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February 13, 2013

Notable commentary on "Christopher Dorner and the California Death Penalty"

Noted legal commentatory Jeffrey Toobin has this notable new commentary at The New Yorker on a high-profile murder case that seems to have resolved itself in the state with a highly-dysfunctional capital punishment system.  Here are excerpts:

At this moment, it looks like Christopher Dorner, the ex-L.A.P.D. officer who’s been terrorizing Southern California for the past week, died on Tuesday in a confrontation with his pursuers.  A San Bernardino deputy sheriff was also killed; Dorner has already been charged with the murder of another officer, and is alleged to have killed two other people. In a lengthy post on Facebook last week, Dorner said that the motive for his rampage was an unjust dismissal from the L.A.P.D. several years ago.

If Dorner didn’t die (and is later caught), we can be sure that one or more district attorneys will seek to have him executed. And thus the nation would be forced to confront one of the biggest fiascoes in the American legal system — the death penalty in California.

It’s possible for reasonable people to hold differing opinions on the death penalty. (Over the years, I’ve had several different ones myself.) But what’s going on in California represents the worst of all worlds — a massively expensive Potemkin operation in which hundreds of people are sentenced to death and no one is ever executed....

There are several reasons that the system in California has ground to a halt. The 1978 voter initiative that restored the death penalty sent all appeals directly to the California Supreme Court, bypassing the intermediate appeals courts.  This has created a huge backlog at the state’s highest court.  Moreover, challenges to the method of execution have led to a de facto moratorium on executions since 2006.  That impasse continues.

The root of the problem, in California and elsewhere, is that, as the Supreme Court has often said, death is different.  The finality of capital punishment requires special safeguards against errors in the judicial process.  But if a state takes those safeguards seriously, as California does, the process can become never-ending.  Death-row exonerations, through DNA evidence and other means, have provoked even greater scrutiny of the cases of those who remain.  And the state’s oxymoronical quest to kill people in a humane fashion turns out to be difficult indeed.  All of this leads to delay.

And to enormous expense: many studies have shown that the death penalty is far more costly to taxpayers than a maximum sentence of life in prison without the possibility of parole....

If Dorner is dead, few will mourn him.  But anyone who has thought that his murderous spree — or the next spectacular California crime — would lead to a restoration of executions is very much mistaken.  The death penalty is already over in California in fact; it may take a little while longer to be gone in law, too.

I suspect lots of different readers will have lots of different reactions to this commentary (including to some of the more abolitionist-leaning sections I have not reprinted above).   Ever the iconoclast, I will make the point that the Dorner case provides another great example, in my view, of the kind of  "national" mass murder case which could and should be prosecuted (exclusively?) in federal court if he were still alive and responsible officials decided his case should be subject to a capital charge.

Recent and older related posts on use of the federal death penalty:

February 13, 2013 at 05:00 PM | Permalink

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I would be very curious to know what made this exclusively California crime spree a "national" mass murder?

Posted by: C60 | Feb 13, 2013 5:13:56 PM

Well, C60, I believe the FBI got involved, I believe parts of his many crime occurred in a national park, I believe the murderer tried to steal a boat in San Diego to flee to Mexico, I believe he used facebook and other cyber-means to communicate his motives and plans, and so on and so on. In addition, I have seen this report that the feds had on Monday filed a complaint against someone they thought helped Dorner: http://latimesblogs.latimes.com/lanow/2013/02/dorner-manhunt-ex-cop-may-got-help.html

Most critically, I am certain that Dorner's crime garnered a heck of a lot more national attention and concern and resources than 99.999% of the local crimes committed by the roughly 10,000 street-level drug dealers and child porn downloaders who get prosecuted in federal courts each year.

Posted by: Doug B. | Feb 13, 2013 5:27:25 PM

I haven't followed the story closely, but of what you mentioned, I would would agree that if all or part of any crime was committed in a national park, the federal courts would have jurisdiction. The rest of it; not so much.

Posted by: C60 | Feb 13, 2013 5:53:31 PM

What on earth would possess a murderer to flee to Mexico?
Mightn’t it be
1. their bandito culture of glorifying criminals, e.g. Panch Villa? Or is it
2. their (in)justice-by-extortion policemen, e.g. ‘How much is my fine?’ ‘How much you got?'
[see recent Jon Hammar case? Or more to the point
3. their progressive humanity in banning official execution and fighting extradition to primitive, unjust jurisdictions such as the United States?

