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California’s Broken Death Penalty System

While California taxpayers have spent over $4 billion on capital punishment since it was reinstated in 1978, more than 900 prisoners have been sentenced to death but only 13 have been executed – an average cost of around $308 million per execution. With 747 prisoners sitting on death row as of May 12, 2016, a detailed report on the wasteful spending for capital punishment has prompted renewed discussions as to whether killing killers is worth the trouble or the expense.

A three-year study authored by Judge Arthur L. Alarcon with the U.S. Court of Appeals for the Ninth Circuit and Loyola Law School professor Paula M. Mitchell found that the long process for executions “reflects a wholesale failure to fund the efficient, effective capital punishment system that California voters were told they were choosing” in a series of voter initiatives over the past three decades that expanded the death penalty to include 39 “special circumstances” categories of murder.

In “Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature’s Multi-Billion Dollar Death Penalty Debacle,” Judge Alarcon and Professor Mitchell wrote that unless “profound” changes are made by lawmakers who have ignored earlier recommendations for reforming the state’s death penalty system, capital punishment will exist only in theory as the cost to taxpayers continues to escalate.

With unique access to California Department of Corrections and Rehabilitation (CDCR) records, Judge Alarcon and Professor Mitchell found that the death penalty adds at least $184 million to the state’s budget every year. By 2030, the total cost of capital punishment will soar to about $9 billion, with a forecasted 1,000 prisoners on death row.

Presently, prisoners sentenced to death in California are far more likely to die of natural causes than by lethal injection, the report found. The appeals process now takes ten years or more, and there have been no executions in California since 2006 due to legal challenges. Another contributing factor is funding cuts to the state’s public defender system, which have caused years of delays in virtually every capital case. By failing to fund adequate representation, the legislature has saddled the state Supreme Court “with the responsibility of trying to talk lawyers into representing people on death row,” Alarcon stated.

Michael Millman, executive director of the California Appellate Project, said that more than 300 death row prisoners are waiting to have attorneys appointed to represent them on state appeals and federal habeas corpus petitions. He observed there are fewer than 100 attorneys in the state qualified for capital cases because the work is dispiriting and demanding, and the pay is inadequate.

Alarcon and Mitchell also noted in their report that federal judges find errors in around 70% of California death row convictions and send them back to the trial courts for further proceedings, leaving the state open to due process challenges.

With a death penalty prosecution costing 20 times that of a life-without-parole case, the authors offered three options to fix the state’s broken capital punishment system: add $85 million in annual funding for courts and more attorneys; reduce the number of death-eligible crimes for a savings of $55 million a year; or simply abolish capital punishment and save taxpayers about $1 billion every five or six years.

On November 12, 2015, the Ninth Circuit Court of Appeals reversed a federal judge’s ruling that deemed California’s death penalty “unconstitutional.” See: Jones v. Davis, 806 F.3d 538 (9th Cir. 2015). Although the appellate court’s decision technically allowed the resumption of executions, an ongoing legal battle over proposed reforms to the lethal injection protocol has extended the delay in putting prisoners to death. This has granted death row prisoners some borrowed time to continue appealing their sentences.

Meanwhile, despite the concerns of five federal circuit judges, California may be trying to execute an innocent man. Kevin Cooper, 57, who has been on death row for over 33 years, has always maintained his innocence in the 1983 Chino murders for which he was convicted. The sole witness initially testified the murders were committed by three white or Latino men, and reportedly stated Cooper (who is black) was not among the perpetrators. Ninth Circuit Judge Barry G. Silverman wrote in a 2004 ruling that Cooper is “either guilty as sin or he was framed by the police.”

The state courts and former Governor Arnold Schwarzenegger rejected all of Cooper’s appeals; as a last recourse, he filed a clemency petition with Governor Jerry Brown on February 17, 2016. In a letter in support of his petition, the American Bar Association wrote that Cooper’s “arrest, prosecution and conviction are marred by evidence of racial bias, police misconduct, evidence tampering, suppression of exculpatory information, lack of quality defense counsel and a hamstrung court system.”

Earlier this year, The Constitution Project, a Washington, D.C.-based organization, announced the creation of Public Safety Officials on the Death Penalty, a project consisting of law enforcement officers, prosecutors and corrections officials with a background in capital punishment cases who are “strongly concerned about the fairness and efficacy of the death penalty in America.” While the group does not take a formal stand on whether capital punishment should be abolished, it offers expertise and advice to states debating the future of their death penalty systems.

California might want to take them up on that offer.

Sources: Los Angeles Times,,,,,,,

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