Arthur L. Alarcon, a senior judge on the U.S. Court of Appeals for the 9th Circuit in Los Angeles, sharply crit­i­cized California’s death penal­ty sys­tem and chid­ed law­mak­ers for fail­ing to pro­vide ade­quate rep­re­sen­ta­tion and fund­ing for cap­i­tal cas­es. Judge Alarcon, a death penal­ty sup­port­er, wrote an arti­cle in the Southern California Law Review enti­tled ​“Remedies for California’s Death Row Deadlock” warn­ing that fail­ure to address California’s cap­i­tal pun­ish­ment prob­lems and its back­log of cas­es could effec­tive­ly end the death penal­ty in the state. He not­ed, ​“The delays in review­ing cap­i­tal cas­es will con­tin­ue to grow in California to the point where the United States Supreme Court may some­day hold that such impris­on­ment is, in and of itself, cru­el and unusu­al pun­ish­ment.”

Judge Alarcon believes the fail­ure of the California Legislature and the gov­er­nor to put more mon­ey into the process is at the root of the state’s prob­lems. California’s death row is the nation’s largest, with 667 peo­ple await­ing exe­cu­tion. The state has dif­fi­cul­ty find­ing attor­neys to rep­re­sent these inmates on appeal because it caps their hourly rate at less than half the aver­age award­ed by fed­er­al courts in California to attor­neys appoint­ed in some civ­il cas­es. ​“I would be hard-pressed to explain to a bar­tender or a non-lawyer acquain­tance how it is appro­pri­ate that an appel­late lawyer who is attempt­ing to save a human being’s life is com­pen­sat­ed at the rate of $140 per hour while the same lawyer could receive as much as $540 per hour to rep­re­sent an insol­vent cor­po­ra­tion in bank­rupt­cy pro­ceed­ings,” the judge wrote.

In addi­tion to not allot­ting enough mon­ey for tri­al attor­neys to rep­re­sent clients fac­ing exe­cu­tion, the judge observed that the state fails to pro­vide the funds nec­es­sary to inves­ti­gate death penal­ty cas­es. California only per­mits defense attor­neys to spend $25,000 inves­ti­gat­ing a cap­i­tal case on appeal, a fig­ure U.C. Berkeley law pro­fes­sor Elisabeth Semel said rep­re­sents just a frac­tion of the $500,000 many firms allo­cate to inves­ti­gate clients in post-con­vic­tion cas­es. Judge Alarcon’s arti­cle pre­dict­ed that the state’s prob­lems will only get worse, not­ing that no lawyers have been appoint­ed for any death row pris­on­er sen­tenced to death since 2003. Of the 17 sen­tenced to death in 2002, only two have legal coun­sel.

Santa Clara University law pro­fes­sor Gerald F. Uelmen said he wel­comed Judge Alarcon’s com­ments, though he feared some of his pro­posed solu­tions, such as remov­ing manda­to­ry review of cap­i­tal cas­es by the California Supreme Court, could lead to incon­sis­tent deci­sions. Uelmen, who is the exec­u­tive direc­tor of the California Commission on the Fair Administration of Justice, observed, ​“With 650 cas­es backed up, we have to look at all alter­na­tives.”
(H. Weinstein, Los Angeles Times, August 30, 2007). Read Judge Alarcon’s arti­cle. See Costs and Representation.

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