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.