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September 16, 2016

"What crimes warrant the death penalty? Depends on the prosecutor"

The title of this post is the headline of this new Los Angeles Times editorial, which gets started this way:

If the government is going to impose a punishment as medieval and irreversible as the death penalty, it should take pains to ensure that the penalty is invoked only for the most heinous crimes and that it is applied fairly and consistently.  Data compiled by the state attorney general’s office, however, suggest that California is falling short of those ideals because of the individual judgments of local prosecutors.

To be eligible for a death sentence in this state, a person must be convicted of first-degree murder enhanced by any one of about three dozen special circumstances — more than just about any other state (if California wants to reduce death sentences, it could start by reassessing these threshold crimes). There’s murder for hire.  Murder to silence a witness.  Killing a police officer.  Wrecking a train.  Using poison.  Murder, even, when killing wasn’t the intent but occurred during the commission of any of a dozen other crimes.  And on and on.

Who decides whether a murder case involves one of those special circumstances, and thus warrants the death penalty?  A jury, followed by the trial judge’s affirmation (a judge can reduce a death sentence, but not order one if the jury didn’t recommend it).  A jury, though, doesn’t consider a death sentence unless a prosecutor asks it to. And that’s one of the places where capital punishment is inherently inconsistent.  National studies have found that whether someone faces a death sentence depends significantly on the county in which the crime is committed because county-level prosecutors are the ones who decide whether to put the death penalty in play.  In fact, 2% of counties nationwide account for a majority of death sentences.

How inconsistent is application of the death penalty?  From 2011 to 2015, California juries handed down 74 death sentences, more than half from Los Angeles and Riverside counties, with 23 each.  Yet Riverside County is only one-quarter the size of Los Angeles County and had fewer than one-sixth of the homicides during that same time. Is the nature of homicide in Riverside that much more heinous than in Los Angeles County?  No.  The difference between the two counties lies in the makeup of the prosecutorial teams deciding whether to seek the death penalty, with the standard set by the elected district attorney.

Tellingly, there was a change in the Riverside district attorney’s office in January 2015, and the current top prosecutor, Mike Hestrin, has been less aggressive in pursuing the death penalty than his predecessor, Paul E. Zellerbach, who himself sought it less often than the D.A. he replaced.  Further evidence that individual prosecutors make a difference: Hestrin inherited 22 capital cases and, after reviewing them, dropped the death penalty against seven defendants.  So two different district attorneys, looking at the same seven cases, came to different conclusions on whether the crimes merited a death sentence.

Hestrin and others argue that county district attorneys represent the views of their constituents, which explains why liberal San Francisco County tends not to seek the death penalty and more conservative Riverside County does (of the 747 people on death row, one is a San Francisco County case compared with 89 from Riverside).  Yet that is one of the many grave flaws of capital punishment in general, and in California specifically.  Capital punishment is authorized only by state law, but there is no objective statewide standard against which factors are weighed and a decision is made.  It is unconscionable that the specifics of a crime are subordinate to a prosecutor’s whim in determining whether a death sentence will be sought.

September 16, 2016 at 12:49 PM | Permalink

Comments

"It is unconscionable that the specifics of a crime are subordinate to a prosecutor’s whim in determining whether a death sentence will be sought."

What is unconscionable is that the LA Times describes the process that goes into deciding to seek death as a whim. They know those offices have a process for evaluation of the decision which usually involves screening by senior prosecutors and some entertain any arguments the defense wishes to provide. In my county the process is publicly available for anyone who wishes to read it.

If geographic disparity were really such a travesty, then perhaps we should find a way to force San Francisco to seek it as often as Riverside. Somehow I doubt the LA Times would find that palatable. I suspect then they might rediscover the virtues of democracy and regional criminal justice policies.

Posted by: David | Sep 17, 2016 4:41:44 AM

It is a "whim" because in practice it has been shown that within the death eligibles local prosecutors have significant discretion in bringing capital cases. Reading the op-ed as a whole, I do not get the idea it is saying prosecutors just willy-nilly do things here. I would not focus that much on one word there. The overall point holds.

