Proposition 34

Initiative Statute — Death Penalty Repeal; Replaced With Life Prison Sentence Without Parole; Life Prisoner Work Requirement; Money To Address Unsolved Homicides and Rapes.

Our Death Penalty System

Since California reinstated a death penalty in 1978 for murder committed with “special circumstances” the state has executed 13 inmates  (though some authorities inexplicably claim 14 deaths, we decided we’d stick with the number provided by the Department of Corrections) and has spent 4 billion dollars on its death penalty system, working out to approximately $300,000,000.00 per completed death sentence.  A 2011 study penned by a law professor and a federal judge estimate that the total costs of the system will exceed $9 billion by 2020 (meaning costs are on a sharp upward trajectory – $4 billion for the first 30 years, $5 billion for the next 10).  (Id.).

In 1978, there were six people on death row. The Secretary of State’s Legislative Analyst reports that since then, while 13 death sentences have been carried out, 83 death row prisoners have died prior to execution, and 75 prisoners have been removed from death row as a result of the discovery of process errors that changed their punishment from death to something else (i.e. either not guilty or a non-death sentence).  Currently there are 725 death row inmates awaiting execution in California – each in various stages of the appellate process.  If these trends continue, we can expect that nearly 7 times as many death row inmates will die while incarcerated on death row as will actually have their death sentences carried out.  Additionally, nearly 6 times as many death row inmates will have their death sentences reduced as a result of the discovery of mistakes in their cases as will actually be put to death.  Yet, we continue to pay exorbitant amounts of money to maintain a death penalty option.

What This Proposition Proposes To Do

Proposition 34 is sponsored and supported by a number of individuals who, in the past, were ardent supporters of the death penalty.  Proposition 34 essentially concludes that all of the costs (societal and monetary) associated with the death penalty outweigh any possible benefits it may yield.  The proposition repeals the death penalty as the maximum punishment for persons found guilty of murder and replaces it with life imprisonment without the possibility of parole.  The change applies retroactively to persons already sentenced to death and also requires that persons found guilty of murder work while in prison, with their wages to be applied to any victim restitution fines or orders against them. Additionally, the proposition creates a $100 million fund (appropriated over 4 years) to be distributed to law enforcement agencies to help solve more homicide and rape cases.

The conclusion of the Legislative Analyst and Director of Finance of the fiscal impact on state and local government is that passage of proposition 34 is expected to yield a  net savings to the state and counties that will amount to the high tens of millions of dollars annually on a statewide basis. This is a “net benefit” meaning it takes into consideration the one-time state costs totaling $100 million over four years (from 2012-13 through 2015-16 to provide funding to local law enforcement agencies) and the continued costs of housing inmates for life in prison.  (See analysis here)

Overall we think Proposition 34 is a refreshingly well-reasoned proposition.  Our only possible criticism is that we are not crazy about the $100 million appropriation of funds for law enforcement – not because we don’t think there is a need for such resources (California murders currently go unsolved about 46% of the time and rapes about 56% of the time –  [includes downloadable data from California Attorney General’s statistics found here]), but because we think the allocation is ill-timed and does not consider other fiscal priorities in the state.  Still, because even with this expenditure the proposal offers massive financial savings at the state and local level the financial analysis seems easy:  Save about $130 million a year in perpetuity and spend about $25 million on better crime fighting.  Add to that the fact that it resolves the various issues we identified below (and many that we ignored), mandates that prisoners work to pay their victims for the remainder of their (miserable) lives, and it seems like a positive move for the State.

Opposition Analysis:  If You Can’t Fix it, Scrap It vs. Mend it, Don’t End It 

Death penalty proponents (those opposing this proposition) do not challenge the extreme costs, bureaucracy or the problems known to exist within the system.  Rather, they argue that rather than scrapping the penalty, the problem should be addressed by substantially limiting appellate rights with the expectation that costs will be reduced in this manner because execution will be speedier.  Their argument includes two inter-related questions: (1) Is this (dramatic reduction of appellate review) a realistic, achievable solution to the problems; (2) Is such a solution in the best interests of the law-abiding society of this state.  To address these issues we analyze four well-document problems with the existing system ( (1) Death-Qualifying Juries; (2) Systemic Racism; (3) The Risk of Putting The Innocent to Death; and  (4) Deterrence) and how reduced access to appellate review would affect these problems.

