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July 14, 2011

Will cost arguments convince California voters to ditch the death penalty in 2012?

The election season of 2012 will be amazing in California for sentencing fans because it appears that three major criminal justice issues could all be placed directly before the voters in propostions to (1) legalize marijuana, (2) reform the state's three-strikes law, and (3) repeal the state's death penalty.  In all three campaigns, the economic costs of the status quo and the potential benefits of reform will be a major focus, and a couple newspaper commentaries in California papers today are already making the case that California's capital punishment system is a waste of money.

From the Stockton Record, this editorial headlined "Slow-motion death penalty" makes these points:

Since being reinstated in 1978, the death penalty has resulted in 14 executions (one of them in Missouri), the first coming in 1992, 14 years after the penalty was reinstated, and the last in January 2006.  In that same period, 78 death row inmates have died, 18 by suicide but most from natural causes.  Today there are 714 condemned inmates, far more than the 513 men and women California has executed since 1893.  We can accomplish the same slow-motion death by putting these people in the general prison population.

Since 1978, the state has spent about $4 billion sustaining the system.  That's enough money to pay 5,000 police officers $60,000 a year for more than 13 years.  What's this all mean?  It means the system is broken and there is no evidence it can or will be fixed. One thing is sure: The cost of keeping it in place will only increase in the years ahead.

It is that wasteful spending that is at the heart of moves to ask state voters to again consider this punishment.  The simple question: Can its cost be justified?  Not according a growing number of studies and people, including attorney Don Heller, the former prosecutor who authored the state's 1978 death penalty law.  "I fervently believe that capital punishment should be abolished," Heller said. "It's costing the state a huge amount of money."...

Of course, there are those who believe just as fervently that you cannot put a put a price tag on justice. That the victims of the condemned deserve justice. And that killers who are killed don't kill again.

However, what Senate Bill 490 asks voters to do -- assuming it clears the Legislature and is signed by the governor -- is to set aside the moral arguments for and against the death penalty and consider it only in terms of money.  Is it worth the cost?  It has cost California an estimated $4 billion to execute 14 people since 1978.  Based on that, capital punishment is a colossal waste of resources.

Similarly, this op-ed by George Skelton in the Los Angeles Times is headlined "Repeal the death penalty: Each execution costs taxpayers $308 million, a colossal waste."  It begins this way:

Waste, fraud and abuse — also known as California's death penalty. It's a colossal waste of money for arguably the state's most inefficient program.

California has spent an estimated $4 billion to administer capital punishment over the past 33 years and executed only 13 people. That's about $308 million per execution. It's a shameless fraud on the public. Californians have consistently supported the death penalty and been led to believe that it exists. It really doesn't.

We just stack up more and more killers on death row. There's now a backlog of 714. It's an abuse of California resources — property and personnel, public and private.

San Quentin's death row occupies valuable land on San Francisco Bay that is better suited for economic development. Meanwhile, far too many brainy lawyers and academicians test their wits on death penalty issues rather than productively debating projects and policies needed to improve the state.

Don't misread me. You won't find any arguments here about the death penalty being unfair, immoral or barbaric. I don't buy it. Far as I'm concerned, these characters — once proven guilty beyond a shadow of doubt — should be immediately removed from our planet. Some creeps should be appropriately tortured first.

But the issue here is not about the merits of the death penalty. It's about inefficiencies and priorities. As we raise university tuitions out of sight, whack the poor and lay off cops, do we really want to be spending $308 million to snuff out one individual?

What California has been doing for the past 33 years is insane: piling murderers into death row with little prospect of executing them. There the condemned get their own single cells. They have access to free lawyers and personal TVs.

A recent extensive study of California's death penalty cited the case of a white supremacist who killed a fellow gang member. He asked his attorney to get him sentenced to death, researchers reported, "because, as his attorney explained, 'living conditions at San Quentin prison's death row will be better than if he serves a life term at Pelican Bay.'"

I personally find these kinds of cost arguments concerning the death penalty convincing and compelling, especially in California where a number of legal and social forces ensure that the state will have to spend many more millions in any effort to execute even a small number of the many hundreds of murderers now on its death row.  But I am certainly not the average California voter, and thus I really wonder whether these argument can and will be effective in a proposition campaign.

July 14, 2011 at 09:57 AM | Permalink


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How bizarre to say, as Skelton does, that in considering whether to abolish the death penalty, "...the issue here is not about the merits of the death penalty."

If you want to lower the costs of X, you don't ignore the merits of X, and you don't just breezily abolish it. You, uh, LOWER ITS COSTS. Under the theory advanced here, we should abolish imprisonment too, since, whatever its merits are, it costs a bundle (much more than the DP), so out it goes.

Can we say, "simplistic"?

One way to contain costs for the DP is simply to cap the amount that can be spent pursuing it: One million for each side, max. (Timothy McVeigh's defense alone cost a scandalous $13,000,000 -- all for a bunch of hokum).

We could also require every law firm having say, 50 or more partners, to provide pro bono representation.

We could, by statute, order that appellate counsel be appointed within 30 days of sentencing. (I understand that one of the major holdups is that it often takes years for the court to appoint appellate counsel).

We could, also by statute, direct the courts to resolve any DP case within 90 days of submission.

We could provide that, when a capital conviction or sentence is overturned for ineffective assistance of counsel, the deficient attorney be subject to a mandatory minimum civil penalty of $50,000, plus reimbursement of costs to the state. I guarantee you this will improve performance pronto. There will be many fewer do-over's, with the concomitant substantial cost savings.

This is hardly and exhaustive list. It is merely to illustrate that the cost and delay problems can be addressed by remedies well short of abolition. (Of course abolitionists know this already, although they pretend not to).

Posted by: Bill Otis | Jul 14, 2011 11:19:18 AM

Abolitionist activists often play fast and loose with the facts. The California state senator who's proposed a referendum on repeal (or "replacement," as she has queerly put it) has stated on a number of occasions that innocent people have been executed in the USA. On a San Francisco public radio show, in which Kent Scheidegger took part, she went as far as to say that 12 innocent people had been executed in Illinois and that this had led the governor to commute the sentences of everyone on death row. Pure lies and nobody's called her out on this.

Posted by: alpino | Jul 14, 2011 2:11:14 PM

alpino --

The reason she doesn't get called out for lying is that abolitionists have no problem with lying, as we have seen time and again in the comment section of this blog.

The reason they have no problem with lying is that it's the only way they can win the argument. Support for the DP has been steady at 2-1 for years now, and is at least that high in California. The truth isn't working for abolitionists, so they're going to try something else.

Posted by: Bill Otis | Jul 16, 2011 6:43:51 AM

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