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April 17, 2010

The significant (and valuable) role of California's death penalty in the Chelsea King case

As regular readers may know, I consider the death penalty's role as a catalyst for resoving difficult murder cases via pleas to lesser sentences to be one of the least appreciated and most important justifications for preserving this ultimate punishment.  For this reason (and others), I found especially significant and interesting the role that the California death penalty appeared to play in yesterday's plea deal resolution of the high-profile Chelsea King murder. 

First, here are the basics from this press report, which is headlined "Sex offender pleads guilty to killing two teen girls: In a deal to avoid the death penalty, John Albert Gardner III admits to the murders of Chelsea King, 17, and Amber Dubois, 14."

A 31-year-old registered sex offender pleaded guilty Friday to murdering two teenage girls in northern San Diego County in a deal that spares him from the death penalty. John Albert Gardner III, who previously served five years in prison for beating and molesting a 13-year-old girl, pleaded guilty to the murders of Chelsea King, 17, and Amber Dubois, 14, both during rape attempts. In exchange for his plea at the hastily arranged hearing, Gardner will be returned to prison for life, without the possibility of parole....

Deputy Dist. Atty. Kristen Spieler told Danielsen that Dist. Atty. Bonnie Dumanis agreed to the plea bargain after "careful consideration of the feelings and opinions" of the victims' families.

In a news conference after the plea, Maurice Dubois, Amber's father, said the agreement allowed "justice and closure" for his daughter. Brent King, Chelsea's father, said lengthy court proceedings would have had a "destructive effect" on their 13-year-old son, Tyler, and the community and distracted from the family's campaign for tougher laws for sex offenders.

Dumanis said that without Gardner's guilty plea, her office would not have had enough evidence to take him to trial for Amber's murder.

Second, consider this effective press analysis, which is headlined "Scholars: Plea deal can work for both sides: Families avoid trail, killer avoids death penalty":

Shaun Martin, a University of San Diego law professor who has been following the case, ... Martin noted that taking the death penalty off the table not only spares prosecutors and family members a trial and the possibility of an acquittal, it also saves the state millions of dollars in legal expenses.

Because death sentences come with an automatic and lengthy appeals process, the state typically spends years on appeals and spends $2 million or more to impose the penalty, he said.

“Look at David Westerfield: He’s still around,” said Martin, referring to the Sabre Springs man convicted of killing Danielle van Dam in 2002. “When you can avoid a trial and have someone put in prison for the rest of their life, that’s not all that different than someone sentenced to death — at least for the next 15 years.”

Finally, let's all reflect on how not only the availability, but also the rareness, of executions in California seems to have been essential to greasing the wheels of justice in this case.  Without the prospect of a death sentence John Albert Gardner seem very unlikely to plead guilty (especially in the Amber Dubois case).  But without the prospect of 20+ years of capital litigation over a death sentence before an execution, the prosecutors and the family of the victims likely would not have been willing or eager to let Gardner cut this deal.

April 17, 2010 at 12:05 PM | Permalink

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Comments

There are many things to be said about this case. For now I will limit myself to one observation: Unless there are enough executions to make the killer/defendant understand that it's a realistic possibility for him, the virtues that Doug sees in this disposition won't work.

Posted by: Bill Otis | Apr 17, 2010 12:45:58 PM

But it did work, Mr. Bill, so how can you say it won't? What is most fascinating is the unwritten part of the bargain, and that is the win for CCPOA (the prison guard union, which includes parole officers).

CCPOA's Crime Victims United recruited the Kings right off and the Kings evidently knew of the plea bargain all along as they marched on Sacramento and spread sunflowers to the legislature.

In a news conference after the plea, Maurice Dubois, Amber's father, said the agreement allowed "justice and closure" for his daughter. Brent King, Chelsea's father, said lengthy court proceedings would have had a "destructive effect" on their 13-year-old son, Tyler, and the community and distracted from the family's campaign for tougher laws for sex offenders.

Can someone explain how giving a serial killer a break and instead punishing those who didn't and wouldn't kill makes sense? They agree to giving a serial killer life and want a mandatory life sentence for those who didn't kill. How does this make sense other than full prisons and job security for the prison guards?

I'm reminded of the Killing and culpability: A reader participation exercise.

Something is bent.

Posted by: George | Apr 17, 2010 1:59:39 PM

How utilitarian, Professor.

You are consistently uplifting in your attitudes about the significance of state killing - and how it can be used.

Posted by: anon | Apr 17, 2010 2:31:20 PM

You are right, anon, that my points are quite utilitarian (as is, I suspect, your decision to use the label "anon").

I have never fully understood retributivist claims in any contestable setting, and I particularly find difficult to sort out which forms of "state killing" --- just wars, executions, deliberate indifference to inadequate health care, allowing abortions --- are sorted out as good and/or bad to retributivists who consider killing to be a unique wrong. Indeed, I have never heard a truly satisfying account of how we can get very far beyond essential claims of belief, faith and emotion when debating these issues from a retributivist perspective.

