The Expensive, Arbitrary and Inefficient State of the Death Penalty in California

Before the California Commission on the Fair Administration of Justice (CCFAJ), then California Chief Justice Ronald George testified that “California’s death penalty system is dysfunctional.” A review of year-end statistics certainly confirms the former Chief Justice’s conclusion.

While the death penalty appears to be waning across the country, California remains somewhat of an outlier. In 2010, California courts sentenced 34 persons to death, which accounted for nearly a third of of the death judgments nationwide. And within the state, Los Angeles County, Riverside County and Orange County have become, as the ACLU put it, “killer counties.” They accounted for 83% of the death sentences in 2009, while representing 41% of the population. That year, Los Angeles County sentenced more people to death than any other state, much less any other California county. Of the 34 death cases, almost 62% were from these three counties.


Thus, while one would like to believe that the justice system reserves death sentences for the “worst of the worst” murderers, one of the many arbitrary factors determining who gets the death penalty is geography. Another is race. The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, 46 Santa Clara L. Rev. 1 (2005), analyzed the imposition of the death penalty in the 1990s. The study confirmed that the race of the victim and geography were key factors in determining who received the death penalty in California.

The competence of trial counsel is another factor. The CCFAJ noted that most capital cases reversed in federal court were due to the ineffective assistance of counsel, and that “the appointment and performance of qualified counsel . . . is a subject of serious concern to the administration of California’s death penalty law. As Stephen Bright of theSouthern Center for Human Rights said years ago, the death sentence is often given to the cases with the worst lawyer not the worst crime.

Appellate court review is designed to be a critical safeguard in ensuring against the arbitrariness of the system. This is reflected in California Penal Code section 1239(b), which requires that death judgments imposed in the superior courts be automatically appealed to the California Supreme Court. Unfortunately, the state high court has become a little more than a rubber stamp for death sentences. In 2010, it decided 24 automatic appeals and affirmed each and every one. Habeas proceedings are an additional avenue for criminal defendants, which, unlike direct appeals, can raise facts from outside the trial record—not that it matters in California. The Supreme Court denied 23 capital habeas corpus petitions, 22 summarily without ordering a hearing or issuing an opinion, and granted relief in none. (In 2009, the court affirmed 24 of the 25 capital appeals, and denied all 33 capital habeas petitions on which it ruled). Since 1997, the California Supreme Court has affirmed 90% of the death sentences it has reviewed, a higher rates than any other state in the country.

The court’s refusal to reverse death sentences is not a product of error-less trials. A Columbia University study, A Broken System, published in 2000, found that between 1973 and 1995, 80% of California death judgments were reversed in federal court, and 33% were reversed by the California Supreme Court. Nationwide, the overall rate of prejudicial error was 68% over this period of time. It is simply not conceivable that all of a sudden California death penalty trials have miraculously become error free.

As the Columbia study reflects, federal courts are often a more receptive forum for capital defendants after their cases have been rejected in state court. But a federal law ostensibly aimed at speeding up the process has circumscribed the ability of federal judges to reverse state court rulings. Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), federal judges may no longer engage in de novo review, i.e., making their own determination as to whether errors in state trials warrant relief. It is no longer sufficient for a federal court to find a reversible error in the trial, no matter how egregious. To reverse a conviction or sentence, a federal court must also find that the state appellate court’s resolution of the claim was unreasonable as well as erroneous. This deference to state court decisions presupposes that state appellate courts carefully and meaningfully review lower trial court decisions. However, as noted above, not all state appellate courts have demonstrated such diligence, particularly in California.

Not only is justice arbitrary and unfair in California death penalty cases, it is exceedingly slow. As the CCFAJ found, “[t]he lapse of time from sentence of death to execution averages over two decades in California.” The current death row population is 717 and growing. There were 34 new death judgments last year, as stated above, but the California Supreme Court is not keeping up, having decided only 24. Furthermore, about 85 defendants on death row do not have counsel appointed to handle their appeals, and roughly 320 inmates do not have state habeas counsel. Inmates on death row have to wait about five years to get an appellate lawyer, and closer to 10 to get habeas counsel.

Finally, California spends close to $150 million dollars a year to maintain the death penalty in the state. The ACLU of Northern California reports that “if everyone currently sentenced to execution were sentenced to permanent imprisonment instead, California taxpayers would save $1 billion in five years.”

Rather than perpetuating this expensive, arbitrary and inefficient state program, wouldn’t we be better off replacing the death penalty with life sentences, and focusing on crime prevention, crime solving and assistance to crime victims? Just do the math.




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