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December 11, 2011

What benefits might Californians be getting for $120 million/year in capital costs?

The question in the title of this post is prompted by this very lengthy piece appearing in the Ventura County Star under the headline "Death penalty's cost to California more than $120 million a year."   Here are snippets from the article:

Since the death penalty was reinstated in California in 1978, judgments of death have been rendered 812 times.  The resolution of those cases to date: 718 inmates are incarcerated on San Quentin's death row, 55 condemned inmates have died of natural causes, 19 have committed suicide, six died from other causes, one was executed in Missouri for a separate crime. And California has carried out just 13 executions. As of 2008, there were 30 people who had been on death row for more than 25 years.

The cumulative cost for all this, above what taxpayers would have borne had the ultimate penalty been a life sentence without possibility of parole, is estimated at $4 billion. Just this year the cost of having the death penalty on the books is estimated at from $120 million to $184 million.

The record leads to one blunt conclusion, expressed by the authors of an exhaustive study published earlier this year in the Loyola of Los Angeles Law Review: "California has the most expensive and least effective death penalty law in the nation."

That reality has been enough to make a convert of [former LA County DA Gil] Garcetti, who has joined with other past participants in carrying out the death penalty such as former San Quentin warden Jeanne Woodford and Don Heller, the attorney who wrote the state's death penalty law, to say the system just doesn't work — not for taxpayers and not for public safety.  "You have people involved in the process who have reached the same conclusion," he said.  "It's ineffective, and we can't afford it.".

Garcetti has become the lead spokesman for a group called SAFE California.  It is sponsoring a ballot initiative, now in the signature-gathering phase, that would ask voters next fall to eliminate the death penalty and replace it with a sentence of life in prison without possibility of parole....

All death sentences are automatically appealed directly to the California Supreme Court, which is swamped with such cases.  Although the court is now keeping pace with its caseload — over the last decade it has issued opinions in 232 death penalty appeals and taken on 233 new cases — its backlog remains daunting.  From 1996 through 2001 the court decided 52 cases while 192 new ones came onto its docket....

Backers of the initiative are hoping Californians — including many of those who agree in concept with capital punishment — can be persuaded that administration of the death penalty in this state has become so inefficient and so costly it ought to be abandoned, freeing up $120 million or more annually that they assert could be spent much more productively.

They are aware it will be a tough sell politically.  Historically, Californians have strongly supported the death penalty.  The ballot measure that re-established capital punishment in 1978 passed with 71 percent support.  Eight years later, 67 percent of voters decided to boot off the Supreme Court the late Chief Justice Rose Bird and two associate justices, based almost entirely on their perceived categorical opposition to the death penalty....

Garcetti said backers of the initiative hope to make voters aware of what it's costing taxpayers to sustain the system.  "People do not know this, and when they learn this they are dumbfounded by the costs," he said.  "Circumstances have changed so dramatically in terms of our economy that people are desperate to find more efficient ways to spend our tax money."

I think I have indicated previously that I am very hopeful that the potential abolition of the death penalty be put to the voters in California, and I am especially excited that the focal point of the political dialogue may be a matter of costs and benefits.  This local article does a very nice job detailing the considerable costs to California to running its capital system, but my post seeks to urge readers to try to set forth potential benefits the state may get from this system.  Even though (too) many are often quick to say that one "cannot put a price on justice," I wonder if readers might be able to articulate some distinct benefits they percieve from California's efforts to administer capital punishment. 

December 11, 2011 at 03:22 PM | Permalink


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What you'd hurt, of course, is the idea that people have the right to govern themselves. Capital punishment is the law, and because certain judges and elected officials want to thwart it, it's deemed too expensive. Well, I can see how we reduce costs--set dates.

Posted by: federalist | Dec 11, 2011 3:29:39 PM

That they're even having this debate shows what a judicial activist "Judge" Jeremy Fogel, who has done his level best to earn the white-hot hatred of victims' families. He is a disgrace to the bench.

Posted by: federalist | Dec 11, 2011 3:35:17 PM

Different types of people weigh costs and benefits in different ways...


Posted by: anon | Dec 11, 2011 4:07:17 PM

Reading through transcripts of jury voir dire in capital cases, one sees that a significant percentage of potential jurors are operating under the mispereption that an LWOP sentence is more costly than a death sentence. Most California judges and prosecutors resist the efforts of defense attorneys to disabuse jurors of this mispereption.

