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August 31, 2007

Suggestions for fixing potholes on the slow road to death in California

32202836 Yesterday the Los Angeles Times had this article, entitled "Judge takes on death row gridlock," which details the delays in the death row appeals in California in discussing a recent law review commentary on this topic by a Ninth Circuit judge.  Here is the start of the LA Times piece:

The death penalty system in California is so backed up that the state would have to execute five prisoners a month for the next 10 years just to clear the prisoners already on death row.

The average wait for execution in the state is 17.2 years, twice the national figure. And the backlog is likely to grow, considering the trend: Thirty people have been on death row for more than 25 years, 119 for more than 20 years and 408 for more than a decade.

These statistics were cited by an influential judge in a recent article, one in a small but growing number of critiques of California's death penalty machinery, which has proved to be so clogged that one jurist has called capital punishment in the state an illusion. 

Arthur L. Alarcon, a veteran judge on the U.S. 9th Circuit Court of Appeals in Los Angeles, supports capital punishment and has voted in favor of death sentences more often than he has voted against them.  His article in the Southern California Law Review is drawing considerable attention, not least because, unlike many critics, he does not blame delays on defense lawyers or liberal judges.

Rather, he has called for a radical overhaul of what he described as systemic problems, including a critical shortage of defense lawyers to represent death row inmates on appeal and an inefficient use of judicial resources. Alarcon suggested a major infusion of cash to attract lawyers to the difficult cases. He also proposed shifting automatic judicial review of death penalty cases to the state's appeals courts.

Some recent related posts:

UPDATE:  Thanks to DPIC, I can now provide this link to Judge Alarcon's article.

August 31, 2007 at 07:51 AM | Permalink


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So, let me get this straight. If there were more “qualified” defense lawyers (i.e. 20 years criminal experience and paid over $400 per hour and had staffs and investigators) more people would be convicted and sentenced to death quicker?

I guess it is a good thing that someone actually points out that there are systemic problems rather than blaming the winning side everything.

Posted by: S.cotus | Aug 31, 2007 10:10:19 AM

I wish we could speed up the system by taking away issues from the condemned. For instance, there is the issue that the manner of death will be painful. WHO CARES? He should have thought of that before murdering someone. "Cruel and unusuel? And then there is the claim that, although he is guilty as sin, and was sane at the time of the murder, he is no longer sane enough to be executed. Again, WHO CARES? Or, if the condemned is a volunteer and wishes to waive his appeals, let him do that, rather than having years of pointless appeals over the question of whether he is or is not competent to make that decision.

Posted by: William Jockusch | Aug 31, 2007 1:21:26 PM

Mr. Jockusch, You raise some interesting issues, but so far nobody has seriously proposed any changes in the substantive law.

For example, your claim that people should not be able to raise 8th amendment issues is interesting. Unfortunately, since these claims are constitutional in nature, a mere statute will not change the situation. Recently, no proposed constitutional amendments have suggested modifying the 8th amendment to, for example, not apply to the death penalty or not allow torture. Instead, there is far more interest in changing the constitution to prohibit states from recognizing homosexual marriages. Therefore, it seems that the people have spoken on your issue, and you lost. This is the way we do things in our Democracy-like government.

You do not make the argument that the constitution is being construed or interpreted incorrectly. Instead, you claim that your argument is correct because “Who cares.” Unfortunately, in the US, everyone can claim that a proposed state action that injures them in some way is unconstitutional. Again, we could modify the constitution, but far more people are interested in keeping gay people from marrying or allowing states to ban flag-burning then they are in changing what constitutional challenges can be made to killing someone.

Finally, you propose that people subject to killing by the state be allowed to “waive” legal issues regardless of whether they are competent or not. Unfortunately, the decisions regarding whether someone really is competent (which is different than insane, as a legal matter) are rolled into the 8th amendment.

Anyway, I would urge you to work toward changes in the constitution prohibit all lawsuits that are not countersigned by, say 51% of the populace, so we can be sure that someone “cares.” However, at the moment, far more people care about prohibiting flag burning then making the road to death any faster.

Posted by: S.cotus | Aug 31, 2007 2:05:53 PM

I agree that our Constitution currently prohibits many things. Does that make it illegitimate for me to express an opinion about it?

As we all know, the Supreme Court does read the election returns. It can find something unconstitutional in one century and change its mind in the next. By expressing my opinion, I am merely trying, in my own admittedly very small way, to move things in that direction.

I will add: in light of the strong statistical support for the proposition that executions of murderers do in fact deter murder, anyone, including the Supreme Court, who makes them more difficult is in a difficult ethical position.

Posted by: William Jockusch | Aug 31, 2007 5:32:45 PM

I would add this: there are at least two different planes on which one can argue this type of issue. One is the level on which I am arguing this one: common sense. The other is to try to change something within the framework of existing SCOTUS decisions. An attorney who does not sit on or argue before the Supreme Court may feel themselves limited to arguments within the framework of existing law. The Supreme Court, however, has the power to take a look at existing law, decide that it is contrary to common sense, and change it. One recent dramatic example of this is in Patent law where, I believe, the Court made some significant changes recently, most notably by altering the previously-understood interpretation of the word "obvious". And before they did that, a lot of people basically said that the existing system was contrary to common sense and needed change.

