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Research Finds Capital Punishment System in California is Costly, Ineffectual

A June 2011 law review article by Ninth Circuit Court of Appeals Senior Judge Arthur L. Alarcón and Loyola Law School Professor Paula M. Mitchell, Alarcón’s longtime law clerk, analyzes the costs to taxpayers of administering California’s capital punishment system, the misrepresentations repeatedly made to voters regarding those costs and the largely ineffectual nature of a system that exists more in theory than in practice.

Since reinstating capital punishment in 1978, California has carried out 13 executions – at a cost of approximately $4 billion. During that same period of time, 54 condemned prisoners have died of natural causes and 18 by suicide; another six died due to violent incidents or undetermined causes.

As of June 2011 there were 714 prisoners on California’s death row, and that population is expected to grow to over 1,000 by 2030. The cost of maintaining the current population of condemned prisoners adds around $184 million to the state budget each year. Those costs will only increase if the system is not changed, according to Alarcón and Mitchell in their Loyola of Los Angeles Law Review article, titled “Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature’s Multi-Billion-Dollar Death Penalty Debacle.”

Since 1978, California voters have supported six ballot measures to expand the types of crimes eligible for the death penalty; each time, voters were informed that the fiscal impact of such measures were “none,” “unknown,” “indeterminable” or “minor.” In their 184-page article, Alarcón and Mitchell suggest that, to the extent voters in the state were misled, a court could find that the measures expanding the death penalty statute (which now includes 39 “special circumstances”) were unconstitutional.

Currently, the average time span between conviction and execution is more than 25 years. Further, as a result of legal challenges to the state’s lethal injection process, no executions have been carried out since 2006 and none are likely to occur in the near future. Indeed, on April 18, 2012, a state Senate committee rejected a bill (SB 15-14) that would have streamlined death penalty cases by eliminating “automatic” appeals.

Much of the reason for the slow pace of executions lies in the fact that it takes a long time to assign qualified lawyers to handle appeals in capital cases. This in itself is a source of some controversy. While past studies have found a shortage of death penalty-qualified attorneys in the state, capital punishment advocates argue that, with California’s bar membership exceeding 230,000, the dearth of attorneys qualified to represent death row prisoners is deliberate.

According to Kent Scheidegger, director of the Criminal Justice Legal Foundation, a conservative think-tank that advocates for reduced rights for people accused or convicted of crimes, “[c]hoking off the appeals is part of the strategy” for those who oppose capital punishment.

Michael Millman, executive director of the California Appellate Project, sees things differently. According to Millman, working on death penalty cases is discouraging, difficult and time-consuming, and the compensation inadequate; as a consequence, fewer than 100 attorneys in the state are qualified (and willing) to handle such cases.

Meanwhile, public opinion polls suggest that support for the death penalty may be waning, with more voters now favoring life-without-parole sentences. In fact, between January and August 2011, California juries imposed death sentences in only four cases, significantly down from the high of 3.5 such sentences, on average, that were imposed every month in 1999.

Voters will have an opportunity to determine the future of the death penalty in California in November 2012 when they consider a ballot initiative that proposes to abolish capital punishment in the state. The initiative, titled The SAFE California Act, would replace the death penalty with sentences of life without parole.

“I have seen the death penalty from all points of view. I understand the cost of incarceration for people on death row, which is far more expensive than if they had life without possibility of parole,” stated Jeanne Woodford, executive director of Death Penalty Focus and a former warden at San Quentin. “Our initiative seeks to utilize our criminal justice dollars in a much more effective way and it sets aside $100 million over three years for the particular purpose of solving unsolved murders and rapes.”

Other death penalty opponents, however, are also opposed to life-without-parole sentences, which they term “the other death penalty” – e.g., death by incarceration.

Sources: Los Angeles Times, The Daily Recorder,,

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