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December 29, 2010

Might California have an ideal(?) dysfunctional(?) capital punishment scheme?

The many question marks in the title of this post is prompted by recent news of record low murder rates in Los Angeles (discussed here), together with this new piece in the Los Angeles Times headlined "California sentences more prisoners to die while executing none."  Here are excerpts from this news report:

California continued to buck a nationwide trend away from costly and litigious death sentences in 2010, adding 28 new prisoners to the country's most populous death row, according to correction officials and a national database on capital punishment. Los Angeles County alone condemned eight defendants to death this year, the same number as Texas, and Riverside County sent six men to await execution, officials said.

The state's death chamber was idle for a fifth year, though, because of protracted legal challenges of lethal injection practices and a nationwide shortage of the key drug used in the three-injection procedure. Whether executions will resume in 2011 could be decided early in the new year, when a federal judge is expected to decide if the state's newly revised lethal injection procedures conform with a constitutional ban on cruel and unusual punishment.

But with 717 condemned inmates on California's death row, the legal tug-of-war over capital punishment is expected to intensify, experts say, especially with incoming Gov. Jerry Brown and Atty. Gen.-elect Kamala Harris known to personally oppose executions on moral grounds. Both politicians, however, have said they will uphold death sentences in their new jobs....

Still, in California, capital punishment enjoys majority support in public opinion polls, though its backing is down from 78% two decades ago to about 66% now. Nationally, an October Gallup poll recorded 64% of those surveyed in favor of the death penalty.

"What could be operating here is that the death penalty is not seen as real in California, as there hasn't been an execution in almost five years," said Richard Dieter, executive director of the Death Penalty Information Center. "In jurors' minds, they can vote for a death sentence without the worry that 10 years later some new evidence [of innocence] might emerge. In California, that inmate is not going to be executed in that time and probably is never going to be executed."

Death sentences have dropped markedly in other areas of the country, especially in smaller cities and counties that can't afford the legal costs of defending the verdicts through years of appeal, Dieter said.

Riverside County Dist. Atty. Rod Pacheco, a supporter of capital punishment, said cost shouldn't be a consideration, that district attorneys are "in the job of making sure justice gets done." His prosecutors pursue a death penalty when the circumstances of the crime warrant it, he said, calling the penalty not only morally justified but also necessary as a deterrent and a means of dealing with criminals "so unbelievably dangerous that they cannot even live in our society in a correctional facility."

The office of Los Angeles County Dist. Atty. Steve Cooley, who lost a close race for state attorney general to Harris, "is complying with established law when it fulfills its duty to seek the penalty in appropriate cases," said spokeswoman Sandi Gibbons. She said the office reviewed nearly 1,500 cases in the last decade in which the defendants were eligible for the death penalty because of aggravated circumstances and sought it in 113 instances, or fewer than 10% of cases where it could have been applied.

California has executed 13 inmates since capital punishment was restored in 1976, two in San Quentin State Prison's gas chamber and 11 by lethal injection. The last execution was in January 2006.

December 29, 2010 at 11:47 AM | Permalink


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One of the many problems with the California death penalty scheme is that the special circumstances that can qualify a murder for the DP are now so broad that virtually any first degree murder can fit into one of them. It's due to a combination of a legislature that cannot stop adding new special circumstances and a supreme court that has broadened "lying in wait," to take one example, to include any time the victim is killed when not expecting it.

Maybe you agree that any killing committed for financial gain, or committed by poison, or committed by discharging a firearm from a motor vehicle, or by means of an explosive device, should be eligible for the death penalty. It just leads to far more death penalty-eligible murders than in other states.

(And these are just a few examples - I think there are 34 special circumstances now, but I haven't counted in a while. You can also get the DP in California if you're an aider and abettor, not the actual killer, under certain circumstances.)

Posted by: SRS | Dec 29, 2010 12:34:42 PM

Statutory eligibility is too broad, but that is not the source of California's problems. Actual application is narrowed by the discretion of prosecutors and juries to the point where California has only sentenced about half as many murderers, proportionately, as the average death penalty state over the years.

Posted by: Kent Scheidegger | Dec 29, 2010 1:44:03 PM

Honestly, the only way to deal with the backlog they already have is to, besides narrowing the special circumstances, grant clemency to hundreds of inmates. That would alleviate the strain on the public defenders and the appeals courts and you could safely commute a couple hundred death sentences without actually 'saving' any inmate. Simply commute those with the weakest cases, the poorest health, and those closest to a natural death from old age. It's unlikely any of them would have been executed and it increases the likelihood that the more serious, stronger cases will be resolved in less than 30 years.

Posted by: MikeinCT | Dec 30, 2010 12:13:34 AM

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