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July 25, 2011

"Can California Save its Death Sentences? Will Californians Save the Expense?"

The title of this post is the title of this new piece by Professor Scott Howe, which is now available via SSRN.  Here is the abstract:

Imposing a death sentence in California has become symbolism with a staggering price. From 1973 through 2009, California sentenced 927 persons to death but executed only thirteen.  No executions have occurred since 2006.  There are presently 714 persons on death row.  Average delays between death sentences and executions are among the worst in the nation and in some cases will reach 30 years.  One recent study estimated that taxpayers have spent more than $4,000,000,000 on the California death penalty since 1978 and more than $184,000,000 in 2009 alone.

This Article addresses two major questions about the future of California’s death penalty. First, it asks whether California can save its pending death sentences and answers negatively.  I conclude that the courts are unlikely in the near future to declare most of the death sentences unconstitutional due to delay.  Yet, I also conclude that the state is not able to institute reforms that can soon achieve a large and regular flow of executions, which means that a large portion of the pending sentences will not be carried out.

The Article then asks whether Californians will soon take steps to avoid the expense of trying to save all of the death sentences.  I discuss the possibilities and the doubts. Governor Brown has stated that he will not grant blanket commutations.  The options for the legislature are also limited, because the state constitution requires voter approval to amend the death-penalty statutes.  Because of the growing recognition that the current death-penalty system is not sensible, California may be headed toward a public referendum in which the voters will decide.  I present the competing perspectives on the causes of the current malfunction and the solutions that will vie for public acceptance.  Putting aside the view that the death penalty is inherently wrong, I conclude that there will be three non-abolitionist accounts plus one that favors abolition.  I explain why they are all flawed. Because the California death-penalty system is unavoidably hemmed in by economic, cultural and legal constraints that create difficult trade-offs, voters can only try to find the lesser evil among bad options.  I believe that abolition is the lesser evil in California, but the lesser-evil argument is disquieting in that it calls for real sacrifice, and it may not soon win out.

July 25, 2011 at 11:13 AM | Permalink


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Once again, what cost justice? How many liberal Norwegians would want the death penalty about now? How many would at least want LWOP? How much do you think the victims families would want their govt to spend to ensure Justice is delivered to the mass murderer?

Believing that the liberals really wnat to save states money vs them wanting any excuse to get rid of the death penalty is foolish. When will they stop? If the DP is too costly then whats next on that slippery slope? Of course its LWOP? They will then argue that LIFE is too harsh, what harm could a ninety year old do? Why spend so much on Health care for senior prisoners. Agree with them that the DP is too costly will be a grave mistake. We shouldn't want to emulate Europe or Mexico or canada when it comes to justice and law and order. Beware of the liberal anti-DP activist. Justice in certain cases can only be delivered with the ultimate punishment: Death.

Posted by: DeanO | Jul 25, 2011 7:16:52 PM

"How many liberal Norwegians would want the death penalty about now?"

My guess is, "still very few." Like most terrorist who believe they are acting righteously, this man could not be deterred. Unlike Americans, moreover, Norwegians do not have the blood-thirst taste for vengeance that underlies retributivism and the death penalty.

Posted by: anon | Jul 26, 2011 9:56:44 AM

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