I’m proud to be an American.
California needs to remember its nationality.

Posted by: Adamakis | Feb 13, 2013 6:41:10 PM

The idea that the California system is not functioning because California is extra-careful as opposed to extra-incompetent seems . . . counterintuitive. I do agree that having a massive inventory of death sentences with virtually none being carried out is one of the worst possible alternatives. Federal prosecution, however, seems like a dreadful dreadful dreadful idea. As I said about another state in an earlier thread, saving California from its own political/judicial dysfunctionality is not a legitimate use of my federal tax dollars. If a state can't even competently prosecute murderers of its own law enforcement personnel . . . . OTOH, it would be pretty cool (again, in the hypothetical alternative world where the defendant was alive to be put on trial) if the San Bernadino Co. DA or whoever held a press conference saying "Despite the extreme facts of this case, I'm not even going to bother to ask for death because, frankly, the whole thing is a farce and would just embroil my office in decades of expensive collateral litigation w/o any reasonable prospect of an execution ever actually happening. If you don't like that, send people to Sacramento who will fix the system."

Posted by: JWB | Feb 13, 2013 7:01:46 PM

Toobin makes an ass of himself yet again:

"The 1978 voter initiative that restored the death penalty sent all appeals directly to the California Supreme Court, bypassing the intermediate appeals courts."

It is Article VI § 11 of the California Constitution that sends the capital appeals straight to the Supreme Court. That section was enacted in the 1966 revision of Article VI, and similar provisions had been in effect before that. (The section has been amended more recently, but not on this point.)

The 1978 initiative did not restore capital punishment. It had been restored by a legislative statute the year before.

The rest of what he says is blather as well. We have known for years how to fix the system. The bills have been repeatedly killed in committees intentionally stacked with criminal-friendly majorities.

So Toobin is a "noted commentator"? I suppose that's true, but the mystery is why.

Posted by: Kent Scheidegger | Feb 13, 2013 7:09:19 PM

Kent --

He's "noted" because he's right in line with the abolitionists, although he occasionally pretends to be conflicted.

As you have noted on C&C, Virginia executed the Beltway sniper six years after he was sentenced. Are we supposed to believe California can't do what Virginia can?

What tripe. States and the feds should enact statutes requiring any death penalty case to be resolved by any reviewing or habeas court within 120 days after the after being filed. This would actually make the courts and counsel work. Isn't that too bad.

A society that can't execute a hate-filled, gleeful, multiple killer like Dorner marks itself as indifferent to the basic requirements of civilized life. California seems to be such a place. I'm happy that my home state, Virginia, isn't.

P.S. Any abolitionist who'd care to explain why the world would be better off with the Beltway sniper still in it is welcome to try.

Posted by: Bill Otis | Feb 13, 2013 7:45:23 PM

JWB,

I make a similar point in Self-Government, the Federal Death Penalty, and the Unusual Case of Michael Jacques, 36 VT. L. REV. 131 (2011). The piece is something of a response to a piece by Michele Martinez Campbell in the same issue. Her position is similar to Doug's in that she argues that the federal death penalty provides a good "safety valve" for non-death States that want to see truly heinous killers executed nonetheless. My piece asserts that this is simply a type of passing-the-buck that allows States to get the benefit of the death penalty without having to make the hard decision of whether to implement it themselves.

California has spoken, as recently as last November: they want their dysfunctional death penalty. Let them keep it.

Doug,

Is it your position that Dorner committed federal capital crimes or that we should amend our federal capital statutes to cover what he did?

Posted by: Michael J.Z. Mannheimer | Feb 13, 2013 8:01:18 PM

Prof. Mannheimer --

"California has spoken, as recently as last November: they want their dysfunctional death penalty. Let them keep it."

It was precisely its dysfunctionality that the abolitionists made the centerpiece of their losing campaign. Wouldn't you think that means they support making it functional rather than keeping it dysfunctional?

SCOTUS has said the DP is constitutional; indeed, unlike in the recent past, there is not a single vote on the Court to hold the DP unconstitutional per se. And the majority of voters, in California and elsewhere, want it, having considered years and years of abolitionist arguments, ranging from innocence to cost to delay. Unless the minority is to rule, why shouldn't the majority among voters (as opposed, say, to the majority among law school faculties) be able efficiently to implement what it voted for?

