A recent op-ed by Professor Gerald Uelmen of Santa Clara Law School in the Sacramento Bee high­light­ed major con­cerns about California​’s death penal­ty, includ­ing its high costs and the dif­fi­cul­ty in find­ing com­pe­tent rep­re­sen­ta­tion for death row inmates. Uelmen also not­ed that California has the broad­est death penal­ty law in the coun­try, which allows for more death-eli­gi­ble offens­es than oth­er death penal­ty states. According to the op-ed, ​“Although death penal­ty laws are sup­posed to nar­row the dis­cre­tion of pros­e­cu­tors and juries by requir­ing ​‘spe­cial cir­cum­stances’ for a death sen­tence, in California there is noth­ing ​‘spe­cial’ about spe­cial cir­cum­stances. Virtually every first-degree mur­der can be made into a death case if the pros­e­cu­tor choos­es.” California cur­rent­ly has the largest death row in the United States with more than 700 inmates, more than 40% of whom are still await­ing for the appoint­ment of a lawyer to han­dle con­sti­tu­tion­al­ly-man­dat­ed appeals. Meanwhile, the state has cut the bud­get of the Public Defender’s Office, lim­it­ed the role of the California Habeas Corpus Resource Center, and failed to appro­pri­ate funds need­ed to appoint pri­vate lawyers. California is also plan­ning to build a new $400 mil­lion death row prison that will house inmates at three times the cost of hold­ing those with life with­out parole sen­tences. Prof. Uelmen was also Executive Director of the California Commission on the Fair Administration of Justice that care­ful­ly exam­ined the state’s death penal­ty. Read full op-ed below.

The Conversation: Can California con­front costs of the death penalty?

As the cur­tain comes down on California’s era of excess, the fate of our death penal­ty law is a true conun­drum. What’s frus­trat­ing the pub­lic demand for exe­cu­tions is overkill.

While that might seem like an out­ra­geous claim in a state that has exe­cut­ed only 13 peo­ple in 32 years – espe­cial­ly when com­pared to the 463 exe­cu­tions in Texas dur­ing the same peri­od – the fact remains that our eyes were much big­ger than our stom­achs when we adopt­ed the 1978 ini­tia­tive that defines death-eli­gi­ble offens­es. The politi­cians who stim­u­lat­ed our appetites nev­er stopped to assess how much cap­i­tal pun­ish­ment the California crim­i­nal jus­tice sys­tem could han­dle, or how much it would cost. And they designed a sys­tem in which no one would ever stop to ask those ques­tions, with 58 pairs of hands on the spig­ot. The result­ing over­load has sim­ply par­a­lyzed the system.

Up until the 1970s, California exe­cut­ed about a dozen mur­der­ers each year, with an aver­age wait of three years between sen­tenc­ing and exe­cu­tion. When the U.S. Supreme Court final­ly got seri­ous about accord­ing due process to the con­demned, by demand­ing the appoint­ment of com­pe­tent lawyers and requir­ing those lawyers to inves­ti­gate and present mit­i­gat­ing cir­cum­stances to juries, it was pre­dictable that the process would take longer. The aver­age delay in the U.S. is now 12 years. In California, it is 24 years.

The biggest rea­son for the delay in California is that the demand for com­pe­tent, expe­ri­enced death penal­ty lawyers vast­ly exceeds the avail­able sup­ply. The size of the avail­able sup­ply is direct­ly relat­ed to the eco­nom­ics of prac­tic­ing law in a state like California. More than 40 per­cent of the 713 inmates on California’s death row are still wait­ing for the appoint­ment of a lawyer to han­dle the habeas cor­pus reviews to which they are constitutionally entitled.

The delay in appoint­ing habeas lawyers until the direct appeals are com­plet­ed means the habeas pro­ceed­ings will take twice as long. While cut­ting the bud­get of the State Public Defender’s Office and lim­it­ing the growth of the California Habeas Corpus Resource Center, both of which sup­ply full-time, com­pe­tent lawyers to rep­re­sent death row inmates, the gov­er­nor and the Legislature have failed to appro­pri­ate the funds need­ed to appoint pri­vate lawyers to meet the need.

Meanwhile, California pros­e­cu­tors make full use of the broad­est death penal­ty law in the coun­try to pack the courts with death penal­ty cas­es, seem­ing­ly obliv­i­ous of the costs and bur­dens these cas­es are impos­ing on our sys­tem of jus­tice. Although death penal­ty laws are sup­posed to nar­row the dis­cre­tion of pros­e­cu­tors and juries by requir­ing ​“spe­cial cir­cum­stances” for a death sen­tence, in California there is noth­ing ​“spe­cial” about spe­cial cir­cum­stances. Virtually every first-degree mur­der can be made into a death case if the prosecutor chooses.

