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.

Embarrased by Torture? How about Executions without Trial

Unable to make a clean break with the Bush administration's criminal policies at Guantanamo (and elsewhere), President Obama is now compounding the problem of how to try alleged terrorists with evidence derived from torture, by seeking to execute them without trial. According to William Glaberson's reporting in the NYTimes, the Obama administration is considering allowing martyrdom seeking detainees to plead guilty and be executed without trial.

Having shamed ourselves before the world with torture, we are no doubling down our shame by executing (itself a human rights violation) people without trial.

Enough. Close gitmo now!

Governing without Fear

I have not yet had a chance to see all of President Obama's remarkable speech in Cairo, but what I have seen (read the text here in the NYTimes) it continues his theme that progress in all spheres begins with diminishing the fear of the other.

Speaking to a Muslim audience in Cairo, Obama noted that Israeli's and Jews everywhere, continue to be shaped by the terrible trauma of the Holocaust. When Muslims deny the Holocaust, or trade in anti-Jewish stereotypes to voice their grievance against Israel, they push these fear buttons.

Around the world, the Jewish people were persecuted for centuries, and anti-Semitism in Europe culminated in an unprecedented Holocaust. Tomorrow, I will visit Buchenwald, which was part of a network of camps where Jews were enslaved, tortured, shot and gassed to death by the Third Reich. Six million Jews were killed – more than the entire Jewish population of Israel today. Denying that fact is baseless, ignorant, and hateful. Threatening Israel with destruction – or repeating vile stereotypes about Jews – is deeply wrong, and only serves to evoke in the minds of Israelis this most painful of memories while preventing the peace that the people of this region deserve.

When Obama asks his audiences to look past their own trauma to consider the position of the other, he is repudiating the politics of governing through crime in the strongest possible way. When we govern through crime we place our own fear and trauma at the center of reality, and cast the other, whom we fear, out into the darkness where they become every more frightening. The previous administration built this logic into a global war on terror that produced ever more fear and ever more terror. In Cairo, President Obama is laying down a vision of governing without fear that can unlock the peace process between Israel and Palestine, and that can unlock American's from their prisons of fear.

Security and the Police

The events of 9/11, subsequent terrorist atrocities, the threat of guns, drugs, international serious and organized crime ... license extraordinary and exceptional measures; the suspension of normal rules and procedures; derogation from rights and principles; and even states of emergency. In the name of security, things that would ordinarily be politically untenable become thinkable.

Lucia Zedner, Security (Routledge 2009)

Sarah Lyall reports in yesterday's NYTimes on the horrendous violence unleashed by London's famed Metropolitan police on overwhelmingly peaceful demonstrators at the G-20 Summit meeting in London this past April. After being driven into smaller groups inside enclosed spaces, a practice known as "kettling," demonstrators were subjected to repeated charges by baton and shield wielding police. More than 180 demonstrators have filed formal charges against the police, "some suffering from concussions, broken bones, and other injuries." A 47 year old news-stand employee, who was simply trying to get home, ended up dying after an officer hit him repeatedly over the head with a baton.

These scenes of mayhem may not seem too unfamiliar to Americans where police riots at the Democratic National Convention in 1968 remain well remembered, and where demonstrators have long been corralled away from the meetings of their leaders. In Britain, which more or less invented the police as a force of violence subordinated to the rule of law (as opposed to an armed extension of the King's power), this kind of police violence remains shocking.

In both countries, the demand for security against the threat of criminal or terrorist violence, has begun to truncate and fragment the civil rights and liberties that sustain a democracy. The police, an institution crucial to the practical enforcement of the rule of law in a democracy, are not the primary sources of this transformation, but they are easily infected by it as the agency most readily brought to bear on perceived threats to security. In the long run this transformation will lead to a slow normalization of emergency rule in which democracy collapses into an empty ideal and the insecurity of ordinary citizens attempting to use their streets for expression or commerce becomes permanent.

Fire My Wife!

Dear Governor Schwarzenegger,

As you and your colleagues in Sacramento set about trying to address California's mammoth budget deficit, there is one state institution that deserves to head up the list for elimination. It is our decrepit and dysfunctional death penalty. With over six hundred prisoners under sentence of death, California is spending hundreds of millions of dollars each year to litigate their cases in court. The beneficiaries of this spending include my family, since my wife is an attorney who represents death row inmates.

By commuting the sentences of all California death row inmates to life in prison, you would immediately and without help from those "girly men" in the legislature, eliminate or greatly reduce the expensive litigation in these cases and close whole offices like my wife's which exist only to represent those on death row. Those prisoners could be moved to high security prisons all over the state and San Quentin could be prepared for sale and or remodeling as a smaller re-entry facility.

Yes I am opposed to the death penalty, but that is not the point. Even the most vigorous death penalty supporter can find nothing to love in our pathetic death penalty. We have spent billions to execute about a dozen inmates over 35 years. Taking 20 to 25 years to execute someone eliminates any deterrent value, and sense of closure for the victims, and life in prison provides completely adequate incapacitation. In other words, we are spending billions just to say we have a death penalty, when we actually don't.

