ARBITRARINESS: One U.S. Attorney in Upstate New York Stands Out in Seeking Federal Death Penalty

The U.S. Attorney for Western New York has filed more potential federal death penalty cases than most of his colleagues across the country.  Since taking office in March 2010, William J. Hochul, Jr. has petitioned the Justice Department to seek the death penalty against 24 people, more than his counterparts in cities like Los Angeles, Chicago, Detroit, Miami or cities in Texas.  Only two other federal prosecutors, both from more populous districts than Western New York, have filed as many death cases with Attorney General Eric Holder in the past 2 years.  None of Hochul's cases has yet resulted in a capital trial, much less a death sentence, but they have cost taxpayers more than $661,000 just in the past year.  This expenditure is more than the combined amount spent by the area's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years.  Kevin McNally, who heads the Federal Death Penalty Resource Counsel Project said, "I seriously doubt whether any of [Hochul's] defendants will actually face the death penalty at trial."  The Department of Justice spends an estimated $86 million a year on federal death penalty cases.  Since the reinstatement of the federal death penalty in 1988, three defendants have been executed.  David Kaczynzki, a member of New Yorkers for Alternatives to the Death Penalty, said,  "I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money."

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EDITORIALS: Indiana's Death Penalty "Too Costly and Applied Unfairly"

In a recent editorial in the Fort Wayne, Indiana, Journal Gazette, the paper welcomed the proposal by the state's Attorney General to reconsider the death penalty in light of its enormous costs.  At a Criminal Justice Summit held at the University of Notre Dame, Indiana Attorney General Greg Zoeller asked state officials to look at the death penalty from a practical perspective. He cited a recent capital trial in Warrick County that cost $500,000 in defense attorney fees alone. “The costs can’t be borne by smaller counties," the paper quoted Zoeller as saying.   "[S]o if the crime occurs in a large county you might be charged with the death penalty, in a smaller county you’re not. That raises some significant questions about fairness.”  The paper noted that most of the high costs cannot be avoided: "[D]eath penalty cases demand the strictest set of protections and safeguards to make sure the conviction and sentence are correct and appropriate. New DNA evidence exonerating a killer can free a prisoner serving a life sentence; it can’t help someone who has been executed," and concluded, "The death penalty is too costly and applied too unfairly. Life without the possibility of parole is the appropriate penalty – and far less costly to taxpayers."  Read full editorial below.

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STUDIES II: Pennsylvania's Death Penalty System in Need of "Immediate Reform"

A recent review of death penalty cases in Pennsylvania conducted by the Philadelphia Inquirer (see earlier DPIC post) has revealed a pattern of ineffective assistance of counsel leading to extensive delays and reversals of death sentences.  When the cases are litigated a second time, now with more competent representation, they frequently do not result in a death sentence.  Prosecutors have called the system a great disservice to victims' families.  Edward McCann, the first assistant district attorney in Philadelphia, said, "The length of time is unconscionable.  To have to make phone calls to people 20 years after the fact and tell them: 'By the way, you know that death sentence you thought was final 20 years ago? We've got to talk to you about that.' I think it's unconscionable to put people through that."  And yet, according to the Inquirer's study, "lawyers found to have provided ineffective assistance of counsel are routinely appointed to new cases," and some even become judges.  Moreover, "deficient legal work extends to appellate cases, where the very lawyers hired to correct the errors of others themselves prove ineffective." Appellate lawyers have filed legal challenges that cite little or no case law, and have grammatical errors.  Some appellate lawyers missed key filing deadlines or failed to appear for court hearings. Jack McMahon, a former homicide prosecutor and now a defense lawyer, pointed to the low pay for attorneys in capital cases as the source of the problem: "The government gives people a constitutional right to an attorney, but by lowering the [lawyers'] fees to pauper's level, they have severely hindered that right," he said. "To me, that's inexcusable, particularly in a homicide case, where the government is either seeking to kill you or put you in jail for the rest of your natural life." Pennsylvania Supreme Court Justice Thomas G. Saylor (pictured) called the legal work in some cases emblematic of the "unconscionable delay, disarray, and inconsistencies" in death-penalty appeals and called "for immediate reform."

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COSTS: State Budget Cuts Affecting Prosecution and Defense Across the Country

Even as death penalty cases continue to absorb tens of millions of taxpayer dollars, state budget cuts are affecting courts, public defenders,and district attorney's offices across the country, raising concerns about delays and inadequate representation. Reduced budgets are impacting all aspects of the court system, including civil and criminal cases, and delaying death penalty cases. Prosecutors are forced to ignore some violations, judges are delaying trials, and in some cases, those charged with violent crimes have been set free because speedy trial requirements can't be met.  "It's extremely frustrating," said Scott Burns of the National District Attorneys Association. "Frankly, the people that do these jobs have a lot of passion. They don't do these jobs for the money. They are in America's courtrooms every day to protect victims and do justice.  And they're rewarded with terminations, furloughs and cuts in pay."  On the defense side, in the last three years, Georgia has cut funding for the Georgia Resource Center, which represents indigent death penalty defendants in post-conviction proceedings, by $250,000, forcing the center to reduce its staff. "We've been running on a shoestring for years and we are minimally available to take care of all the guys on death row," said Brian Kammer, the center's executive director. "But with this kind of funding loss, we're getting crippled."