Posted by: Bill Otis | Feb 13, 2013 8:13:34 PM

Prof. Mannheimer --

I just now saw this entry on Crime and Consequences:

"Jennie Rodriguez-Moore of The Record reports that convicted killer John Joseph Lydon, 39, may face the death penalty for his second in-prison murder. Lydon strangled and bludgeoned cellmate and convicted child molester John Guy Alexander to death in 2010. He was already serving consecutive sentences for a robbery turned fatal, and killing another child molester cellmate in 2004. He was convicted of first-degree murder on Jan. 29. The penalty phase of the trial started Wednesday."

Question: How many more people do you think we should allow Mr. Lydon to murder before we put a certain stop to it?

Two? Five? Ten?

I'm looking for a number here. I'd welcome your furnishing one. Any other abolitionists are free to furnish theirs, too.

Posted by: Bill Otis | Feb 13, 2013 8:25:00 PM

Bill,

You are thrusting at lions of your own imagining. Not that it's any of my business, since I am not a Californian, but I think California should either (1) start executing people or (2) get rid of the death penalty. My tongue-in-cheek observation that California voters have chosen a dysfunctional system was meant to highlight that they have chosen a third, and the absolute worst, alternative: the facade of the death penalty in what is, in essence, a non-death State.

Posted by: Michael J.Z. Mannheimer | Feb 13, 2013 9:01:29 PM

@Michael J.Z. Mannheimer
California has been trying to execute more than a dozen convicted murderers for years now. The federal courts have been largely responsible for extending the lives of this group of sexual predators, child killers and mass murderers based on the flimsy pretext of lethal injection litigation.

Posted by: MikeinCT | Feb 13, 2013 9:38:01 PM

I live in a lawyer residential area. The Dorner Effect is in full bloom here. Try to rob a store. Multiple police cars arrive in 2 minutes. They are all blasting. The death penalty is at the scene. No excessive force litigation, here. Very low crime rate, only 5 miles from one of the most dangerous neighborhoods in the US. The death penalty at the scene not only deters, it eradicates crime.

Posted by: Supremacy Claus | Feb 14, 2013 6:33:10 AM

I have to side with Bill on both of these points.

What tripe. States and the feds should enact statutes requiring any death penalty case to be resolved by any reviewing or habeas court within 120 days after the after being filed. This would actually make the courts and counsel work. Isn't that too bad.

My Response: Courts cannot hope to get anywhere operating in lala land..Lets get on with it...They end result is that Ca legal system operates like it has a paper @sshole..

Question: How many more people do you think we should allow Mr. Lydon to murder before we put a certain stop to it?

Two? Five? Ten?

I'm looking for a number here. I'd welcome your furnishing one. Any other abolitionists are free to furnish theirs, too.

My answer is NONE.....Fry him now...

Posted by: MidWestGuy | Feb 14, 2013 9:56:41 AM

If there is an appropriate federal hook -- and though I have not kept up with this matter Doug B.'s factors seems to provide it especially since this is not a single murder [I find the RI, I believe, case the professor discussed earlier a much weaker case in that respect, fwiw] -- the federal government is not stepping in merely to save CA from itself or something, but to defend its own interests. A federal prosecutor and jury can then determine if the death penalty is appropriate, the d.p. currently constitutional in various cases under current law. I say this as an "abolitionist," underlining that I am able to differentiate between arguments.

Posted by: Joe | Feb 14, 2013 12:19:06 PM

Professor Mannheimer, the people of California have not chosen a dysfunctional system. The problem is a malfunction of representative democracy. The people of California lean left on many social, economic, and environmental issues but are conservative on criminal justice issues. The legislative leadership has been doctrinaire liberal down the line. As a result, the procedural reforms needed to make the death penalty work have been regularly killed in legislative committees, even though they would have passed if put to a popular vote or perhaps even if brought to a vote on the floor.

The reason for the skew between the people's views and their representatives' views has been, in part, the way candidates have been nominated and elected. The districts have been gerrymandered to be "safe" for one party or the other. In the primary, the more-liberal Democratic candidate or the more-conservative Republican candidate wins, and then the general election is a foregone conclusion. The result is a legislature much more polarized than the people it is supposed to represent. Because California leans somewhat left overall, the polarization has put the more-than-somewhat left in charge. The initiative is available to override the legislature, but it is a blunt instrument not well suited to the fine-tuning needed for matters of procedure.

Recent reforms may change some of this. Reapportionment was assigned to a commission which was not as nonpartisan as hoped but still produced somewhat more competitive districts. The primary system was also changed to give moderate candidates a better shot. The present legislature has more Democrats than the previous one, but more of them may be moderate and willing to represent the people's view on this issue. We will see.

