It's Time for California to End Its Death Penalty

Proposition 34 would save California taxpayers billions of dollars and leave the state no less safe.

Lou Dematteis/Reuters

It is one of the most wasteful and inefficient domestic programs ever conceived, costing state and federal taxpayers billions of dollars while succeeding in its objective only a small fraction of the time. It's an embarrassment for one branch of government in particular, the executive branch, which zealously protects its turf by playing on emotion and fear while ignoring the magnitude of the problem. Over and over again, judges have recommended that the program be reformed, or halted, because it is arbitrary and capricious. Over and over again, the local lawmakers responsible for it have refused to accede. So still the program rolls on.

Few want to make the capital investment it would take to fix the problem. Instead, the program's supporters, and there still are many, say the answer is to speed up the process. But shortcuts like that are precisely what has doomed the program in the first place. "Good enough for government work" doesn't work here. For the program to succeed, things have to be done right, from the start, and that means a level of financial commitment no one, ever, has been willing to bear. Many people respect the theory behind the program. But in the practical application of it no one cares enough about the details to ensure they are done right.

The expensive, wasteful program exists in a place wracked by public debt, a place where state and local taxes are perennially the highest in the land. Hard-working parents can barely afford to send their children to close-by public universities because the venue's finances are in such bad shape.

Suddenly, in these grim circumstances, the voters are given a choice. They can choose to eliminate the program, and, in doing so, begin immediately to save at least $100 million each year -- money which could then be used to erase the debt, or fix local schools, or fund public works, or simply lower taxes.

A no-brainer, right? Of course voters would seize the opportunity to free themselves of the program's financial burden. Of course people would choose to spend public funds in a more productive, less wasteful fashion. What could be more rational than that?

Alas, there is rarely anything rational about the death penalty, and today, in California, with just a few weeks to go before Election Day, voters are roughly split on what to do with Proposition 34, a well-timed and much-needed ballot initiative which seeks to end an epic failure of a government program: the state's death penalty regime.


Last year, the Loyola Law Review published one of the most extensive condemnations yet of the dubious California capital punishment regime. Authored by 9th U.S. Circuit Court Judge Arthur L. Alarcon and law professor Paula M. Mitchell, the 184-page report chronicled how California ruined, through decades of ignorance and self-deception, whatever ability it may have once had to fairly and efficiently administer a death penalty. It's literally a textbook example of how craven politics and ideology can wreck public policy, how the governed can be snookered by government into believing that they can have it all. From the introduction:

California voters have been led to believe that the capital punishment scheme they have been financing for the last 32 years would execute those murderers guilty of committing "the worst of crimes." This has not occurred. Instead, billions of taxpayer dollars have been spent to create a bloated system, in which condemned inmates languish on death row for decades before dying of natural causes and in which executions rarely take place.

No part of the "bloated" capital system works as it should. For decades, California voters were encouraged through ballot initiatives to expand the scope of the state's death penalty laws, and they did so, seven times between 1978 and 2000. The argument for this expansion was that more capital cases would result in more executions, which would result in more public safety and more room in state prisons. None of the four elements in that argument have proven true. The more California has pressed for more capital cases, the worse its system has became. Today, virtually every reasonable observer agrees that it is unmanageable.

As Alarcon and Mitchell tell us, capital trials are terribly expensive -- 10 to 20 times more expensive than other murder trials -- and rarely perfect. Convicted capital defendants are "warehoused" in prison for four or five years just waiting to get defense counsel appointed to take them through their automatic appeals. On average, it takes roughly 10 years for the California Supreme Court to review a capital case on direct appeal. And then, because the state does not allocate enough funds to permit defense attorneys to do their investigation right the first time, California has to pay for inmates to spend another decade or so in costly death-row cells while new attorneys are found to represent them in their extensive federal appeals.

The result is jaw-dropping:

Our research has disclosed that these death penalty initiatives have created the nation's largest death row at a cost of roughly $4 billion to state and federal taxpayers for those judgments of death imposed since 1978. The state is poised to spend an additional $1 billion in the coming years to construct an even larger death row facility that will accommodate over 1,000 condemned inmates and will require hiring 347 additional staff.

Since executions are virtually nonexistent in California, the planned facility is expected to fill rapidly and reach capacity by the year 2014. Despite the fact that, as of May 2011, California's death row houses over 714 condemned inmates, it has carried out only 13 of the 1,242 executions that have occurred in the country since 1976.

When confronted with these facts, death penalty proponents always have an easy answer: just execute the condemned faster. It's their fault their cases take so long! But the folks who cast such blame are also quick to say that they don't want to speed up capital cases by spending more public money on better defense attorneys, either before or after trial. Instead, this lobby argues that the answer is to give capital defendants fewer due process rights, to streamline the process by guaranteeing that capital cases are less fair and less accurate. Not only is this dubious public policy, it's also patently unconstitutional.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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