Before you cut funding from our kids' public schools, before you take county money needed to pay for cops and probation officers (read about the latest prospects in the SFChron) let's axe this useless institution.

Sincerely,



Jonathan Simon

Reality TV

A friend from southern California wrote the other day to share a nightmare that I have come to believe lives at the heart of the whole "governing through crime," "culture of control" regime. No, thankfully neither she, nor anyone in her family were killed or injured in a violent crime. (Sadly that happened to friend of ours who was killed in a robbery near an Oakland ATM in the late '80s or early 90s). That happens to many, but even in America it is not widespread enough (and is too concentrated among the poor) to found a political regime. The nightmare we can all imagine, if we haven't actually lived it, is a potentially violent "criminal" penetrating or attempting to penetrate the sacred precincts of our home. It is that nightmare that keeps us seeking to live as far as possible from the city center where we imagine such criminals live, and which leads us to squander billions to mass incarcerate as many of them as possible.

In this case, Pam's 11 year old son Ellis and a friend were enjoying a swim in his grandparents home (around the corner from their Studio City house), when an LAPD chase of two reported shooters in a BMW terminated in a pretty spectacular automobile accident just outside. In a remarkable helicopter live video and voice over from WABC7.com, the final minutes of the chase and the aftermath have now been made available to millions.

After striking several parked cards on the suburban residential street and rolling or nearly rolling over, the BMW came to a halt. The driver and passenger can be seen leaping from the car and running toward the backyard of one of the houses. One of the runners stops (apparently ready to surrender to police who are only seconds behind), but the other jumped over what looks like a wooden fence or gate into the yard where Ellis Nicely and his pal were swimming. At this point the anchors who have been reporting the chase and the foot run as if it were a major golf tournament (referring to the exit from the car as a "foot bail-out") begin to talk in extremely anxious terms of the threat to the kids who can be easily made out in the pool as the helicopter stays over the fleeing felon who appeared to move as rapidly as possibly through their yard and over the next fence (according to Ellis, advising the boys to "chill-out" as he streaked by).

In addition to enjoying this truly enthralling piece of reality TV (I don' see how Hollywood writers can survive if the LAPD can keep delivering product like this) consider the incredibly potent doses of imaginary and real danger took place here.

To millions watching, the whole gospel of governing through crime was laid down. "You can never be truly secure from demonically animated violent criminals who are trying constantly to penetrate your home and do unspeakable things to your most precious assets. Thank G-d the police (and TV news) are on the spot."

To a few others (hopefully including the handful of readers of this blog) a parallel world opens up. There, the LAPD, based on reports of a possible shooting initiate a high speed car chase through a residential neighborhood that could easily have killed people. Just imagine if Ellis had been getting ready to mount his bike on the street outside the home. Meanwhile the runner, while clearly someone willing to engage in extremely risky behavior to self and others, appears to have zero interest in penetrating the homes of suburban people to mess with their kids. (Indeed, he appeared reasonably to be seeking some place unoccupied by anyone else to hide in).

Can We Afford the Death Penalty?

My colleague Elisabeth Semel (Director of Berkeley Law's death penalty clinic) raises some troubling questions about California's dysfunctional death penalty on the oped page of the SacBee. Lis highlights the perversity of watching California spends millions to maintain a system that whatever its theoretical benefits has contributed so little to our security or prosperity (death penalty supporters should note that execution has "resolved" only about a dozen cases since the penalty was restored by constitutional amendment in 1978 at an overall cost in the billions), while it gets ready to gut its already anemic education, law enforcement (as opposed to corrections), and social service budget.

Californians are all too familiar with the fact that while we rank 47th in the nation in per-pupil public school spending on a cost-adjusted basis, we are first in what we pay for prisons and on the administration of the death penalty. California is housing so many people on death row that it plans to build a new facility. The price of construction is $400 million and, over 20 years, taxpayers will pay $1 billion in operating costs.

Lis also reminds us of some distinguishing features of our golden state government in its executioner mode. Take for example the lethal injection protocol. Litigation over the method used to chemically kill people in California has been going on for some years even after a Supreme Court decision acknowledging the real possibility of excruciatingly painful torture to prisoners if this execution methodology is flawed. Lis' clinic has been directly involved in that litigation (something that gives those of us on the Berkeley Law faculty something to be very proud of) but the point she raises in the oped is the role of secrecy in government's approach.

It took more than three years of litigation, which the state lost repeatedly, before the attorney general's office conceded that the execution protocol must be open to public scrutiny.

Indeed, throughout the legal challenges to California's method of lethal injection, the governor, the attorney general and the Corrections Department unswervingly opposed any disclosures.

Just as with our federal government and the "war on terror," our state government finds the "war on crime" (of which capital punishment is the symbolic equivalent of nuclear weapons) an irrepressible temptation to dictatorial rule in the name of protecting the people against their darkest fears.

As Lis well appreciates, it is these temptations and fears we can no longer afford