Posted by: Kent Scheidegger | Feb 14, 2013 1:20:34 PM

To answer your questions, Michael J.Z.M., it is my (bloggy, off-the-cuff) view that (a) Dorner committed plenty of significant/important actions implicating federal/commerce interests that I think, under current federal capital statute, could and would make him potentially eligible to federal capital prosecution, and (b) we should have federal capital statutes written sufficiently broad to allow the feds, within their traditional prosecutorial discretion, to get involved in any/all "major" multi-person murder cases implicating national interests.

As my prior comments on this matter (and other high-profile multiple murder cases) have been meant to indicate, I see Dorner's crime (and similar ones) to be a matter of national attention/concern/resources than 99.999% of the fundamentally "local" crimes committed by the 10,000+ street-level drug dealers and child porn downloaders who get prosecuted in federal courts every single year.

Posted by: Doug B. | Feb 14, 2013 1:31:16 PM

Bill Otis quotes the following:

"Jennie Rodriguez-Moore of The Record reports that convicted killer John Joseph Lydon, 39, may face the death penalty for his second in-prison murder. Lydon strangled and bludgeoned cellmate and convicted child molester John Guy Alexander to death in 2010. He was already serving consecutive sentences for a robbery turned fatal, and killing another child molester cellmate in 2004. He was convicted of first-degree murder on Jan. 29. The penalty phase of the trial started Wednesday."

Query? Why did prison authorities place a a child molestor together with Lydon? Deliberate? Of course. Just deserts? maybe

Posted by: onloooker | Feb 14, 2013 6:06:01 PM

It does seem remarkable that after he killed one child molester cellmate he got another one (or any cellmate at all...).

I don't mourn the DC sniper. If he had a heart attack, fell off a staircase, an anvil fell from the sky and killed him, good riddance. But I don't like the government - a group which collectively can't even reliably figure out my taxes, zone my city, or pick up my garbage on the assigned days - having the power of life and death.

Posted by: anon | Feb 15, 2013 12:23:30 PM

well onlooker i'd have to say either criminal stupidity or colusion in Murder!

with this buch of fuckups i'd go with criminal stupdity!

Posted by: rodsmith | Feb 15, 2013 9:36:36 PM

Scheidegger's criticism of Toobin is over-the-top, inappropriate, and not fact-based.

In 1972, the California Supreme Court declared the death penalty cruel and unusual punishment in People v. Anderson, 6 Cal.3d 628 (1972).

Thus, there was no constitutional authorization for implementation of the death penalty in the state, or appeals of death verdicts, until the Legislature, and then the voters, reinstated the death penalty later in the 1970s.

Prof. Mannheimer's observation about Bill Otis thrusting at lions of his own imagining is quite apt. Such is the manner in which Bill Otis' positions on most criminal justice issues are formulated.

Posted by: No State Killing | Feb 18, 2013 2:16:04 PM

No State Killing --

"Scheidegger's criticism of Toobin is over-the-top, inappropriate, and not fact-based."

Then I'm sure you can refute it, rather than just toss out adjectives. Should I wait?

"Prof. Mannheimer's observation about Bill Otis thrusting at lions of his own imagining is quite apt. Such is the manner in which Bill Otis' positions on most criminal justice issues are formulated."

Rather than ad hominem bromides, let's talk specifics. Here is the question I asked:

"Jennie Rodriguez-Moore of The Record reports that convicted killer John Joseph Lydon, 39, may face the death penalty for his second in-prison murder. Lydon strangled and bludgeoned cellmate and convicted child molester John Guy Alexander to death in 2010. He was already serving consecutive sentences for a robbery turned fatal, and killing another child molester cellmate in 2004. He was convicted of first-degree murder on Jan. 29. The penalty phase of the trial started Wednesday."

Question: How many more people do you think we should allow Mr. Lydon to murder before we put a certain stop to it?

Two? Five? Ten?

Please give us your exact number, Mr. No State Killing.

Posted by: Bill Otis | Feb 18, 2013 2:28:27 PM

This should be stopped! Yes, how many numbers of victims are we going to count for this terrible happening to stop? Do your work people, don’t just sit there and wait!

Posted by: Read More... | Feb 20, 2013 4:10:19 AM

Bill Otis --

Take a breath, and get over yourself.

Posted by: James Turner | Feb 20, 2013 10:17:29 PM

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