades that aging diminishes even the most potent criminal motivation.

So from 40 on, through his 50s, his 60s, his 70s, and his 80s, California tax payers will be paying some 50K a year plus inflation to house Mr. Adams, who will no longer pose virtually any risk to the community.

And how much do you think Mr. Adams will feel those decades going by as punishment? Assuming he hasn't become completely insane (which does happen), the experience of most long term prisoners suggests that after a decade or two, people adjust to prison life and no longer feel its deprivations.

So for forty of the next sixty years you, and I, and our kids, will be paying to house Jared Adams in a state prison, even though he will no longer pose a risk to us, and will no longer experience it as punishment.

Thanks Judge Goodman

Arnold, Lead

Listening to Governor Schwarzenegger on the California Report this morning (listen to KQED), it was impossible not to hear the frustration. The money to fix California's budget woes and reset our priorities is there, but only if, like Dillinger, we go where the money is, prisons. The scale of California's massive and unconvincing correctional system is such that there is no practical place to go to find the resources to fund California's groaning infrastructure priorities.

But while the Governor has always appreciated the need to reform our prison and parole system, he has yet to step before the people and make the case that the only meaningful reform must include changing who goes to prison and for how long. Currently that decision is made primarily by county prosecutors who have every incentive to over use prison and no responsibility for balancing the overall budget.

We can talk about how to accomplish that (whether by reduced upfront sentences, or more discretion to release prisoners early at the other end), but the only honest public conversation about getting California out of her crisis of mass imprisonment begins with that premise. I still believe that Arnold Schwarzenegger is the one politician in this state who could effectively begin that conversation.

The hour is late. Can you still lead?

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.