Given that it worked for patents and the word "obvious", is there any reason why it cannot work for executions and the phrase "cruel and unusual"?

Posted by: William Jockusch | Aug 31, 2007 5:50:20 PM

“Common sense” is such a silly term. I make a point of justifying everything I want based on common sense. Strangely, everyone that opposes my position also justifies their beliefs based on such silly rhetoric. It is cute, however. You are free to go to law school to participate in the real discussions about the matter.

Of course you can express your opinion. That doesn’t mean your opinion can be considered a legal theory or is even viable. Heck, if we listened to everything that non-lawyers said was their “opinion” life would be nasty, brutish, and short. Luckily, the lay people are more of an audience then actual participants in these decisions. Sometimes, some lawyers think that it is necessary to kill a few people to placate them, but rarely have we ever even come close to executing one of us (and, strangely enough, he was a former prosecutor).

I am not sure that state-killing people actually deters murder. Not only would you need to provide specific examples of such “Statistical” support, but you would need to defend it against the obvious problems with any such studies, namely that “murder” is a legal conclusion, and there is no way of telling the accuracy of such conclusions (as crimes might not be solved, people may be acquitted, people may be charged with lesser crimes, or people may be falsely convicted).

“Obviousness” in the patent context referred to a rather complex legal doctrine, which, surprisingly is subject to considerable debate (not just as to whether something is obvious, but what such doctrine even means).

Posted by: S.cotus | Aug 31, 2007 6:39:22 PM

A list of deterrence studies published in peer-reviewed journals (both sides, not filtered by result like some collections) can be found here:


One change that would greatly simplify capital litigation would be to overrule Lockett v. Ohio, and, yes, it has been seriously proposed, by Justices of the Supreme Court.

Posted by: Kent Scheidegger | Aug 31, 2007 7:06:32 PM

S.Cotus -- why do you feel the need to give me so many multi-year homework assignments?

Posted by: William Jockusch | Aug 31, 2007 8:25:28 PM

Kent, what about this?

Capital Punishment and Homicide: Sociological Realities and Econometric Illusions

Conclusion: "The value of this research is shown by its success in demonstrating that capital punishment has not deterred homicide."

Posted by: George | Aug 31, 2007 9:57:14 PM

Mr. Jockusch, While you have a "right" to your opinion (which, if ever infringed upon by the government might be met with a resounding "who cares?") if you ever want to be taken seriously you need to spend years studying a topic . This is why Talkradio (for the first 10 minutes) is hilarious. Uneducated people are given an opportunity to talk, and rather than talk about something they know (which, I conceded, might be something complex -- like car repair), they talk about things that they have never seriously studied.

I suspect that most statistical studies of deterrence are almost completely unreliable one way or the other because, at best, they rely on data from the very system that they seek to modify. So, for instance, if a state says that someone was "murdered" then the articles that CJLF decides to post will rely on that statistic, but if the police decide to let a killing slide (for whatever reason) there is nothing that CJLF can do about it. Of course, by the same token, if a state decides to eliminate completely the crime of "murder" then the murder rate will go down.

At worst, they are just political tripe from people that want to reach some political goal -- such as killing more people faster. Now, some (but not all) of the scholars cited by CJLF take their work seriously and try to control various variables. But, as I said, the first poster would have to defend the studies he relies upon from my criticisms and the ones in George's study.

Posted by: S.cotus | Sep 1, 2007 7:17:46 AM

Responses to the critics are presently in "working paper" status, available on SSRN.

Lest there be any misunderstanding, I do not claim that the pro-deterrence position has been definitively proved. However, I often see statements of the opposite from the anti side, i.e., that deterrence has been conclusively disproved or that there is no evidence to support it. The European Union's whine about the 400th Texas execution included such a statement. These statements are false.

It is a general principle of human behavior that incentives matter. Increase the cost of doing something, and there will be some reduction in the number of people who choose to do it. People who claim that the death penalty is somehow an exception to this principle, that a credible, enforced death penalty would not deter any murders, have the burden of proof. They haven't carried it.

Posted by: Kent Scheidegger | Sep 1, 2007 12:00:38 PM

S.Cotus --

In the field of business, who would be more deserving of your attention: Henry Ford, who dropped out of high school, Bill Gates, who dropped out, as an undergraduate, from Harvard, or Jeff Skilling, who finished Harvard Business School?

In the question of how to organize a society, would you rather learn from George Washington, who went to school very little, if at all, or from Karl Marx, who had a PhD in Philosophy from Friedrich-Wilhelm's Universitaet?

In politics, is more attention given to the late Ronald Reagan, who did finish college, but earned poor grades, or from the brilliant linguist Noam Chomsky?

In law, would you rather listen to Reade Seligmann, who has, to date, not completed his college education, or Mike Nifong, who has finished law school?

In World War 2, which general had more success -- Georgi Zhukov, who grew up as a peasant, or Maurice Gamelin, who graduated first in his class?

In Mathematics, would you rather have learned from Srinivasa Ramanujan, who had little formal training until late in his career, or from one of our many recent PhDs who have been unable to find employment in the field?

Posted by: William Jockusch | Sep 1, 2007 1:44:01 PM

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