Death Penalty Update

In the last few days, we’ve made a huge effort to circulate a petition to Governor Brown and Attorney General Harris, asking them not to appeal District Court Judge Carney’s decision that the death penalty in California is unconstitutional. We’ve just hit 500 signatures, and I’ve sent the petition to the Governor and the AG. Thank you for your support, signing, and sharing!

What happens next?

Our elected officials decide whether they want to pursue an appeal to the Ninth Circuit.

What if California appeals the decision?

Then, we’ll have to take our chances with the Ninth Circuit. The hope is that we’ll draw a favorable panel, who will affirm Judge Carney’s decision. It’s possible, albeit not very probable. Regardless of the result, a further appeal to the Supreme Court is unlikely to yield a good result for abolitionists.

The best of all worlds would be a decision from the Ninth Circuit affirming the death penalty’s unconstitutionality, and THEN a commitment from the Attorney General that she would not appeal the decision. If that is the case, the decision will apply to all of CA, and would basically mean that the death penalty has been abolished. But for that to happen we have to be lucky twice: the Ninth Circuit has to go our way and the AG has to decide not to appeal that decision. That’s quite a gamble.

What if our elected officials hear our plea and do not appeal the decision?

In that case, we’re left with a great, favorable decision, but by a District Court, which means it doesn’t create immediate effect in all of California. But we also gain an important political advantage: we have a great decision, that became final, AND the political gravitas of the AG’s support for the result. That, then, allows us to consider political pressure on the Governor’s office to commute current capital sentences, which do not conform to constitutional standards, as well as a valuable weapon against various proposals to “fix” the death penalty.

What are the odds that there will be an appeal?

Hard to tell. As you may recall, last time the State did not defend its laws in federal court was in the context of Prop 8, and the initiators of the proposition were ruled by the Supreme Court not to have standing. What this means is that if the AG does not want to defend CA’s death penalty, no one else can do so in her stead.

There is, however, a difference: Prop 8 was a voter initiative, and so the AG could more easily disengage from it by not appealing. Even though the AG is, personally, an opponent of the death penalty, she may think that solid administrative principles require seeing this thing to its end. And maybe she, too, is hoping that if she appeals the decision, the Ninth Circuit will rise to the occasion and decide the case for abolition.

In other words, your guess is as good as mine.

What can we do now?

Keep talking about this with friends of all political persuasions. Talk about the botched execution in Arizona; talk about the immense toll that incarcerating these folks and tending to their litigation effort is taking on the CA budget (to the tune of $150 million annually.) Talk about how we can see abolition in our lifetime, if we run with this ruling and make the most of this opportunity to drag our penal system to the 21st century.

Jerry, Cut This

Just a few days ago we reported on Governor Brown’s decision not to build the new death row, commenting that abolition would save even more. Today, Death Penalty Focus is circulating a cost-centered petition to Governor Brown to abolish the death penalty.

Please read and sign. This is our chance to take this crisis and galvanize it into something positive.

Event: Day of Action to End the Death Penalty

Death Penalty Focus is organizing a Day of Action to end the death penalty on June 30, 2009. The date is scheduled to coincide with the public hearing regarding the reformed execution proceedings using lethal injection, which we reported about here.

In keeping with the financial crisis and humonetarianism themes, here’s the ACLU of Northern California report on the costs of the death penalty and the potential savings that might result from its abolition, which we discussed here, here and here.

Humonetarianism: Death Penalty Edition

John Van de Kamp, former California AG, says we can’t afford the death penalty: 

According to the final report of the California Commission on the Fair Administration of Justice, which I chaired from 2006 to 2008, the cost of a murder trial goes up by about half a million dollars if prosecutors seek the death penalty. Confinement on death row (with all the attendant security requirements) adds $90,000 per inmate per year to the normal cost of incarceration. Appeals and habeas corpus proceedings add tens of thousands more. In all, it costs $125 million a year more to prosecute and defend death penalty cases and to keep inmates on death row than it would simply to put all those people in prison for life without parole. 

Van de Kamp advocates eliminating the death penalty and commuting all death sentences in California to sentences of life without parole. 

Doing so would incapacitate some of the worst of the worst for their natural lives, and at the same time ensure that a person wrongfully convicted will not be executed. And it would save $125 million each year.

Getting rid of the death penalty would undoubtedly be a great thing for the administration of justice in California, but Life Without Parole does have its own implications. To name a few: what about all the pending appeals and habeas proceedings? How would the Corrections Department transition all those folks from death row? Would the debate over “how much” due process we think we can afford change without the morally-fraught death penalty to galvanize it? 

Reformers are taking advantage of the suddenly inflated salience of cost to the public to push for policies that were total non-starters just a year ago, but the dark side of this strategy is that there is also no willingness to implement these policies in a thoughtful, rather than merely a cost-avoidant, way. How much deeper a hole will we be in a year from now if all our decisions are made with an eye on short-term costs? 

Is the Death Penalty Too Expensive?


(image courtesy NYT.com)

The New York Times reports on a trend we’ve already seen here a couple of times: penal reform and punitive measures being abandoned not on their merits, but because of their costs. The article is not California-specific; the picture you see is from Virginia, and the data in the piece come from Maryland.

Nevertheless, the point is an interesting one: whatever the public thinks about the death penalty, it’s expensive, and several states are abandoning it in light of the costs.

Death penalty opponents say they still face an uphill battle, but they are pleased to have allies raising the economic argument.

Efforts to repeal the death penalty are part of a broader trend in which states are trying to cut the costs of being tough on crime. Virginia and at least four other states, for example, are considering releasing nonviolent offenders early to reduce costs.

What about the CA costs? The California Commission for the Fair Administration of Justice provides some data. The report offers abundant information on other aspects of death penalty administration, pointing primarily to long delays in carrying sentences and to inadequate representation. However, if the fiscal argument is the one that might win the day, the bottom line is as follows:

The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate. With California’s current death row population of 670, that accounts for $63.3 million annually.

The report makes a variety of suggestions regarding reforms in death penalty administration, including guarantees for adequate representation. Those in themselves might be quite costly, and the public might be as reluctant to implement them as the legislators were when they killed the planned expansion to the San Quentin Death Row just a little while ago. One wonders how the new trend in other states may play out in California, or at least in counties in which the prosecution actually seeks the death penalty.