In contrast, utilitarianism allows (and really requires) an engaged dialogue that turns on observations, facts and real-world developments. That reality may not be sufficient reason for you to be a fan of utilitarianism, but it is a reason for me to note the utilitarian values that were well-served in this high-profile case by California's (formal but not very functional) version of the death penalty.

Posted by: Doug B. | Apr 17, 2010 2:50:35 PM

this just made me sad!

"Deputy Dist. Atty. Kristen Spieler told Danielsen that Dist. Atty. Bonnie Dumanis agreed to the plea bargain after "careful consideration of the feelings and opinions" of the victims' families."

I would have much better it has said

"after careful consideration of the EVIDENCE against him" decided to take a plea.

for all we know what we have here is another SUCKER railroaded under the govt's program to cram as many people into prisons as they can.

Posted by: rodsmith | Apr 17, 2010 2:56:22 PM

"[DA] Dumanis said that without Gardner's guilty plea, her office would not have had enough evidence to take him to trial for Amber's murder."

uhhh ...

Posted by: . | Apr 17, 2010 3:27:23 PM

Let's not confuse the use of a plea bargain to save the time and money and risk of a trial and to sparse victims families with the admission that the DA didn't have a weak case, but no case.

Posted by: . | Apr 17, 2010 3:28:36 PM

rodsmith, what the police did right got lost in the outrage. Within a few days they had a DNA match with Gardner. Lost in the emotion is the powerful deterrence effect that must have have (and many cold case suspects must be sweating too).

Gardner was not railroaded and anyone whose seen "The First 48" knows the confession was probably elicited by also appealing to Gardner's sense of decency rather than by only instilling fear of the death penalty. It was likely a combination of both that got the cooperation.

Either way, there is no defending Gardner as someone railroaded. He pleaded guilty because he is.

Posted by: George | Apr 17, 2010 3:43:50 PM

George --

Is that really you? Knock me over with a feather!

Posted by: Bill Otis | Apr 17, 2010 5:34:22 PM

Prof. Berman: The death penalty has resulted in offers from the defendant as well. "I will give you the location of the body of the 7 year old girl, in return for removing the death penalty." Prosecutor declined the offer. The execrable defense lawyers continued to mount an all out defense, blaming the parents for the murder of the little girl. The Disciplinary Counsel did nothing. That was zealous representation.

An extreme utilitarian here, about 10 times more than you are.

This use of the death penalty is not really utilitarian. It is legal hoaxing. The death penalty is not ongoing in California. To threaten it is legal hoaxing. Legal hoaxing, from an utilitarian viewpoint, should be prohibited, because it damages the credibility of the law. It gives false notice, and likely violates procedural due process as much as failure to give notice.

I suggest an alternative. Upon conviction, waterboarding, a harmless but effective enhancement of interrogation. Do it for months until investigators of other cases have exhausted the information the convict has.

Posted by: Supremacy Claus | Apr 17, 2010 5:58:09 PM

Why the shock, Mr. Bill? The two posts are consistent with evidence-based solutions.

I'm shocked you didn't argue Gardner is incapable of any decency or remorse and so only fear of the death penalty was effective. "The First 48" debunks that notion. Rarely is the suspect psychopathic enough to evoke his constitutional rights, lol.

Posted by: George | Apr 17, 2010 6:20:08 PM

George --

"Why the shock, Mr. Bill?"

Because for a defense-oriented person to say sua sponte, "He pleaded guilty because he is," while not totally unheard of, is really, really rare. All I hear on this site is that they plead guilty because the prosecutor threatened them with 5000 years for public urination.

"I'm shocked you didn't argue Gardner is incapable of any decency or remorse and so only fear of the death penalty was effective."

Looks like two of us will be shocked today, then. On the remorse front, I agree with your observation that "the confession was probably elicited by also appealing to Gardner's sense of decency rather than by only instilling fear of the death penalty. It was likely a combination of both that got the cooperation."

Now I don't KNOW that to be true, but it is not unknown for a killer to have remorse later on.

When a killer does feel remorse, that is a factor fairly considered in sentencing. When the crime is horrible enough, though -- and this one (or these two) were -- remorse may be insufficient to take the DP off the table. And of course there are numerous murders, McVeigh's most prominent among them, in which the killer is not only unremorseful but proud of himself (as McVeigh explained on another CBS show, Sixty Minutes).

As to your earlier disagreement with my statement that the DP will have to be carried out often enough to make it a realistic incentive in a case like this, I have a hard time seeing where you're coming from. California has executed 13 people since the Gregg re-instatement, and the last two, Clarence Ray Allen and Tookie Williams, got a great deal of publicity. So while in this case the defendant would have to think his chances of beating the death chamber were quite good, he also had to think that he COULD, indeed and in fact, wind up there.

Posted by: Bill Otis | Apr 17, 2010 6:46:11 PM

Although there was a difference in scale, this is similar to the plea bargain made in Washington with the Green River serial murderer.