Posted by: Calif. Capital Defense Counsel | Dec 11, 2011 5:15:02 PM

If costs are the sine qua non, CCDC (and I notice how you bailed on the other thread after your snark about germaneness), then you should be supporting the immediate execution of those for whom appeals have run. But we know that's not the case. And as for costs, most of those cost studies don't address the sunk costs that would be spent anyway, nor do they address the cost savings when murderers plead guilty and get an LWOP sentence. Finally, I don't think most of those cost studies address how expensive elderly prisoners can be. If meddling judicial hacks like Jeremy Fogel would stop abusing their judicial office, some of those old age costs could be mitigated in quite a few cases.

But putting all that to one side, it seems odd to think that cost is a "mitigating" factor. I know you guys like to throw everything at the wall . . . ., but that doesn't seem to be a relevant factor.

Posted by: federalist | Dec 11, 2011 5:26:02 PM

I think that one of the primary benefits of the death penalty, as it is for many laws, is its symbolic value. Laws are not passed merely for their utilitarian values or even for their pragmatic outcomes but as a means of self-identification. They represent a statement about either who we are as a people or what our cultural aspirations are. The benefit of creating contrast effects in promoting in-group/out-group dynamics is important.

The debate over money and the death penalty obscures the real issue which is that at a basic level there simply isn't the cultural will to implement it successfully. federalist is right that the quickest way to lower the cost of the DP is to set a date. The fact that we as a society are unable to set a date is a political problem more than a legal one.

Posted by: Daniel | Dec 11, 2011 6:15:44 PM

These cost equations ignore the potential for deterrence. Contrary to the conventional wisdom, many current studies support the conclusion that capital punishment can reduce the murder rate. If so, then you are asking if the price of the death penalty is worth saving lives.

Posted by: wac | Dec 11, 2011 11:03:13 PM

In the cost/benefit analysis of capital punishment, data shows that death sentences are much more costly than LWOP sentences. The Ventura newspaper article on which this thread is based simply adds more data to confirm that conclusion, at least in California cases.

Many rational jurors think of cost when it comes to making the life vs. death decision in capital trials. Over and over again, prospective jurors indicate during voir dire that cost considerations are on their minds. Likewise, many capital jurors have stated in post-verdict interviews that they considered cost in making their ultimate decision.

Pursuant to California law, jurors are not supposed to consider the cost to the State of a death sentence versus an LWOP sentence. (People v. McKinnon, 52 Cal.4th 610, 696, 259 P.3d 1186, 1252, 130 Cal.Rptr.3d 590, 669 (2011).) But they do so, anyway.

The fact that capital jurors impermissibly consider the issue raises the questions: Should they be allowed to consider the issue based on misperceptions? Should they be allowed to make life and death determinations based on the inaccurate notion that death sentences are less costly to the State than LWOP sentences? Insofar as the Supreme Court of the United States has repeatedly stressed the need for reliability and accuracy in the context of capital case decision making (Monge v. California, 524 U.S. 721, 732 (1998)), the answers to these questions seem fairly obvious.

Posted by: Calif. Capital Defense Counsel | Dec 12, 2011 12:56:08 AM

End this welfare for lawyers expense. Under 123D, it does not matter if a mistake of fact or of law has been committed in the death case. You are still executing a very violent offender, preferably between ages 14 and 18, prior to the start of his peak criminal career. There should be about 1000 executions a year, given California's population. This would end crime by attrition, and by intimidation of criminals capable of learning from the mistakes of others. It would relieve prison crowding, and allow staff to control the violent offender. Trials for the third violent offense should take place inside the prison to avoid the risk of transportation of ultra-violent prisoners in the outside world. Lawyers filing frivolous appeals, should be warned once, and lose their licenses the second time. Judges allowing frivolous appeals should be made to appear before the proper legislative committee to justify their decisions, and get impeached for a second offense. "Frivolous" means, not relating to factual innocence.

There are 2000 murders a year in California. If the number drops to below 1000, you are ahead a bunch of innocent victims.

Posted by: Supremacy Claus | Dec 12, 2011 6:52:52 AM

I know one way to cut costs. Stop mandating funding for things like the CCDC.

