Dealing with Death
California Lawyer

Dealing with Death

by Gerald F. Uelmen

September 2012

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Fully one-third of this year's published opinions involved death penalty appeals. Of the 29 capital cases, 25 resulted in affirmance of the death judgment and 1 in denial of a writ of habeas corpus (3 were reversed). The only objection to a death penalty affirmance was Justice Werdegar's dissent in People v. McKinnon (52 Cal. 4th 610 (2011)), arguing that the majority had applied the wrong standard in upholding the dismissal of a juror based on responses to a written questionnaire. All of the other death penalty affirmances were unanimous.

Of the three reversals, two were unanimous determinations that the trial court had erred in excusing jurors. (See People v. Allen, 53 Cal. 4th 60 (2011); People v. Pearson, 53 Cal. 4th 306 (2012); and People v. Brents, 53 Cal. 4th 599 (2012).)

Two years ago I noted that the capital cases consumed 46 percent of the court's output for the yearlong period, as measured by the 1,369 pages of death penalty opinions. This year's 29 death penalty opinions took up 2,102 pages, well over half of the year's total. I also measured the proportion of oral argument time consumed this past year by death penalty cases: 34 percent, in line with the share of total cases they represent.

These are just two measures of the resources that could be freed up if voters adopt the Savings, Accountability and Full Enforcement for California Act (the so-called SAFE initiative, aimed at repealing the death penalty) in November. If the maximum penalty becomes life in prison without parole, not only will it save trial court resources by eliminating the need for penalty trials, it also will allow the appeals in these cases to be rerouted to the courts of appeal for initial review instead of sending them directly to the state's high (and very congested) court. That change would permit the California Supreme Court to grant more hearings in both civil and criminal cases, no doubt greatly reducing if not eliminating the current delays in processing civil and criminal appeals.

Aside from judicial resources, it turns out that the greatest expense of the death penalty is the cost to incarcerate inmates on death row during the many years it takes to dispose of their direct appeals, state habeas petitions, and federal habeas filings. The Department of Corrections estimates that confining a prisoner on death row costs about two and a half times more than keeping a "lifer" in a maximum-security facility for the same amount of time. Currently, we spend approximately $100,000 per year per death row inmate. The inmates whose cases were reviewed this year range in age from 35 to 68 years, with an average age of 46. Nearly all of the appeals decided this year involved crimes that occurred in the early 1990s. Now the 25 condemned inmates who lost their appeals will begin bringing habeas corpus petitions in both state and federal court, a process that currently takes an average of twelve years.

The sense of frustration over the death penalty docket that pervades the court was on public display May 1, when the court withdrew its threat to impose monetary sanctions against Berkeley attorney James Thomson for filing a 519-page habeas petition on behalf of a client who has been on death row since 1980. Thomson responded that the lengthy petition was necessary to exhaust all claims that might be asserted later in a federal habeas petition. Currently 328 prisoners on California's death row are awaiting the initial appointment of counsel to handle their habeas petitions. As the court was told, the threat of sanctions would only increase the difficulty in finding lawyers willing to take these cases. -Gerald F. Uelmen

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