Houston:  We Have A Problem

To start, we note that smart minds have been trying to address known deficiencies in the death penalty system for over 35 years with very little success.  In 2004 the State Senate enacted legislation that assembled the  California Commission on the Fair Administration of Justice (hereafter the “Commission”), an official commission comprised of judges, police chiefs, district attorneys, the attorney general,  and professionals appointed to investigate the death penalty, including claims of systemic problems.   In 2008 the Commission published the results of its extensive study.  As part of the report, then California Supreme Court Chief Justice Ronald George described the current death penalty system as “dysfunctional.”  The Commission’s detailed investigation led to a similar conclusion.  The Commission noted exceptionally high error rates in death cases, including successful claims of “ineffective assistance of counsel,”– 70% in 54 Federal Habeas Corpus cases decided by Courts.  The commission was not reviewing the possibility of eliminating the death penalty, only reforming it.  Nevertheless, the Commission’s report quotes the California Supreme Court’s Chief Justice as follows: “if nothing is done, the backlogs in post-conviction proceedings will continue to grow ‘until the system falls of its own weight.’”  In short, the Commission found that the current safeguards were insufficient, that the process was severely flawed and that extensive reforms were needed.  The Commission noted that according to its calculations the current death penalty system costs about $137 million annually and that the implementation of the various changes that the Commission recommended would raise that cost to approximately $237 million annually.  (Id.).  Extrapolating from those numbers, if the reforms were implemented, it would increase the costs of execution from $300 million to approximately $519 million per execution.  In other words, the most definitive study on the issue concludes that substantially more needs to be spent on our current system.  So, from our perspective, proponents of keeping the death penalty system and “simply” reducing costs start off needing to overcome these findings and then find ways to cut even more spending (presumably without endangering innocent lives).  We have found no reasonable explanation of how this colossal task could be accomplished.

Setting aside that proponents offer no rebuttal to the criticism that more not less should be spent on our existing system, below is our analysis of four known problems and how they would be affected by the opponents’ arguments to “mend it” (by reducing appellate review) rather than “end it” (by passing this proposition):

1)   The “Death Qualified” Conundrum:  Courts considering a death penalty have long found it necessary to ensure that their juries are “death qualified.”  This term of art generally means that any juror seated in a trial that considers murder with “special circumstances” (meaning death could potentially be imposed) must be capable of imposing a penalty of death.  Seems sensible right?  Of course, it also means that any person who is not capable of imposing such a penalty (normally for moral reasons) is automatically excluded from all death penalty cases.  See the problem yet?  By systematically excluding a large section of the population death penalty cases are necessarily decided by a jury pool that is not representative of the public – a constitutional “no-no” in criminal cases.

Nor is this issue purely theoretical.  Studies dating back to the 1980s have shown that “death qualifying” juries means that juries convicting murderers of the crime (the “guilt phase” of trial) and subsequently finding those criminals should be put to death (the penalty phase of trial) are less likely to have persons of Africa American heritage (because as a generalization between 25% -49% of African Americans oppose the death penalty compared to 15%-24% of whites), less likely to have minorities generally, less likely to have Catholics (many of whom are morally opposed to the death penalty), and are generally more “conviction prone” (since they tend to view police and authority in general with less skepticism).  (See here  for an overview of various studies including a comprehensive study by the National Science Foundation and here  for a 2005 study into death qualified juries and other “fairness” concerns in death penalty jury selection).

The problem, of course, and the reason courts have tolerated this injustice is that the converse (letting those opposed to the death penalty) remain on juries makes no sense.  It effectively overrides the death penalty statute as to that trial – another legal “no-no”  (juries don’t have the power to ignore the law).  In short, while legal scholars are aware of the problem, there does not appear to be a “good” solution.

How serious is the problem?  United States Supreme Court Justice John Paul Stevens was one of the justices who, in 1976 ruled that the death penalty was (again) constitutional and could be re-implemented.  In 2008, the same Justice Stevens penned a concurrence in Baze v. Reese in which he excoriated the death penalty procedures and plainly explained:

“[T]he process of obtaining a ‘death qualified jury’ is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.”

In short, in order to have a death penalty one needs to have a system that chooses jurors who agree with the penalty of death.  But making that selection necessarily skews the system towards conviction, and ultimately death.  That “skew” means errors are more likely to occur (as evidenced by the numbers discussed above).  Reducing the appeals processes makes it even more likely that such errors will not be remedied prior to execution of a potentially faulty death sentence.