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Coalition Including Victims' Families and Law Enforcement Officials Launches Death Penalty Repeal Initiative

A broad range of citizens in California launched a signature campaign on October 25 to replace the death penalty with life in prison and no parole through a ballot initiative in November 2012.  The signature drive was announced at the city hall in San Francisco and was attended by murder victims' families and law enforcement officials, such as San Francisco Sheriff Michael Hennessey (pictured), who support the measure.  Hennessey cited a study released last June showing that California has sent $4 billion on the death penalty since it was restored in 1977. The ballot initiative is called the Savings, Accountability and Full Enforcement (SAFE) for California Act, and the campaign must gather 504,000 voter signatures in order to qualify for the election.  Natasha Minsker, statewide manager for the campaign, said, "Californians are ready for the SAFE California Act because now they realize we have wasted literally billions of dollars on a failed death penalty system.  It's time to take our resources and put them instead toward public safety."  The initiative directs funds saved to go to victims' families and to improve law enforcement.  California has not had an execution since 2006.  A recent Field Poll released last month showed that more voters (48%) would prefer the punishment of life without parole for someone convicted of first-degree murder than the death penalty (40%).

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COSTS: Ohio Judge Warns of High Costs in Upcoming Death Penalty Trial

An upcoming death penalty trial in Ohio will cost three to four times more than the cost of a life-without-parole trial, according to the trial judge, Michael Sage (pictured). The death penalty trial for Hector Alvarenga Retana, scheduled to begin on October 31, is expected to cost Butler County an estimated $250,000, according to the judge, not counting the cost of appeals.  He said, “[The cost] is so great we can’t afford to pay for that directly out of our ongoing budget. All the costs associated with that we take directly to the commissioners.”  A co-defendant in the case also faced the death penalty but was sentenced to prison for 78-years-to-life. Despite the high costs, defense attorneys are often paid very little.  Chris Pagan, who has defended several death penalty cases, recently said he would have to abandon this type of work because of the inadequate compensation death penalty defense attorneys receive: "The [compensation rates] are extremely low compared with the costs in other metropolitan areas. . . . I’m not doing it anymore I can’t afford it. You get 40 bucks an hour and my overhead costs more than that.”

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NEW VOICES: Alec Baldwin's Views on the Death Penalty in the Wake of Troy Davis Execution

A recent article by Alec Baldwin (pictured) in the Huffington Post offered the actor's reflections on the execution of Troy Davis in Georgia.  Baldwin said that his position on the death penalty "has little to do with opposition to any 'eye for an eye' sentiments," but instead, "It has to do specifically with the misapplication of the death penalty in terms of race, in terms of the potency of court-appointed counsel and in terms of the admission of DNA evidence in cases where tragically slipshod work by police and prosecutors is undone by modern technology."  Baldwin said that concern for wrongful executions was a significant reason that led to his opposition of capital punishment, even though some crimes evoked an emotional desire for executing the offender.  He concluded, "The death penalty costs us a lot money. . . . The death penalty costs us more money than it costs to house an inmate for life. We don't want to kill innocent people. And we don't need to kill the guilty ones either."  Read full text below.

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NEW VOICES: Author of California Death Penalty Says "It is time to undo it"

In an op-ed for the Los Angeles Daily News, Don Heller (pictured), a Republican, former prosecutor, and the author of the 1978 ballot initiative that reinstated California's death penalty, voiced his support for replacing the death penalty with life without parole. "It makes no sense to prop up such a failed system," he wrote.  He urged California voters to support a new ballot initiative that would abolish the state's death penalty, citing the system's "staggering" costs and the risk of executing the innocent. In discussing the failures of the initiative he authored over 30 years ago, he said, "I never contemplated the staggering cost of implementing the death penalty: more than $4 billion to date and approximately $185 million projected per year in ongoing costs." He said he also did not think about the chance that an innocent person could be executed: "I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility." Heller emphasized that he is not "soft on crime," but that "life without parole protects public safety better than a death sentence." Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. "Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety." Read full op-ed below.

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Florida's Death Penalty Marked by Arbitrary Decisions

Mike Thomas, columnist for the Orlando Sentinel in Florida, recently examined the arbitrariness of the state's death penalty system.  "There is no rhyme or reason here," he wrote. "A governor's decision on whose death warrant to sign, as well as a judge's decision on which appeal to accept, are about as arbitrary as a prosecutor's decision to pursue the death penalty.  We spend an estimated $51 million annually on this nonsense, and for our investment we haven't executed anyone going on a year and a half."  Thomas examined recent murder cases in the state, where the death penalty is pursued in one but not the other, concluding that "The odds certainly seem to favor those who can afford top legal talent."  He saw little chance for change in this process: "A new drug that Florida plans to use in its lethal cocktail finally survived all the legal challenges, including one by [death row inmate Manuel] Valle, only to be pulled by the manufacturer. A new drug will mean more challenges.  A federal judge recently ruled that Florida's death-penalty statute is unconstitutional because the condemning jury doesn't have to disclose which aggravating circumstances led to its recommendation.  On and on it goes."

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California "Taxpayers for Justice" Launches Initiative to Put Death Penalty on 2012 Ballot

After years of reports about the high costs of California's death penalty, including a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions, a group of Californians has announced a citizens' initiative to put death penalty repeal on the 2012 ballot. The group, Taxpayers for Justice, includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, "My frustration is more about the fact that the death penalty does not serve any useful purpose and it's very expensive." The high cost of California's death penalty has gained attention as the state faces major budget cuts.  A study released in June by U.S. Court of Appeals Judge Arthur L. Alarcon found that California's death penalty system is currently costing the state about $184 million per year. In April, California Governor Jerry Brown cancelled plans to build a new death row, saying "It would be unconscionable to earmark $356 million for a new and improved death row while making severe cuts to education and programs that serve the most vulnerable among us." The ballot initiative will be announced at a press conference in Sacramento on August 29, with Jeanne Woodford, the former warden of San Quentin State Prison who oversaw four executions, as one of the speakers.

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