Jake Flaherty

July 2009
By Gerald F. Uelmen

With the recent abolition of the death penalty in both New Jersey and New Mexico, in favor of life imprisonment without parole, California activists are looking for new ammunition with which to challenge the state's death penalty. Their task is formidable, because any change in California's death penalty law would require a vote of the people, and recent polls show support for the death penalty here remains around 65 percent. The New Jersey and New Mexico experience, as well as ongoing battles in seven other states (Colorado, Kansas, Nebraska, New Hampshire, Maryland, Montana, and Washington), strongly suggest that three arguments against capital punishment may carry the day:

- It takes too long;

- It costs too much; and

- We haven't eliminated the persistent risk of executing an innocent person.

Plenty of support for all three of these arguments can be found in the final report of the California Commission on the Fair Administration of Justice, issued one year ago. I served as executive director of the commission.

The commission, established by the state Senate Rules Committee, was asked to study and review the administration of criminal justice in California to determine the extent to which that process has failed in the past, and to make recommendations to ensure that the process is just, fair, and accurate. In carrying out this charge, the commission undertook a thorough review and analysis of the administration of the death penalty in California, the first such official analysis since it was restored in 1978.

The commission concluded that our death penalty law is dysfunctional, largely because its administration is underfunded. If we want to fairly implement a death penalty law as broad as California's, our report stressed, we are going to have to pay for it, and it will cost plenty. Although the commission majority took no position on abolishing the death penalty (a move favored by 10 of 22 members), the report clearly demonstrates that in California, it needs major reform.

It takes too long
California has the largest death row in the nation. More than 680 inmates sit on our death row at San Quentin, compared to 397 in Florida and 393 in Texas. We also have the slowest process: The lapse of time from judgment to execution in California now ranges from 20 to 25 years, compared to 14 years in Florida and 10 in Texas. The principal cause of the lengthy delays in California is a lack of counsel for both direct appeals and state and federal habeas corpus proceedings. Currently, 79 death-row inmates have no counsel for their appeals, and 291 lack counsel for their habeas proceedings. The governor and Legislature have consistently failed to provide adequate funding to staff the State Public Defender's office and the California Habeas Corpus Resource Center to handle these cases; a total of 119 inmates have been on California's death row for more than 20 years. Thus, in most cases, a sentence of death in California actually means a sentence of life without parole. The only difference is, it's served on San Quentin's death row. But the leading cause of death on death row is natural causes, followed by suicide. Executions are third: We have had 13 since 1978.

These death penalty cases have also seriously clogged the California Supreme Court. Currently 80 fully briefed death appeals and 100 fully briefed habeas petitions await argument and decision. Even after the lawyers are appointed and the briefs are in, there's a three-year wait to argue the case before the Supreme Court.

It costs too much
When the death penalty is sought, the prosecution and defense must actually prepare for two trials—one to determine guilt, the other to determine the sentence. For the latter, the defense must conduct an exhaustive investigation of the defendant's past to locate any mitigating evidence that might persuade a jury to choose a life sentence rather than death. And because the jury must be "death-qualified," including no one with fixed opinions for or against the death penalty, potential jurors must be subjected to intensive, individualized voir dire questioning. The commission concluded that these elements add approximately $500,000 to the cost of a homicide trial. But because prosecutors refused to cooperate in our research, we were unable to ascertain how many homicide trials in which the death penalty is sought are conducted each year in California. We do know that the state adds about 20 inmates a year to our death-row population, and we were informed that in about half the cases where the death penalty is sought, the jury rejects death in favor of a life sentence. Thus, trying 40 death cases a year would add $20 million to the annual costs California counties must pay.

Then, once a death verdict is returned, a direct appeal to the California Supreme Court ensues, as well as federal habeas corpus petitions in both state and federal courts. The habeas corpus review is essential to assure that the defendant received adequate assistance of counsel in the trial court. Federal courts reviewing California death judgments have thrown out 70 percent of the cases they have heard, most often on grounds of ineffective assistance of counsel. Because the post-verdict proceedings are handled by state agencies, which keep more accurate budget records than the individual counties, we were able to ascertain that the appeals and habeas proceedings add $54.4 million per year to the costs of death cases.

Surprisingly, though, the most dramatic cost added to death penalty cases is the expense of confining the defendant on death row for the 20-plus years it will take to resolve the case. Keeping one inmate isolated in a single cell on San Quentin's death row costs $92,000 more per year than it would to keep him in the general population of one of California's other maximum-security prisons. This adds about $63 million per year to the cost of California's death penalty law.

The bottom line: A conservative estimate of the current cost of our death penalty law in California is $137.7 million per year. Implementing the commission's recommendations to reduce delays in California down to the national average of 12 to 14 years would cost another $95 million, for a total of $232.7 million. By contrast, narrowing our death penalty law to incorporate 5 special circumstances instead of 21 would save $100 million per year, the commission estimated.

The risk of wrongful executions
The commission learned of no credible evidence that California has ever executed an innocent person. Nonetheless, we could not conclude with confidence that we have eliminated the risk of doing so. All of the factors identified as enhancing the risk of wrongful convictions (mistaken eyewitness identification, false confessions, jail-snitch testimony, laboratory errors) are equally present in capital and noncapital cases, and they are just as prevalent in California as they are elsewhere in the country. But all of the commission's legislative proposals to reduce these wrongful-conviction risks were vetoed by the governor. Nationally, 205 defendants convicted of murder from 1989 through 2003 have been exonerated. Seventy-four of them had been sentenced to death. Fourteen of the 205 cases took place in California, although none were capital cases.

Not surprisingly, the states that spend the least money and are fastest in processing death cases are the ones with the highest rate of death-row exonerations. Florida has had 22 death-row exonerations since the early 1990s, and Texas has had 8.

Conclusion
At some point California voters will have to determine whether the benefits of having a death penalty law outweigh its costs. (The Legislature has yet to introduce a single bill to enact any of our death penalty–related recommendations.) Under our present system, the benefits are few. With the exception of a few rabid prosecutors, no one seriously suggests that the threat of the death penalty operates as a deterrent to crime. The homicide rate is no higher in San Francisco, where the death penalty is no longer sought, than it is in other California counties. The suggestion that the family members of victims will gain satisfaction from witnessing the death of a perpetrator who took the life of a loved one is a cruel delusion: Most will be dead long before the perpetrator is ever executed. A sentence of death in California is, for most defendants, a sentence of life imprisonment at four times the usual cost. In our current climate of severe budget cuts for essential services, we can certainly come up with better ways to spend money than to keep flushing it down the toilet of California's dysfunctional death penalty.

Gerald F. Uelmen is a professor at Santa Clara University School of Law.