2)   The Race Problem:  Courts and commentators have long been troubled by the specter of race entering into the decision making process of life versus death.  Of course, like any racism, in today’s climate it is difficult to gauge racism to a level of scientific certainty.  Moreover, the number of “death” cases in the U.S. is small in relation to the overall crime statistic.  So, there is necessarily a “sampling” problem.  Still it is difficult to argue with some of the statistics that are available.  A 2005 Santa Clara Law Review study found that while 75% of murder victims are not Caucasian (i.e. some type of minority), well over 50% of death penalty cases involve white victims.  The same trend has been noted elsewhere.  In the Supreme Court case of McClesky v. Klemp, the court noted that fewer than 40% of Georgia homicide cases involve white victims.  Yet, inexplicably, in 87% of the cases in which a death sentence was imposed the victim is white.  In other words, white-victim cases are roughly 1100% more likely to result in a death sentence than black-victim cases.  In reviewing extensive statistical information relating to race and the death penalty the Court in McClesky did not conclude that there was no systemic racism, to the contrary, the court held that systemic racism (i.e based on statistics) was simply not a basis for relief from a penalty of death – a death-row inmate must show direct racism in his or her specific instance.  (Id).  One recent study examined the large body of empirical studies addressing race and the death penalty and reached the following conclusion:  “in 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both.”  (Id.).

Exactly how pervasive is racial disparity in death cases?  It’s hard to say with a level of certainty. However, that such disparity exists is hard to ignore.  In the 1994 Supreme Court decision of Calins v. Collins, U.S. Supreme Court justice Harry Blackmun succinctly observed:

“Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.”

As with most systemic racism, as difficult as it is to agree on the parameters of the precise problem, it is even more difficult to craft a solution.  Reducing the number of appeals and the ability to exhaust both state and federal appellate systems would only further reduce the likelihood that any racism existing in a particular case could be found and remedied before the affected inmate were executed.

3)   It’s Better To Have 100 Guilty Men Go Free Than To Have One Innocent Man Imprisoned – aka: With All The Safeguards, Could We Still Get It Wrong?  The short answer is “Yes.”  By way of example, Louisiana Death Row inmate Damon A Thibododeaux was just exonerated on September 28, 2012 after spending 15 years on death row.  Thibodeaux had confessed to the crime, but 15 years later, DNA evidence unequivocally cleared him and the prosecutor agreed that the wrong man had been facing a death sentence for over a decade.  The non-profit “Innocence Project” has successfully cleared 17 death row prisoners of the crimes for which they were sentenced to death. Overall, reports suggest at least 113 death-bound inmates had been found innocent as of 2004.  At least five California death row inmates have been convicted but then subsequently cleared of the murders for which they were previously sentenced to die.

Perhaps the most disturbing story in California’s history is that of death row inmate Thomas Thomson who was executed by California authorities in 1998.  To this day there is serious doubt as to whether Thomson committed the crime and prosecutors concede they presented two conflicting versions of the supposed crime in two separate trials. (Read more at SFGate).  The Ninth Circuit U.S Court of Appeals (the federal appellate panel that can review state death cases after the State appeals have been exhausted) found Thomson’s case so riddled with errors that it overturned Thomson’s sentence.  However, in a 5-4 decision, the U.S. Supreme Court then overturned the Ninth Circuit’s decision finding that it had rendered its decision after the expiration of a procedural deadline.  (Id.).  Thompson died by lethal injection in July 1998.  We can think of no better example of the potential pitfalls of imposing procedural limitations on appellate review.

The problem that the penal system has with such “getting it wrong” in death cases should be obvious.  Prisoners are tried and punished in the name of “The People of the State of California.”  So, if Thompson was innocent, or if any of the other death row exonerees had not been exonerated prior to their scheduled execution, the “state” and its people (that would be us voters) would be guilty of taking a life without justification in a deliberate and premeditated fashion – if that sounds familiar it should.  It’s the same First Degree Murder standard applied to all death row inmates (though happily “special circumstances” would likely not be satisfied).  This is why those involved in the justice system generally feel that a death system must be completely fool-proof:  Something that is proving exceedingly difficult, if not impossible.  Reducing the amount of appellate review of each death case will only compound that problem.

4)   The Deterrence Argument – Does Killing People Actually Deter Killing People?: The 2008 Commission report concluded that it is not at all clear that the extremely high costs of having a “death penalty” result in any deterrent effect among criminals.

“Whether the death penalty has a deterrent effect is a hotly contested issue. Compare Dr. Paul Rubin, Testimony Before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Committee on the Judiciary, U.S. Senate, Feb. 1, 2006, with Donohue & Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005), and see Shepard, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. Legal Studies 283 (2004). (See the Commission report at fn. 8]).

A review of raw data shows a more troubling trend.  In every case, states that do not have the death penalty have lower murder rates than states that have a death penalty.  Of course, correlation does not necessarily mean causation but it certainly does give one pause.  Indeed, a recent New York University and Virginia Tech  study examining 50 years of data from Trinidad and Tobago (which was convenient because that country has a history of both the existence and the absence of the death penalty)  the sociology professors concluded that there exists  “no association between the administration of the death penalty and subsequent murder rates.”

Other studies point to an even more disturbing observation termed “the brutalization effect,” which suggests that the death penalty may actually increase the murder rates – which would certainly be one explanation for the higher rates of murder in death penalty states.

