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April 26, 2010

"California Case Spotlights Dysfunctional Death Penalty"

The title of this post is the headline of this new ABC News piece providing a follow-up to the plea bargained resolution of the high-profile Chelsea King prosecution.  Here is how the piece starts:

Chelsea King's parents reluctantly agreed to a sentence of life in prison for their daughter's rapist and killer, calling the death penalty in California "an empty promise."

The Kings join a growing list of victims' families, law enforcement officials and other capital punishment proponents who have grown disillusioned with California's death penalty. The decision to forego capital punishment for registered sex offender John Gardner, who this month admitted killing Chelsea King and another teen girl, has once again thrust the gridlocked system into the spotlight.

Five more inmates joined California's death row this year, pushing the population past a record 700 inmates, by far the nation's largest. Florida is second with 394 inmates on death row, and Texas is third with 333, but both of those states regularly carry out executions.

Legal challenges over how lethal injections are administered to condemned prisoners in California have halted executions in the state since Clarence Ray Allen was put to death Jan. 17, 2006. The lawsuits are far from being resolved, and most observers believe it could be years before another execution takes place at San Quentin Prison.

Even before the suspension, only 13 condemned inmates have been executed from the time capital punishment resumed in the state in 1977 until February 2006, when U.S. District Court Jeremy Fogel halted executions until prison officials revamped their lethal injection process....

California Chief Justice Ron George told the California Commission on the Fair Administration of Justice that the state's capital punishment system is "dysfunctional." Death penalty appeals account for 25 percent of the high court's workload, he has said.

If the only goal and value of having the death penalty on the books is to have lots of murderers executed, then it is fair to call California's capital punishment system is "dysfunctional."  But, if the total number of executed persons is the critical metric here, then nearly every state's capital punishment system except Texas and Oklahoma and Virginia (and Ohio lately) should be deemed "dysfunctional."  Also, the federal death penalty would also be very dysfunctional if judged merely by an execution metric.

In contrast, if one useful goal and value of having the death penalty on the books is to have lots of murderers sentenced to death, then California's capital punishment system is significantly more functional that those of lots of other states.  Indeed, as this recent story out of California highlights, there may be many cases in which a prosecutor and the victim's family care more about getting a death sentence imposed than about having an execution take place.

Further, as I explained in this post, the California's capital punishment system may have been the key (functional) factor that helped bring the Chelsea King murder case to a relatively satisfying conclusion in relatively short order.  As I have stressed recently in this post, a critical function of a capital punishment system is to help process via pleas some really awful murder cases.  It seems that this function is still working in California.

I raise all these points largely because I suspect that relatively few Americans would take pride in a capital punishment system that regularly resulted in lots of murderers executed.  Just to catch up with the current death row "backlog," there would need to be ten executions each and every week until 2016.  I suspect that such a strong and steady pace of US executions, especially if the firing squad becomes fashionable, would not be welcomed even by most person who support the death penalty (though maybe I underestimate the affinity for executions among ardent supporters of capital punishment).

Some related posts:

April 26, 2010 at 11:41 AM | Permalink


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California has always been plagued with a "dysfunctional" scheme. In the late 70's and 80's, the California Supreme Court was likely the most liberal court this country has ever seen. Until the makeup of the court changed, they reversed 95% of all death sentences. Meanwhile, former President Carter packed the 9th Circuit with ultra liberals and that problem persists today with 700 inmates living with no fear at all of being executed. Even one of my favorite authors Jonathan Kellerman has a line in his new book: "No one gets executed in California, but prosecutors collect lethal injection sentences like baseball cards".

Posted by: DaveP | Apr 26, 2010 2:57:56 PM

"Florida regularly carries out executions". Right. 1 or 2 a year.

Posted by: DaveP | Apr 26, 2010 3:00:57 PM

This piece seems to be presented with an anti-DP slant (an "empty promise"), and as a factual matter, that phrase is largely, though not entirely, correct. (There have been 13 executions by California since Gregg, but the interval between the sentence and the carrying out of the sentence is far too long (I believe it well exceeds 15 years, and might be up to 20).

The problem is not the the death penalty, however. The problem is legal obstructionism. As DaveP notes, the Ninth Circuit -- America's most ideological, and most reversed -- is part of that problem.

The answer is not to throw up our hands. The answer is to defeat the obstructionists. In Virginia, the inverval is seven years. There is no sound reason that cannot be replicated in the rest of the nation.

Posted by: Bill Otis | Apr 26, 2010 3:57:36 PM

I think that even 7 years is far too long.

Posted by: Marc Shepherd | Apr 26, 2010 4:35:53 PM

Even though the 9th Circuit has refused to abide by AEDPA, the Supreme Court has intervened most of the time to reinstate the conviction/sentence. There are a couple on the way to SCOTUS I am going to watch that the 9th reversed recently. Lucky for Utah that they are not in the 9th's jurisdiction. I am sure there are some lefties in San Francisco who would love to stop the firing squad execution coming up soon. What ever happened to all the committee's that were going to split up the 9th? They take forever to discharge a case whether they are affirming or reversing.

Posted by: DaveP | Apr 26, 2010 4:56:25 PM

One of the biggest reasons for long delays in California between sentence and (the inevitable) affirmance by the California Supreme Court is the lack of qualified lawyers willing to take DP cases. Most defendants wait 3-4 years even to have an attorney appointed. It's then around 5 years before the Court hears the case.

Until you make it attractive to attorneys to represent death penalty defendants on appeal, there's not much that you can do about the delays.

Posted by: arx | Apr 26, 2010 5:04:16 PM

The Cali DP is not dysfunctional. It is carrying out its true purpose very well. To generate $billions in worthless DP appellate lawyer jobs.

Posted by: Supremacy Claus | Apr 27, 2010 8:55:56 AM

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