Posted by: Rich Mantei | Dec 12, 2011 7:45:48 AM

You know, CCDC, I am glad you post here--it's not often that I get to see sophistry in such a pure form. Simply amazing--as a matter of logic, the cost of getting to death isn't really germane to the "reliability" (whatever that means) of the determination. But because some jurors may consider it, then it becomes fair game in all capital cases. So in other words, because cost consideration is sometimes unavoidable, we must therefore consider cost at all times. And all this in the name of "reliability."


Posted by: federalist | Dec 12, 2011 3:53:13 PM

How odd that anyone would think the question whether government program x (the death penalty or anything else) is "too costly" should be decided by a battle of opinions.

The ONLY group with standing to decide if it's "too costly" is the group that pays for it -- the taxpayers. When they decide it's too costly, out it goes. Until then, the protestations of defense attorneys are just more makeweight to bolster a long pre-established position.

Posted by: Bill Otis | Dec 12, 2011 4:08:44 PM

Rich Mantei wants to stop funding for capital defense attorneys. So do I. Do away with the death penalty, and we can dispense with funding for capital defense attorneys. Until then, unless Mr. Mantei knows some way to circumvent Gideon, funding of capital defense attorneys is constitutionally mandated.

Unsurprisingly, Federalist is content with jurors predicating life vs. death decisions on factual errors/misunderstandings.

Bill Otis thinks taxpayers should decide whether the death penalty stays or goes. (Apparently the decision making process is to exclude non-taxpaying college students, welfare recipients, and other non-taxpaying voters.) Defense attorneys who oppose the death penalty should zip it. There is no need for a battle of opinions. Taxpayers, particularly land-owning taxpayers, should decide the matter, without any debate. Those taxpayers don't need to hear any opinions from others before deciding the matter. Well, maybe it would be OK for them to listen to the opinions of death penalty supporters, because those opinions are right.

Posted by: Calif. Capital Defense Counsel | Dec 12, 2011 7:53:33 PM

"Unsurprisingly, Federalist is content with jurors predicating life vs. death decisions on factual errors/misunderstandings."

Unsurprisingly, CCDC continues his or her obnoxious resort to sophistry. Obviously, you cannot take on the substance of my critique, so you resort to a gross distortion of my argument. Jurors bring into the jury room all sorts of views based on life experiences etc. etc.--that's an unavoidable fact of life in a system which interposes members of a free citizenry between the government and the accused. You, under the guise of counteracting the views of some unknown number of jurors, want to introduce "evidence" that is wholly irrelevant to the moral blameworthiness of the defendant, and you couch that in terms of "reliability". Like I said, pure sophistry in action. And then you have the temerity to grossly distort my commentary. Nice trick. But given your use of quotation marks (in another thread) to describe the "crime" of lying to cops about the whereabouts of a girl of whom you have custody, I am not surprised by your facile intellectual dishonesty.

Posted by: federalist | Dec 12, 2011 9:00:33 PM

Federalist: Be honest with yourself. You like jurors in capital cases to operate under the misperception that LWOP sentences are more costly than death sentences. You like it because it advances your desire for more and more death sentences.

Posted by: Calif. Capital Defense Counsel | Dec 12, 2011 9:59:48 PM

CCDC, who cares? You'll note that my argument on this issue really has been a legal and logical one. Try dealing with it, especially since you made a semi-legal argument earlier--even citing a SCOTUS case. Honestly, if you read what I write around here, you'd see that I am more of a big picture guy--so I don't advocate minor points like this to increase death sentences. I want dates set and executions carried out. And I'd prefer that juries focus on the murders that were committed . . . .

At the end of the day, you'd scream bloody murder if the Supreme Court ever endorsed the idea that prosecutors could make cost arguments in states where death sentences are likely cheaper (I'd say if you took everything into account, it's probably cheaper to give someone a death sentence in Va. than LWOP.) But yet you want cost arguments to be used on the side of life?

Like I said before, you're running with the big dogs, and so far all you've shown is that you belong on the porch. You haven't shown much of an intellect, and your moral compass is seriously off. You punked out on the earlier thread, and here you're left to making the ad hominem argument that I simply want more death sentences. (N.B., an ad hominem argument doesn't have to be name-calling--yours is one.) You gotta up your game, pal. And I don't even do criminal law for a living.

Posted by: federalist | Dec 13, 2011 12:15:41 AM

Wow! It is so intellectually intimidating to be "running" with a self-proclaimed "big dog."