“Studies of capital punishment have consistently shown that homicide actually increases in the time period surrounding an execution. Social scientists refer to this as the “brutalization effect.” Execution stimulates homicides in three ways: (1) executions desensitize the public to the immorality of killing, increasing the probability that some people will be motivated to kill; (2) the state legitimizes the notion that vengeance for past misdeeds is acceptable; and (3) executions also have an imitation effect, where people actually follow the example set by the state, after all, people feel if the government can kill its enemies, so can they (Bowers and Pierce, 1980; King, 1978, Forst. 1983).”

(See a study by Gary Potter, Phd of the Department of Justice and Police Studies collecting and analyzing numerous authorities).

Reducing the quality or quantity of appeals available to death sentenced offenders is, admittedly unlikely to affect the issue of whether death provides any deterrence, much less whether death may actually lead to increase murder rates.  Still, while this element must be considered a “wash” in our analysis, those of us who have seen the death penalty legal process up close and are perhaps torn by the potential pros and cons of the system, are most troubled by this last observation:  If we are not absolutely positive that the death penalty deters murder, and if we have even an inkling that it might exacerbate the problem, how can we realistically consider working to increase death sentences?

Conclusion

In short, the opposition’s main argument — that the state should reduce expenses by limiting review of death cases — is the exact opposite action of the recommendations of the only professional Commission to have actually analyzed the current system.  Moreover, an analysis of four known “problem areas” within the system shows that such a reduction would only exacerbate what are already identified “problem areas” within this system.  That doesn’t strike us as good policy.  Add to that the fact that supporting proposition 34 addresses all of these problems (at least as to these cases), while offering cost saving “in the high tens of millions” per year for already strained state and local budgets, and supporting Proposition 34 becomes the obvious choice.

Who else Supports and Opposes Prop 34? 

We are not the only ones who have concluded Proposition 34 is a good policy change for the state. Historically death penalty debates have devolved into the polarization of two camps: The left-leaning touchy-feely types who opposed death vs. The right-wing law and order types. While numerous law enforcement lobbies and groups still oppose this Proposition, the list of proponents includes countless characters normally found on the opposite side of the crime and punishment debate.

Donald Heller (former New York and California prosecutor who worked to convict such notorious murderers as Lynette “Squeaky” Fromme) authored the 1978 measure re-enacting the death penalty in California.  Yet, Heller is now one of the co-authors of Proposition 34.  The same is true for Ronald Briggs (a conservative Republican county supervisor and son of Senator John Briggs) for whom the original death penalty initiative was named and who worked tirelessly on the ’78 campaign to bring back the death penalty.  Another co-author of this proposition, Jeanne Woodford, is a retired San Quentin State Correctional warden who personally presided over four executions.  (For an explanation of Heller’s change in position on the death penalty see this Los Angeles Times Article).

Of course, you also have the death penalty opponents’ usual suspects Jackson Browne and Ed Asner (sidebar here – are we the only ones totally surprised Ed Asner is still alive?)  but more pragmatic business supporters like Yahoo CEO Marissa Mayer and Netflix CEO Reed Hastings, have signed on stating:  “In California, we will save tens of millions of dollars every year if we change from the death penalty to life in prison without chance of parole. That money would be better spent on educating kids instead.” (See San Gabriel Valley Tribune).  Here are a few other notable supporters:

Official Supporters

  • Gil Garcetti, District Attorney, Los Angeles County, 1992-2000
  • Jeanne Woodford, Warden, California Death Row Prison, 1998-2004
  • League of Women Voters of California (OK, this one isn’t that surprising)
  • John Van de Kamp, Attorney General of State of California, 1983-1991
  • Mayor Antonio Villaraigosa, City of Los Angeles
  • Judge LaDoris Cordell (retired), Santa Clara County Superior Court

Unofficial Supporters

  • Hon.  H. Lee Sarokin, (Ret.)  federal judge.   “I’ve always said that I cannot envision that somebody contemplating murder sits at the kitchen table and says ‘I’m not going to commit a murder because I could face the death penalty, but I will if I only face life imprisonment without parole’.”
  • Gerald Barnes, Bishop of the Diocese of San Bernardino.
  • The California Catholic Conference of Bishops supports Proposition 34.

You can now add Politomuse to the list.  We think this proposition is smart policy.

VOTE:  YES

  1. #1 by Jaime on October 15, 2012 - 10:31 am

    I was just about to hit send on a snarky comment about the catholic bishops but I will rise above. And take deep breaths. And be bummed that I’m an informed voter and not a sheeple…baaaah.

  1. PolitoMuse urges a “Yes” vote on Proposition 34 « PolitoMuse
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