Among California’s 58 elect­ed dis­trict attor­neys, many choose to pur­sue polit­i­cal­ly pop­u­lar death sen­tences with extrav­a­gant fre­quen­cy. Why not? Most of the $54.4 mil­lion we spend each year for cap­i­tal appeals and habeas reviews comes out of the state bud­get, not county coffers.

Across the nation, oth­er death penal­ty states are trim­ming their sails as the costs and bur­dens of death penal­ty cas­es grow. Last year saw the low­est num­ber of new death sen­tences in 33 years, with only nine in Texas and one in Virginia, the states which lead the exe­cu­tion parade. But in California, we added 29 more to our death row, one-fourth of the nation­al total. Nearly half of them came from Los Angeles County. None came from San Francisco. The two dis­trict attor­neys run­ning for attor­ney gen­er­al have very dif­fer­ent views of the death penalty.

The result of all this dys­func­tion is gridlock.

Since death cas­es go direct­ly to the California Supreme Court with­out inter­me­di­ate review, much of the bur­den has fall­en direct­ly into the laps of the sev­en jus­tices who serve on the Supreme Court. Currently, the court has 77 ful­ly briefed death penal­ty appeals and 89 ful­ly briefed habeas cor­pus peti­tions await­ing deci­sion. Even after the lawyers are appoint­ed and the briefs are in, it’s a two- to three-year wait to argue the case.

While the court affirms 90 per­cent of the death sen­tences it reviews, those deci­sions are sub­ject to chal­lenge in fed­er­al court, where 62 per­cent have been reversed, many because of inef­fec­tive assis­tance of coun­sel or pros­e­cu­to­r­i­al mis­con­duct. The cas­es go back to the tri­al courts for new penal­ty tri­als, where many are dis­posed of with pleas to life-with­out-parole sen­tences. Those that are retried then begin anoth­er trip through the appeals process.

What can we do about it? Absolutely nothing.

Like so many press­ing issues in California, putting lim­its on the death penal­ty has been tak­en off the leg­isla­tive table. Since we enact­ed our death penal­ty law by pop­u­lar ini­tia­tive, the only way we can lim­it it or abol­ish it is with anoth­er ini­tia­tive. The most recent polls show 70 per­cent of vot­ers sup­port the death penal­ty, mak­ing an ini­tia­tive to lim­it or abol­ish it a polit­i­cal impos­si­bil­i­ty. In oth­er states, leg­isla­tive bat­tles to replace the death penal­ty with life-with­out-parole sen­tences are suc­ceed­ing. New Jersey and New Mexico took that step two years ago.

The delays imposed by glitch­es in California’s lethal injec­tion pro­ce­dure, as frus­trat­ing as they might be, are tem­po­rary. We will be able to resume exe­cu­tions next year, with a steady sup­ply of lethal drugs and a gov­er­nor ready to car­ry out ​“the peo­ple’s will.” But the pace of exe­cu­tions will always be inex­orably slow­er than the pace of death sen­tences. Most of those sen­tenced to death in California will beat the sys­tem by dying before they can be exe­cut­ed. The lead­ing caus­es of death on death row are death by nat­ur­al caus­es, fol­lowed by sui­cides. Meanwhile, California will spend more than $400 mil­lion to build a new death row to ware­house the con­demned at triple the cost of life with­out parole sentences.

Ironically, there is one per­son in California who could do some­thing about it: Thelton Henderson. He is a fed­er­al dis­trict court judge in San Francisco. Later this year, he will rule on a broad chal­lenge to the con­sti­tu­tion­al­i­ty of California’s death penal­ty law, on the ground that it sim­ply ignored the U.S. Supreme Court rul­ing that states must lim­it the breadth of their death penal­ty laws by leg­isla­tive­ly guid­ing the dis­cre­tion of pros­e­cu­tors and judges.

In that chal­lenge, brought by the California Habeas Corpus Resource Center, the lawyer who draft­ed the ini­tia­tive that gave California our death penal­ty law in 1978 tes­ti­fied that the march­ing orders he received from state Sen. John Briggs were essen­tial­ly to open the flood­gates. The water is still ris­ing. Henderson’s rul­ing could drain the swamp and require a fresh start. Perhaps that would allow us to pur­sue the advice offered by U.S. Supreme Court Justice John Paul Stevens. In final­ly con­clud­ing that the cur­rent state of the death penal­ty in the U.S. vio­lates the Constitution, he suggested:

“The time for a dis­pas­sion­ate, impar­tial com­par­i­son of the enor­mous costs that death penal­ty lit­i­ga­tion impos­es on soci­ety with the ben­e­fits that it pro­duces has surely arrived.”

Whether California is still capa­ble of dis­pas­sion­ate, impar­tial con­sid­er­a­tion of any­thing remains to be seen.

(G. Uelmen, ​“The Conversation: Can California con­front costs of the death penal­ty?,” Sacramento Bee, October 10, 2010). See Innocence and Representation. Read more Editorials about the death penalty.

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