Posted by: ward | Apr 18, 2010 2:28:07 AM

ahh didn't realize that george. yep that would certainly be a real hard thing to get around with the DP hanging over your head. just these days when 90-95% of all criminal trial never see a jury it's getting awful hard to hold them up as legal. Since they were supposed to be a LIMITED excption to that Constitutional RIGHT to a JURY TRIAL.

Posted by: rodsmith | Apr 18, 2010 2:54:07 AM


Doug --

"You are right, anon, that my points are quite utilitarian (as is, I suspect, your decision to use the label "anon")."

Nailed it.

There is an unfortunate tendency on this site for commenters to make rude and dismissive remarks without even attempting an analytic or fair-minded answer. That's what "anon" was doing, and you were right to call him on it.

This blog is a big step forward in the free exchange of ideas about important issues. But by the nature of a blog, it has four drawbacks that some commenters exploit to create a cover for bad behavior.

First, people can be anonymous (like, appropriately enough, "anon") and use their anonymity to make rude, insulting and personal remarks without consequence. That is low class and cowardly. It would happen far less frequently in face-to-face debate. But it happens again and again here.

Second, they hide behind anonymity to more easily get away with mischaracterizing or simply making up what an opponent has said.

Third, an internet forum allows people to dodge questions. Questions are a useful means to explore the high and low points of an opponent's argument. What happens here is that, when Commenter X is cornered at the end of the chase, he just stops. Again, stonewalling questions in that way is much harder to pull off in a live debate; if your opponent asks you a tough question and you won't answer, you just lost.

Finally and relatedly, when Commenter X here gets in a tight spot, he (or she) can just disappear. That again is a hard trick to pull in a classroom or onstage debate.

Anonymity is a catalyst in some if not all these problems. I have noticed that the most analyitc and civil posters here use their real names: You do, as do I, Kent, John Neff and Marc Shepherd. There are a few others as well. On the other hand, the group least given to analysis also very roughly corresponds to the group most likely to be rude and insulting (e.g., Mark # 1).

For these reasons, I just recently invited a particularly snippy and high-handed anonymous commenter, "AFPD" to participate with me in a live debate at the law school of her choice. Although there is an outstanding offer to pay her expenses, thus making it a freebie for her, she remains silent. Since she has announced her vast intellectual superiority, this is most odd.

This is something I will be doing more and more. A person who uses his real name here and answers questions takes responsibility for what he says, as any adult should. In the future, I will be expecting my opponents to do so. Anything they say on this forum, they should be willing to say under their true name and in a setting where they can be seen and questioned face-to-face about their positions. That is how snippiness gets turned into an actual exchange of ideas.


Posted by: Bill Otis | Apr 18, 2010 9:05:09 AM

But Bill, tossing rhetorical bombs is half the fun . . . . and a little ad hominem always spices up the debate.

Posted by: federalist | Apr 18, 2010 10:10:34 AM

Bill: Prof. B knows who the author of the Supremacy character is, as do others here. I am sure it means nothing to him. A stranger's name, address, occupation. You are a responsible person. If it will ease your pain about anonymity, I will gladly pop a resume over. It will contain the meaningless information of a stranger. It will change nothing about the validity of the comments. If a lawyer makes a personal attack, it shows frustration in the traverse. That is a marker of surrender on substance. It is a trial advocacy tactic to induce such remarks, have the judge rejoinder it, and send a signal to the perplexed, annoyed jury as to which side merits their vote.

Posted by: Supremacy Claus | Apr 18, 2010 9:15:05 PM

SC --

Most people here are do not use their real names, and I have no problem with it. It is those who do this ad hominem stuff from behind the curtain, adding little or no analysis, that are a problem. Heated argument is not a problem. Spitting from behind the tree is.

Since I was a public official for years, it comes as second nature to me to sign what I write with my own name; when I first discovered the world of blogs, it came as a shock to me that people did anything else.

Although quite often I don't get what you're saying, you are no cheap shot artist and you abjure personal attacks. So I've never had a problem with you. And again, I appreciate your offer to pay the expenses for this debate, if AFPD will agree to it (or is ever heard from again).

Posted by: Bill Otis | Apr 18, 2010 10:10:05 PM

Welll since you're offering to pay, can I come too? We won't have much to debate (we work on the same sides of the criminal law), but it would be very educational.

I guess this must be a generational difference. Having grown up with the Internet, anonymity online is standard operating procedure, from the old days of discussions on Usenet, to blogosphere commentary today. It's quite unusual to see someone actually use their real name. There are upsides and downsides. The upside is that it enables more participation and encourages freer discussion - there are perfectly rational reasons why you would not use your real name online. The downside is that it can enable some users to be more coarse, and they will not acknowledge when they're wrong.

Bill, I wouldn't take it seriously. The lack of a response, plus rudeness, just reflects on the person making the statement. You don't have to prove in a live debate whether or not you were right or wrong the first time against an anonymous person.

Posted by: Buffalo Bill | Apr 19, 2010 12:42:30 PM

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