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March 1, 2009

Two terrific accounts of prosecutorial discretion in California capital cases

The week in my sentencing class I was stressing that the profound impact and import of prosecutorial discretion in capital cases is rarely discussed and even more rarely criticized.  Then, as if on cue, I find in this weekend's papers these two terrific accounts of prosecutorial discretion in capital cases in California.

First, consider from the (Eureka) Times-Standard here comes "Death penalty: a DA's decision." Here are a few excerpts from a fascinating article:

When it comes to the death penalty in the state of California, there just isn't much consistency. ”It's like a patchwork quilt,” said Elisabeth Semel, a clinical professor of law at U.C. Berkeley who directs the school's death penalty clinic. “Someone once said, 'California has 58 counties and 58 death penalties,' and that's a very apt statement.”

Humboldt County District Attorney Paul Gallegos continues to consider whether to pursue capital punishment in the case of the Feb. 6 stabbing death of Andrew Pease, highlighting the discretion prosecutors are entrusted with in these cases. Some say that discretion leads to an unequal application of the law, but others counter it allows local officials to apply the law in a way that is in tune with the local community....

Gallegos said his office has no written policy as to when to pursue the death penalty, but that he has a procedure in place for making the decision.... ”Everyone will individually reach their own opinion,” Gallegos said, “then we will get together and discuss it.” Gallegos said his senior attorneys will then take a vote. If there's not a unanimous decision among his attorneys to pursue capital punishment, Gallegos said it's unlikely he would opt to pursue it.

Second, consider from the San Francisco Chronicle herecomes "S.F. grapples with 1st death trials in years."  Here are a few excerpts from the start of this fascinating article:

For the first time since 1948, lives are at stake in a San Francisco federal courtroom.  Two alleged gang members went on trial before separate juries last week, each accused of three murders as part of a racketeering enterprise to control local drug trafficking. The Justice Department is seeking the death penalty for both defendants, in one case over the objections of the U.S. attorney's office, which had agreed on a 40-year prison sentence.

They are the first two federal death penalty trials in California's Northern District, based in San Francisco, since two Alcatraz inmates were convicted, sentenced to death and executed in the San Quentin gas chamber in 1948 for an escape attempt two years earlier in which two guards and three prisoners were killed.

They're also the first life-or-death trials of any kind in San Francisco since 1991, when a convicted murderer was sentenced to death in Superior Court. That man, Clifford Bolden, is the only San Franciscan among 680 condemned prisoners in California.  District Attorney Kamala Harris and her predecessor, Terence Hallinan, have refused to seek the death penalty.

The Bush administration, on the other hand, believed the federal death penalty law should be enforced uniformly nationwide, regardless of local policies.  President George W. Bush's attorneys general often sought death sentences in states without their own capital punishment laws.

Though many have been critical of the tendency of Bush Administration AG's to over-rule local federal prosecutorial judgments about whether to pursue capital charges, I am inclined to be more critical of state DA's who categorically refuse to enforce an aspect of state law.  But I sense I am a rare commentor who is just as concerned about (lawless?) discretionary decisions by prosecutors not to seek death sentences as about their (lawless?) discretionary decisions to seek death sentences.

March 1, 2009 at 02:28 PM | Permalink


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I think money is the driving force of discrepancy in Nevada. Small, rural counties cannot afford the huge expenses of a death penalty case. Even Washoe County, which includes Reno, has cut back drastically on the death penalty because of the costs. In each of those counties the District Attorney faces direct accountability to the relatively small number of voters, who are well aware of their county's limited budget.

In Clark County, which includes Las Vegas, the District Attorney seeks the death penalty in an amazing number of cases. The voters here have no idea of the cost as it get buried in the large county budget and is not itemized out for review. At a time when we are cutting essential services based upon financial concerns, I think the charging practices should be reviewed seriously.

My proposal: Let the elected DA have 5 free Notices of Intent to Seek the Death Penalty per year and then take $50,000 from his budget for each additional Notice and give that money to the Public Defender's Office or appointed counsel assigned to the case. The DA would retain discretion to seek death, but would also have to consider the fiscal impact.

Bottom line -- we'll continue to see discrepancy in the death penalty, county by county, unless and until there's state funding for capital cases.

Posted by: JoNell | Mar 1, 2009 4:41:09 PM

While we might (or might not) be concerned about variations in punishment from one locality to another, the death penalty is an optional punishment in all circumstances. As such, a prosecutor's failure to seek it is not lawless any more than a jury's failure to invoke it is lawless. The failure to choose to do something optional is not a failure to "enforce an aspect of state law."

Posted by: dm | Mar 1, 2009 6:09:25 PM

tomorrow I am arguing in a capital case that the prosecutor has no authority to seek the death penalty in a case unless the grand jury has found probable cause that one or more "aggravating circumstances" exists which constitutes an essential element of capital murder. In other words, in NC the grand jury indicts someone for what Scalia in Sattazahn calls "murder simpliciter." Then, it is totally within the discretion of the DA whether an aggravator exists which can be used to convict someone of a greater offense which exposes the def to death.

Before Ring, death was a greater sentence for first degree murder. Now death is one of two possible punishments for the greater crime of aggravated first degree murder.