Let me tremble and piddle before I respond.

Facts can be stubborn and frustrating when they don't support your narrative. But, facts are facts. Death penalty sentences are much more expensive than LWOP sentences. I know this is true in California, as I've spent the last 20+ years handling capital and non-capital appeals in California. The article that is the subject of this thread is the latest in a series of studies and articles that confirm this reality. I have little doubt that this phenomenon holds true nationwide; more studies and articles confirm this. See, e.g., NYT article, dated Sept. 29, 2009, entitled High Cost of Death Row.

I'll stay on the porch of reality, and express opinions based on fact. Feel free, if you can't help yourself, to continue barking out ideologically driven opinions premised on fiction.

Since you're big (both a "big dog" and a "big picture guy") can't you bring yourself to address the economic issue here? With many States in dire economic straits, is it worth it for those States to maintain capital punishment schemes? California has only executed a handful of inmates. Yet the State continues to fund its capital punishment system. At the trial level, it pays hundreds of thousands, and sometimes millions, of dollars to prosecutors, defense attorneys, judges, investigators, court personnel, etc., just to get a death verdict. Then, on direct review, hundreds of thousands of dollars are paid to new attorneys, judges, and other court personnel. Then, there is at least one round of state habeas litigation, which typically involves a full-blown investigation concerning issues such as ineffective assistance of trial counsel. Often, there are multiple rounds of state habeas litigation. Then there is federal habeas litigation. In federal habeas proceedings, more new attorneys and more new judges are involved. Capital cases sit for years on the dockets of federal magistrate judges and district judges. Then, it's off to the Ninth Circuit. During federal habeas proceedings, there are often trips back to state court to exhaust unexhausted issues. It goes on and on. The costs mount. Decades pass.

Does it make sense, economically?

Posted by: Calif. Capital Defense Counsel | Dec 13, 2011 1:24:26 AM

CCDC, you need to recognize sarcasm when it's on the page in front of you (here's some more: I don't want to get rid of all defense lawyers, just YOU). But your catalog of the ridiculousness of the capital appellate maze proves my point. At what point did the concept of "beyond a reasonable doubt" fall victim to pretensions of an ability for absolute human certitude?

If it's really all about costs with you (an oversimplified argument) then cutting costs is easy (an oversimplified reaction). If you really are too obtuse to see the parallels there, then my sympathy goes out to your clients.

Posted by: Rich Mantei | Dec 13, 2011 7:35:10 AM

CCDC, your post really isn't responsive. I have not questioned that in California getting to death costs more than LWOP, although I suspect that the marginal cost (which is what matters) isn't $120MM per. So why are you saying that I am dealing in unreality? Now, in Virginia, I suspect that if you did a real accounting, you'd find that the death penalty actually saved money, but I don't make the cost argument in favor of the death penalty, so I am not really interested in the debate. Suffice it to say that the liberal judges and some politicians have done their utmost to thwart the will of the people of the state of California--and I'd gladly pay the $120MM per to fight for democracy. And I have a great idea about costs--let's set some dates. California's LI protocol exceeds constitutional requirements, and Fogel should simply say so.

What I took issue with, and you seem to have slinked away, is your pathetic argument that the caselaw somehow requires jurors to be informed about costs. You resorted to ad hominem and didn't even bother to address the legal argument about germaneness of the cost issue to the moral blameworthiness. So instead of admitting defeat, you try to get me into a debate on costs. Pretty weak. Stay on the porch.

Posted by: federalist | Dec 13, 2011 8:29:07 AM

Federalist, Fogel's no longer on the case.

Posted by: alpino | Dec 13, 2011 10:58:49 AM

Thanks alpino, I stand corrected. Who is on the case?

Posted by: federalist | Dec 13, 2011 11:17:54 AM


Your whole pitch on this thread is the the DP costs too much. It costs a lot, as we all know. But whether it costs "too much" is a value judgment, not a fact. It's too obvious for argument that the only people with standing to make the "too much" judgment are the ones who actually pay the cost.

When you go to pick out an expensive car, the only person who gets to decide if it's TOO expensive is the person who's going to pay for it.

This is so obvious you ought to be able to get it notwithstanding your gushing regard for killers. Try to calm down.

