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March 31, 2010

Are California death sentences going up because of a lack of executions?

The question in the title of this post is inspired by this new article from the San Francisco Chronicle, which is headlined "State death sentences rise as U.S. total falls."  Here are the basics:

As the number of death sentences declined nationwide in 2009, death verdicts in California rose to their highest total in nearly a decade, the American Civil Liberties Union said Tuesday. All but five of the 29 California death sentences last year were handed down in Los Angeles, Orange and Riverside counties, the ACLU said....

Nationally, death sentences fell to 106 in 2009, their seventh straight year of decline and the lowest total since the Supreme Court reinstated the death penalty in 1976, according to an earlier report from the Death Penalty Information Center, a separate organization....

"All California communities would be better served if California opted for permanent imprisonment as a safe and cost-effective alternative to the death penalty," said Ramona Ripston, executive director of the ACLU of Southern California.

The group cited a state commission's 2008 report that said capital punishment was costing California $137 million a year. It would cost another $95 million a year to cut appeals times to the national average, the panel said.

The California District Attorneys Association disputed the report's conclusion that abolishing the death penalty would bring major cost savings. The association's executive director, Scott Thorpe, also questioned the ACLU's report Tuesday.

Rather than focusing on one year's statistics, Thorpe said, "you have to look at a number of years to determine what is a trend or an aberration." He noted that death sentences had averaged fewer than 20 a year statewide in the four years before 2009. He also observed that last year's total was well below the 41 death sentences issued in 1999, the most since California reinstated its death penalty law in 1977.

The ACLU report, based on state records, pointed to one long-term trend, an increase in the number of African Americans and Latinos on Death Row. They accounted for more than 65 percent of the death sentences in 2009 and make up more than 58 percent of the condemned prisoners in the state, compared with 44 percent of the general population, the report said.

California has the largest Death Row of any state, with 701 prisoners, more than one-fifth of the nation's total.

I do not think it is too surprising that the number of death sentences are rising in California at the same time that lethal injection has created a long-term de facto moratorium on executions in the state.  I suspect that jurors in capital cases (justifiably) consider their vote for death in these cases to be largely symbolic with little or no practical consequence on the likely fate of the defendant they condemn.  Ironically, jurors' decision to vote for death more often may do some California defendants a favor: there is every reason to suspect and predict that the Ninth Circuit will review a murderer's conviction and sentence even more closely when that murderer received a sentence of death rather than life.

March 31, 2010 at 05:22 PM | Permalink


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No need for suspicion -- that is a fact. The Ninth Circuit has multiple special procedures for capital habeas cases. This starts with "weighting." Incoming cases are weighted according to complexity/difficulty, and then each panel is assigned approximately 120 points of cases per week-long sitting. Most cases are 3s or 5s. A particularly complex civil litigation appeal or constitutional or ad law issue (1st amendment airport case, big takings case, environmental case) may be 7 points. You rarely see more than 7 points, unless there are consolidated appeals raising separate issues. Death cases are automatically assigned either 24 or 32 points. This both signifies their importance and clears the decks to allow space to consider the case in more detail than in other sittings where the case could be replaced by 4 or more very complex, difficult cases (i.e., 7-pointers).

While I think this is appropriate, it is also the case that a habeas corpus petition raising substantial errors in a serious, but non-capital, felony case runs a much greater risk of slipping through the cracks. Still, for the most part, this is more a product of the excessive care with which capital cases are handled than of sloppy treatment of non-capital petitions. (In other words, though I think the Ninth is pretty careful and usually identifies the non-capital petitions that need serious attention, they are super-duper careful in the death cases.)

Posted by: Anon | Apr 1, 2010 1:10:37 PM

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