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.