The op-ed argues that Riverside would seem to be less likely than LA to have death sentences given size, number of homicides and heinousness of them. How that applies seems to turn on what prosecutor is in charge.

Geographic disparity isn't the only factor involved when applying the death penalty, so the "solution" of evening things out by making LA have more death penalty prosecutions is as simplistic as simply doing the reverse. The op-ed clearly makes its sentiments known early on by how it labels the death penalty, so probably favors a strict standard that will favor the policies of the majority of the counties that don't hand down death penalties (the 2% reference). Anyway, it states a "objective statewide standard."

What that entails will depend on the details. Since the Constitution favors local juries and traditionally was applied to allow local prosecutorial control, among other things, it seems appropriate to me personally that there should be some local discretion here. So, even though I'm against the death penalty, I think the matter is complicated.

Posted by: Joe | Sep 17, 2016 11:53:45 AM

The thing is there is an objective standard. State law defines who is eligible for the death penalty and who, among those eligible, should get it.

The problem is that, at the first stage of the process, somebody has to decide whether there is "enough" evidence supporting the imposition of the death penalty that a jury will find that this particular defendant should get the death penalty, just as somebody has to decide whether a jury will find a particular defendant guilty of rape or assault or burglary (as opposed to some lesser offense or nothing at all). Additionally, at some interim stage, somebody has to decide whether that evidence is strong enough to justify continuing to pursue the death penalty or whether the odds of getting the death penalty are so slim that allowing the defendant to plead to something less than death is the best course of action.

The secondary problem is that -- regardless of when the decision is made -- the only way to really measure the strength of the evidence is by trial. So we have a good idea in the counties that "overseek" the death penalty whether there evaluation of the evidence is correct; but we really don't have any idea about the counties that "underseek" the death penalty. Maybe, the cases in San Francisco county have some strong mitigating fact or maybe the prosecutors in that county understand that it will be difficult if not impossible for them to get a jury that would actually follow the law on the death penalty.

All crime and punishment has some inherent inconsistency based on the location of the offense. In my state, the most studies of sentences received for crime found that one of the significant factors in sentencing disparity for all offenses was the court in which the defendant received his/her sentence -- a factor that when included eliminated any racial disparity in sentencing.

Posted by: tmm | Sep 17, 2016 4:51:30 PM

The thing is there is an objective standard. State law defines who is eligible for the death penalty and who, among those eligible, should get it.

The problem is that, at the first stage of the process, somebody has to decide whether there is "enough" evidence supporting the imposition of the death penalty that a jury will find that this particular defendant should get the death penalty, just as somebody has to decide whether a jury will find a particular defendant guilty of rape or assault or burglary (as opposed to some lesser offense or nothing at all). Additionally, at some interim stage, somebody has to decide whether that evidence is strong enough to justify continuing to pursue the death penalty or whether the odds of getting the death penalty are so slim that allowing the defendant to plead to something less than death is the best course of action.

The secondary problem is that -- regardless of when the decision is made -- the only way to really measure the strength of the evidence is by trial. So we have a good idea in the counties that "overseek" the death penalty whether there evaluation of the evidence is correct; but we really don't have any idea about the counties that "underseek" the death penalty. Maybe, the cases in San Francisco county have some strong mitigating fact or maybe the prosecutors in that county understand that it will be difficult if not impossible for them to get a jury that would actually follow the law on the death penalty.

All crime and punishment has some inherent inconsistency based on the location of the offense. In my state, the most studies of sentences received for crime found that one of the significant factors in sentencing disparity for all offenses was the court in which the defendant received his/her sentence -- a factor that when included eliminated any racial disparity in sentencing.

Posted by: tmm | Sep 17, 2016 4:51:31 PM

Would the editorial board want a Guidline-stye system for capital cases, with death being more or less the mandatory minimum in some cases? If we are going to allow the sentencer, or the prosecutor, the discretion to show mercy then results are going to depend on the identity of the person who makes the decision and how inclined towards mercy they are.

Posted by: Jr | Sep 18, 2016 6:58:20 AM

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