I am curious , if anyone can tell me, how many other states do not require the grand jury to find probable cause that an aggravator, which can be used to expose the def to death, exists?

bruce cunningham

Posted by: bruce cunningham | Mar 1, 2009 7:31:19 PM

Dm. I agree with you. I am not sure what part of the word discretion Doug doesn't understand. Freedom to chose means freedom to chose categorically. If people don't like that freedom, they have multiple ways to curtail it.

Posted by: Daniel | Mar 1, 2009 9:24:28 PM

Please explain, Daniel, how "people have multiple ways to curtail" the view that capital charging and bargaining discretion is being abused by prosecutors. When judges exercise discretion, their decisions are made in the open and on the record and are often subject to appellate review. When prosecutors exercise discretion, their decisions are made behind closed doors, with no record and no review. How can we have any confidence that race, gender, class and other factors are not central to the choices being made by prosecutors in this context? And if we do not like how this "freedom" to be biased in the exercise of capital discretion, how can/should we go about trying to curtail it?

Similarly, DM, all of modern constitutional capital jurisprudence has been about the determination by the Supreme Court that jury have to be subject to legal instructions and constraints when making life/death sentencing decisions. In other words, the Supreme Court has spent 30+ years trying to ensure jury decisions in capital cases are not lawless. in contrast, nobody has invested any time or energy even assessing whether prosecutors are acting lawless in this setting.

Posted by: Doug B. | Mar 2, 2009 8:44:42 AM

"rarely criticized"? Surely you can't be serious. "Geographic disparity," of which prosecutorial discretion is a primary component, has been one of the main arguments of the anti side in recent years.

Posted by: Kent Scheidegger | Mar 2, 2009 12:10:08 PM

Doug. What you say is true about prosecutorial discretion, but it's hardly unique to death cases. In fact, I see it as less of a problem in death cases -- they are the most high profile and therefore the most likely to receive at least a modicum of public notice.

The problem as I see it is that that public oversight is largely a one-way ratchet. There is a natural anger that humans have towards those accused of heinous crimes. When prosecutors seek death, that anger is indulged, and there is not likely to be public outcry. When prosecutors decide not to seek death they risk, themselves, becoming the object of that projected anger. In jurisdictions where prosecutors are elected, they risk being voted out of office. All of the pressure is in one direction.

In short, we ought to look carefully at prosecutors' decisions to seek death. When prosecutors show the fortitude not to seek it, we ought be less concerned. Surely there are some exceptions: a prosecutor ought not make the decision to avoid the death penalty on impermissible bases -- race, sex, etc. Although here's the big joke: the Supreme Court has specifically abdicated a serious review of such matters.

I would favor limiting unbridled prosecutorial discretion -- by increasing punishments (and thereby putting defendants in a vulnerable position) we've given prosecutors far too much power. But, generally speaking, the decision to not seek a specific punishment is not a problem. It is not "lawless" -- so long as it is not done on a basis that the Constitution forbids.

Posted by: dm | Mar 2, 2009 1:33:35 PM

Doug's "lawless" description is yet another example of his hyperbole.

Posted by: federalist | Mar 2, 2009 1:41:09 PM

By "lawless" I mean simply not subject to regulation by law. One might say that the limits imposed by the Constitution serve as "law" that regulates prosecutorial discretion, but you rightly note DM that courts typically will not even allow individuals to question prosecutors about how they choose to exercise their discretion.

And, again, I return to the (ugly?) history of Supreme Court regulation of jury discretion in capital cases. The Supreme Court has come to demand and enforce a lot of law --- arguably much too much --- control and guide the exercise of capital discretion by juries. But prosecutors, it seems, get to make up their own charging and bargaining rules in this setting.

As shown by these articles, some DAs in California apparently consult all their officemates while others opt just never to consider death charges. Still others may flip coins or consider the wealth/gender/race of the defendant or pray for guidance from god or consult their horoscope. The main point is not only that we do not know how these decision are made, but also that the "lawlessness" of this part of the process means that it is hard for use to develop a law-based criticism of whatever approach is adopted by a particular DA.

But, then again, we are only talking about life and death decisions, so maybe we need not worry so much about the importance of law in this setting.

Posted by: Doug B. | Mar 2, 2009 3:54:12 PM

Doug, do you always lead with your chin?

First of all, your use of "lawless" is a far cry from what most of us in this audience would think of when we read "lawless". It's a perjorative term, and you know it. Your attempt to salvage the usage is pretty weak.

Second of all, that DAs have discretion in choosing prosecutorial priorities is not "lawless", it's lawful. Your flipping of coin etc. examples are simply a parade of horribles.

Additionally, there's no effective way to make prosecutors who don't want to seek death to seek death. (Of course, thinking about the subject for more than say 10 seconds would show that.) And as for those who do, well, the statute allows it. And, by the way, with respect to race, there are rules about that. The burden is tough, see US v. Bass, but there are rules. And flipping a coin probably doesn't fly given dicta in one of the clemency due process cases.

Your last sentence is comical. No one is arguing that the law is not important in "life and death decisions". So your snide insinuation that you're just acting out of some great concern that I don't share misses the point. My point was a narrow one--"lawless" is hyperbole. People do make arguments that the requirement of sufficient narrowing of the death eligible crimes isn't done enough. They usually don't call the decisions to seek death "lawless".

Posted by: federalist | Mar 2, 2009 4:28:56 PM

someone please ans my question can a passenger be charged with possession of firearm when the driver jumps out and run. i am a law student

Posted by: MALIK | Feb 6, 2010 12:14:48 AM

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