It's Time for California to End Its Death Penalty

By Andrew Cohen

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

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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.

ANDREW COHEN ON CAPITAL PUNISHMENT

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.

THE DEATH PENALTY IN CALIFORNIA

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.

Death-row inmates are part of a criminal justice system, in California and everywhere else capital punishment exists in America, which requires certain minimum due process rights before permitting an execution to proceed. Capital cases are delayed in California not just because there are too many of them for the criminal justice system to process at any given time. They are delayed because they often involve material errors in fact or law which our justice systems strive to fix. Three men have been exonerated as innocent off California's death row. At least 32 have died in state prison with their federal appeals still pending.

All of this would be bad enough if state lawmakers were willing to make tough decisions to fix the problem. But many of those lawmakers, and many other public policy leaders in the state, won't even acknowledge the scope of the problem, let alone fix it. Last decade, for example, lawmakers commissioned a statewide study of the effectiveness of the death penalty. But when the panel of state experts came back in 2008 with their recommendations on how to fix California's capital punishment regime, lawmakers simply ignored the recommendations. What does the future portend? Waste. Earlier this year, Alarcon and Mitchell updated their report:

Our updated analysis reveals that maintaining the current dysfunctional death-penalty system in California from now until 2050 will cost taxpayers a minimum of an additional $5.4 billion, and possibly as much as an additional $7.7 billion, over the cost of [Life Without Parole]. During that time, approximately 740 more inmates will be added to death row and an additional fourteen executions will be carried out (at the state's current rate of execution), while more than five hundred of those inmates will die on death row of natural causes or suicide before the state executes them.

These are the facts. California pushed for such a broad death penalty that it eventually got one that it cannot manage. The state spends a fortune for its death penalty but is unwilling to spend enough to do it right. And because state legislators will not spend enough to do it right, will not give capital defendants the satisfaction of good lawyers and swift appeals, capital cases linger for decades. It's no wonder that hundreds of former public officials, including judges, cops, and prosecutors closest to the issue, have come to the conclusion that the death penalty in California is broken beyond repair.

PROPOSITION 34

In their updated report, Alarcon and Mitchell explore the origins of Proposition 34. Prop 34 follows yet another failed legislative effort, in 2011, to replace California's death penalty with a "life without parole" option for convicted murderers. And it offers Californians a way to redress the wrongs they themselves created through their previous initiatives. Having ruined capital punishment by extending it beyond where state resources could follow, in other words, voters now have a chance at redemption. Here, from the California Attorney General, is the summary of the text of the initiative:

Repeals death penalty as maximum punishment for persons found guilty of murder and replaces it with life imprisonment without possibility of parole. Applies retroactively to persons already sentenced to death. Requires persons found guilty of murder to work while in prison, with their wages to be applied to any victim restitution fines or orders against them. Creates $100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases.

Predictably, the death penalty lobby is made up mainly of prosecutors, the police, and victims' groups, many of the same constituents whose zeal for capital punishment (and failure to level with voters about the true costs of capital punishment) contributed to California's expensive problem in the first place. Like mockingbirds, they are all back on the line now with the same tired arguments that have been made, and proven false, all over the country. No, eliminating the death penalty in a given jurisdiction doesn't make the jurisdiction safer. No, repealing the death penalty won't turn murderers loose on the streets.

That these shibboleths are still broadly uttered means that people still believe them. And, indeed, despite the growing financial case against capital punishment, despite the utter failure of local politicians to fix the problem, recent polls suggest that the vote over Proposition 34 is very close. Fear and ignorance are hard to overcome, especially when the topic by its nature presses up against the boundaries of reason. But today fear and ignorance, retribution and vengeance, are pretty much all the death penalty lobby has left in California. The law and logic, the evidence and the prison bill, all are on the side of repeal.

When they aren't trying to scare the bejeezus out of voters by exaggerating the impact of Proposition 34 on public safety, the death penalty lobby argues that the repeal of capital punishment will actually increase state costs by eliminating the bargaining power of prosecutors in murder cases. Under this theory, there will be more murder cases brought to trial because more murder defendants will choose to take their chances with jurors, knowing the worst they can get is a life sentence without parole. This argument was successfully made to the Legislature in 2011 to block a legislative solution to this problem.

The first answer to this argument is: prove it. Mitchell, the author of the reports cited above, which I find to be the most credible reports I have yet read on California's sentencing scheme, says that proponents of Proposition 34 have not proven the claim that repeal would increase prosecution costs. Mitchell told me Sunday: "John Van de Kamp [former Los Angeles County District Attorney, former federal prosecutor, former federal public defender and now supporter of Prop 34] and others have publicly stated that using the threat of the death penalty to secure guilty please in first-degree murder cases is unethical and not done."

The second answer to the argument is: so what? If we know that capital trials are 10-20 times more expensive than non-capital murder trials, it would mean that California would have to endure 10-20 times more murder trials before the costs of those trials equaled the costs of capital trials. And even then the state would see savings because the post-conviction review process in non-capital cases is far less significant than it is for capital cases. In any event, wouldn't it be great if the police and prosecutors spent less time lobbying for capital punishment and more time prosecuting murder cases?

For me, the fight over Prop 34 is a fight about context. If voters look only at the convicted murderers whose lives will be spared, the measure will be in trouble. But if voters look beyond these condemned prisoners, if they look to the billions of dollars in savings that would accrue to all Californians through the repeal of capital punishment, then the measure has a decent chance. It's significant that Prop 34 does better in polling the more information voters are given about its benefits. It's significant because it suggests that people have an open mind on the topic, and that is always a good sign when it's time for the old to give way to the new.

THE CHOICE

I have many dear friends who live in California. Some are Republicans. Some are Democrats. But all share one immutable complaint -- taxes there are too high even as public services are cut to ease massive budget deficits. For years, I have listened to these earnest complaints without being able to muster an answer.

Now, I have one. If Californians want to do something meaningful to help reduce their public costs, if they want stop shoveling good money after bad on an unworkable state program, they should vote to end capital punishment in the Golden State. If they don't, I don't want to hear any of them complain about state taxes. Ever.

The economic case against capital punishment now is overwhelming. California simply cannot afford to spend the money it would take to do capital punishment right. Anddoing it wrong, as the above studies have shown, has exacted a terrible toll. The state can't go forward on the death penalty; the legislature won't pay for it. It can't go back on the death penalty; the Constitution does not permit it. To go sideways means more money wasted. So it has to just get out -- to end a social experiment which has failed, which cannot be fixed, and which stands today as a terrible symbol of a proud state's justice system.

There is no shame in ending a bad policy. In fact, you could argue that there would be shame only in ignoring these statistics in the name of "justice." But what is justice anyway? Is it depriving a child of a better, safer elementary school in order to pay for the additional costs of a capital trial? Is it precluding an elderly person from a needed social service because the money is being spent on death row guards? It is keeping the price of California's in-state public universities outrageously high? The ancient concept of "an eye for an eye" is attractive in the abstract. In reality, in a nation bound by constitutional rights, its costs are profound.

The murderers whose lives would be spared by Prop 34's victory are "winning" nothing but the chance to live in a cell the rest of their lives. California will not be a more dangerous place if this were to occur. It will instead be a place that has decided to spend its money on things other than capital litigation.

My laid-back Californian friends are always telling me to "let things go," to move on from the bad things in life and to focus instead upon shaping a better future. It's time now for California to just let the death penalty go, to allow the failed experiment to drift back into the mist of history, and to move on to a wiser, fairer, less expensive path.

This article available online at:

http://www.theatlantic.com/national/archive/2012/10/its-time-for-california-to-end-its-death-penalty/263588/