Posted by: Bill Otis | Dec 13, 2011 11:56:55 AM


Your post here: Calif. Capital Defense Counsel | Dec 13, 2011 1:24:26 AM -- presents a persuasive case, not that the DP should be eliminated, but that the litigation and litigating costs surrounding it be scaled way back. You know perfectly well that it does not take all the lawsuits you describe and all the money put into them in order to determine by far the main thing the public and the judicial system is interested in knowing: Do we have the right guy?

Posted by: Bill Otis | Dec 13, 2011 12:06:43 PM

Dear Big Dogs, Big Picture Guys, Drug Warriors, and other assorted members of the Death Penalty Fan Club:

Providing a defense to those convicted of capital murder does not equate to "gushing regard for killers." When John Adams defended Tories in court, did he thereby display "gushing regard" for the Crown?

It is the rare capital case where the guilt of the defendant is at issue. (There may be guilt-phase issues concerning first degree vs. second degree.) The predominant issues in capital cases are issues concerning process and penalty. Mental retardation / intellectual disability issues are very prevalent now in capital litigation, due to SCOTUS's decision in the Atkins case. Batson issues and other issues involving jury selection are quite prevalent. Issues involving jury misconduct and removal of hold-out jurors come up quite frequently. It is very rare for an appellate attorney in a capital case to actually contend his/her client is innocent.

In my opinion, the death penalty costs too much to administer. It costs much more than LWOP sentences. It does not make economic sense to maintain capital punishment schemes. LWOP sentences are sufficient. States cannot afford to maintain absurdly expensive capital sentencing schemes. I'm a taxpayer. I object to my tax dollars being used to fund an arbitrary, bloated, inefficient capital sentencing scheme. (I also object to the immorality of the State carrying out premeditated murder.)

However, if capital sentencing schemes must be maintained, the ultimate decisions should not be made by fact finders who premise their decisions on factual errors, such as the mistaken notion that death is cheaper than life.

Does that make sense to you Large Dogs?

Posted by: Calif. Capital Defense Counsel | Dec 13, 2011 9:28:36 PM

"However, if capital sentencing schemes must be maintained, the ultimate decisions should not be made by fact finders who premise their decisions on factual errors, such as the mistaken notion that death is cheaper than life."

CCDC, I get your argument, as is obvious from my previous posts. And my previous posts have dealt with the argument. You wish to introduce clearly irrelevant information (the cost of getting to death has nothing to do with the blameworthiness of a defendant) to counteract not the evidence that the prosecution has introduced, but ideas that jurors may or may not possess and may or may not let sway them. You can gussy that up all you want with your "jurors should have accurate factual information" blah blah blah, but the bottom line is that you want to introduce irrelevant considerations into the jury box. Not only do I understand what you're saying, I see it for what it is.

So now that I've answered you--how about you admitting you distorted my earlier post and engaged in a lame ad hominem attack?

And by the way, CCDC, calling capital punishment "premeditated murder" is weak too. Murder is, by definition, the unlawful killing of a human being. You may not like executing killers, but it ain't murder. And while we're at it, why don't you examine the morality of someone like Gov. Kitzhaber pulling the rug out from under the legitimate expectation of a victim's widow? You can yap all you want about morality--but at the end of the day, you are elevating the interests of killers over those of victims' families who want justice done. I get the argument that the death penalty is immoral--but you guys have to get the argument that once imposed on a specific killer, particularly when a legitimate execution date is nigh, pulling the rug out from underneath the victim's family has its own moral consequences, and last I checked, usually the person responsible for the predicament (i.e., the killer) should have less of a claim than those who were forced into it (i.e., the victim's family). You abolitionists like to act like youre so morally superior--but you're not, since you don't talk about the morality of undoing settled death sentences.

And when you use terms like "Assorted Members of the Death Penalty Fan Club," you also show your supposed air of intellectual superiority. Well, guess what, pal, you've just had your butt handed to you by a trogolodyte who supports capital punishment. (By the way, I would bring back the death penalty for certain three-strikers, certain rapists, attempted murder and other assorted crimes.)

Posted by: federalist | Dec 13, 2011 10:31:13 PM

Dear CCDC and other druggies and assorted members of the Killers Fan Club --

1. I'm quite happy to be in the "Death Penalty Fan Club," along with George Washington, Abrham Lincoln, FDR, Dwight Eisenhower and Ronald Reagan (and Clinton and Obama too, while we're at it). Are you happy to be in the Humanist Club with John Wayne Gacy and Timmy McVeigh? Do tell!!!

2. "Providing a defense to those convicted of capital murder does not equate to 'gushing regard for killers.' When John Adams defended Tories in court, did he thereby display 'gushing regard' for the Crown?"

John Adams signed his name, not "Massachusetts Patriot". You might try it too, if your confidence in the morality of your position equals his. If it doesn't, believe me, I understand.

3. "It is the rare capital case where the guilt of the defendant is at issue."

Then (a) capital cases shouldn't take anything like as long as they do, (b) you get a star on your chart for telling the truth, even as quite a few of your allies go on yapping about how innocent they all (or large numbers of them) are, and (3) why have you spent so many years trying to assist these people when so many innocent and deserving othes -- like crime victims -- could use your help?

4. "The predominant issues in capital cases are issues concerning process and penalty."

Again, your candor is catching up to you. Most people think that substantive justice is more important than process, especially when process starts to take up the insane amount of time and money it does now. There is nothing wrong (and plenty right) with a REASONABLE degree of process, but what we have now, thanks to your side, is wildly out of hand.

5. "Mental retardation / intellectual disability issues are very prevalent now in capital litigation, due to SCOTUS's decision in the Atkins case."

The real reasons those things have come to predominate capital cases are (1) defense lawyers would rather talk about anything other than what their client actually did, (2) the world is full of shrinks who can be and are bought off to make gauzy, after-the-fact and thoroughly unverifiable claims about how mentally dilapidated the killer was, but actually he's Mr. Nicey On The Inside, notwithstanding his years of abuse from his (conveniently long-deceased) step-father.

6. I see you assiduously stayed away from commenting on the death sentences for the Petit multiple rape/torture/murders. But rather than continuing to hide out on that front, I hope you'll be willing to tell us why the unanimous Connecticut jury was mistaken in ordering death for those unearthly horrible killers. And no, a green eye-shade discussion of cost ain't gonna get it done.

Posted by: Bill Otis | Dec 14, 2011 11:58:15 AM


You don't address the point about John Adams when you say he "signed his name[.]" (Hamilton, Madison, and Jay didn't sign their names to the Federalist Papers. They had their reasons; I have mine.) You presume attorneys who defend capital defendants/appellants have "gushing regard" for killers. You are incorrect. The John Adams example proves your incorrectness. Adams did not have "gushing regard" for the Crown simply because he defended Tories. Instead of addressing the point, you pivot to an inapposite point regarding anonymous authorship.

Assisting crime victims is not my job. I'm a criminal defense attorney. I assist people who are targeted by the biggest and most heavily armed gang in the world, i.e., the United States government. In my state court cases, I assist people targeted by somewhat smaller gangs, i.e., state government entities.

You blame the protracted process in the administration of capital punishment schemes on my "side." Isn't that a little silly? What does my "side" do in this arena? We advance arguments on behalf of our clients. Those arguments are shot down over 90% of the time. When the arguments succeed, it is only because judges (most of whom are former prosecutors) determine that the arguments are correct. If we didn't do everything we can to prevent our clients from encountering the night-night needle, we'd be in dereliction of our duty. The defense bar did not establish the writ of habeas corpus. As you may be aware, that was written into the Constitution by Madison, et al.
If you think individuals who are mentally retarded should be executed, I don't really know what to say, other than that I find you frightening.

I don't know much about the Connecticut case, so I don't know whether I can comment meaningfully on the case. But I will say this --- If a couple scum bags killed my wife or my children, I'd want them to be killed, and I'd like to think that I'd try to do the killing myself. However, in my opinion, that raw emotion does not justify state-sponsored executions. Governments (including the federal and state governments in our country) are pervasively corrupt and incompetent. Government cannot rationally and fairly administer capital punishment.... I won't go on about the immorality and amorality of the death penalty.

Posted by: Calif. Capital Defense Counsel | Dec 14, 2011 6:23:09 PM

CCDC, "night-night needle"--I'll have to remember that one. I like "big jab."

Couple things--you say that government cannot rationally and fairly administer capital punishment? Why? What sort of "fairness" do capital murderers deserve, other than a fair trial and the assorted panoply of post-conviction procedures? And as for rationality? What do you mean by that? A comparison across killers? Getting rid of the lottery (i.e., because you have prosecutors and jurors making decisions based on discretion). It can't be that those things are incompatible with death sentences, since they are deeply interwoven in our criminal procedure and death is a constitutional punishment.

I note that you've given up taking me on. Well, I don't really blame you. You'll mischaracterize what I say, but then duck the issue of the morality of yanking out the rug from underneath victims' families. You'll call capital punishment "murder", but then shy away from a moral debate. And then you'll deem yourself "frightened" by Bill Otis. Weak.

I took on your arguments, chewed them up and spit them out. Glad to see you're back on the porch, where you belong.

Posted by: federalist | Dec 14, 2011 6:35:58 PM


1. I see you provide no reason that I should be ashamed of being in what you call the Death Penalty Fan Club along with Washington and Lincoln, etc., and likewise provide no reason that your opposition to the DP differs in moral quality from the opposition voiced by John Wayne Gacy or Timmy McVeigh.

Fine. You take your allies, I'll take mine.

2. How odd that you should take yourself to be John Adams. I manage to sign my name while you hide yours. You say opaquely that you have your reasons. What are they?

3. You merely beg the question by saying you're a criminal defense attorney. We all knew that. The question is WHY you made that choice, rather than choosing to assist crime victims or other innocent and worthy people. No one forced you to offer your talents to people you concede are almost always factually guilty.

4. You talk about "armed gangs" in apparent and hilarious obliviousness to the fact tha it is YOU, and not I, who works day in and day out on behalf of members of armed gangs -- people who murder to protect drug turf, to eliminate witnesses, or just for the sheer thrill of it. Anyone who has spent years as a California Capital Defense Counsel is certain to have had gang clients. So next time you want to deliver a lecture about assisting armed gangs, deliver it to the mirror.

5. Do you have even a clue how much you reveal your extremism, not to mention your anti-Americanism, by referring to this country as "the most heavily armed gang in the world." Are you channeling the Ayatollah?

6. "What does my 'side' do in this arena?"

Try to put killers back on the street where they can do it again -- as if you'd care if they succeeded, which you don't.

Oh, wait. You don't take any responsibility if your efforts succeed in creating danger to innocent people. Is that it? Is that what we should teach our children? Don't take any responsibility for the results of what you do?

7. "If you think individuals who are mentally retarded should be executed, I don't really know what to say, other than that I find you frightening."

If you think there's some reason I should pay any regard to the personal opinion of me held by someone who (1) hates the country and (2) won't sign his name to what he says, please advise at to what that might be.

8. Anyone who has a strong interest in captial punishment knows all about the Connecticut case, so you're just dodging, or worse, in claiming you don't. But I concede it's a classic abolitionist ploy. They love to talk all about Troy Davis but somehow they just don't know a darn thing about the most publicized -- because most gruesome -- cases.

Do you know why abolitionism is losing public opinion? Hint: When abolitionists won't take on the hard cases, they're conceding they CAN'T. Ducking the hard cases doesn't win beans, not in public debate and not in court.

9. You are correct that government as a general matter has earned a degree of skepticism. But the super due process afforded capital defendants, and the fact that they have years of access to an independent judiciary, allays the misgivings of most reasonable people. As Justice Scalia pointed out in his concurrence in Kansas v. Marsh, there is no established proof the federal government or any state government has executed an innocent person since Gregg.

10. Your concern for executing the mentally retarded would be more compelling if the capital defense bar did not invest so much time and energy trying to fake mental retardation.

Posted by: Bill Otis | Dec 14, 2011 8:34:27 PM

Federalist and Bill Otis ---

You two would probably be death penalty ineligible, under Atkins.

Posted by: Calif. Capital Defense Counsel | Dec 14, 2011 11:23:43 PM


Thanks for the concession that you have no argument. You can go back now to giggling about the handiwork of your clients.

Posted by: Bill Otis | Dec 14, 2011 11:42:36 PM

Once again, CCDC, you simply ignore what I write, and now you resort to name-calling.

I may be ineligible for the death penalty under Atkins--but any fair observers looking at this thread know that you got your clocked cleaned.

Posted by: federalist | Dec 15, 2011 8:23:45 AM

federalist --

What CCDC fails to appreciate is that the reason you and I are death penalty ineligible is that, unlike the folks he so gleefully serves, we haven't killed anyone.

Posted by: Bill Otis | Dec 15, 2011 3:42:00 PM

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