By Ramona Ripston, Executive Director, ACLU of Southern California
The California Supreme Court has just 'sentenced' our state's taxpayers to an additional debt of at least $180,000 more per year. How? The state's high court upheld the death penalty in two cases.
Imposing the death penalty adds enormously to the cost of prosecution and permanent lifetime housing for an inmate. The death penalty is certainly a polarizing public policy issue, but I wonder how many people realize that it's also a vortex-like drain on their own pocketbooks.
Back in March, New Mexico abolished the death penalty. The words that Gov. Richardson used then still resonate:
"I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime," Richardson said. "If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong." (NM Independent 3/18/09)
And ultimately, that is the question with the death penalty. Do we trust our criminal justice system enough to give it the ability to kill? Is it really worth it to kill an innocent man or two for the retribution against those who are guilty?
These are, of course, moral decisions. The irony of it is that many of those are so concerned with a "culture of life" are those who are the biggest supporters of the death penalty. I suppose it is easier if you see the issue as black and white. Good and evil. These are just bad people we are putting to death. But all too frequently, they are innoncent people. For example, see the Texas case of Todd Willingham profiled recently in the New Yorker and on Nightline. Just watch this video, and tell me whether you would trust this prosecutor (now judge) to be involved in such a decision.
What good does an apology do to a man you have now killed?
In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez's approach seemed to deny "rational reasoning" and was more "characteristic of mystics or psychics." What's more, Beyler determined that the investigation violated, as he put it to me, "not only the standards of today but even of the time period." The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the "execution of a legally and factually innocent person." ([New Yorker 9/17/09 In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez's approach seemed to deny "rational reasoning" and was more "characteristic of mystics or psychics." What's more, Beyler determined that the investigation violated, as he put it to me, "not only the standards of today but even of the time period." The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the "execution of a legally and factually innocent person."])
Beyond the risk of executing an innocent person, there is also the fact that the death penalty does not actually reduce the rate of murders in the jurisdictions that have them. Since 1990, the murder rate has been consistently lower in states that do not have the death penalty. In this decade, it's hovering over 40% percent lower. Violence begets only more violence, not peace.
Once you tear away the deterrence rationale, the death penalty is exposed as merely an act of retribution. An act of violence that has no place in modern society.
The argument against the death penalty extends beyond the sheer morals of it. But California has had a moratorium on the death penalty process for years, you say? Well, that is absolutely correct. But, still the process of sentencing people to death continues. And it will not be so long until we once again see executions. It is only a matter of time. And as we wait, we spend money that could be going to educating at-risk youth, or providing educational training, or even something as silly as higher education. We are spending money on the death penalty almost in an effort to spite ourselves, and we are succeeding in cutting off our nose.
The argument goes, like everything in California, back to the budget. Former Attorney General, and LA District Attorney, also more recently served on the California Commission on the Fair Administration of Justice. He came away from the experience more convinced than ever that the death penalty must go. And, he said so in the LA Times in June, citing the budget crisis:
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.
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It's time to convert the sentences of those now on death row to 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.
A courageous governor facing an unprecedented budget crisis would take this step and use the taxpayer money saved to preserve some of the vital services now on the chopping block. (LA Times 9/30/09)
Every year, we spend money that we could be using to actually prevent crimes on the death penalty, with nothing to actually show for it. How much longer before we come to our senses and simply end the death penalty?
Today, for the first time ever, Californians will have the chance to weigh in on the state’s broken death penalty system. Victims, clergy, legal experts, wrongfully convicted individuals and concerned taxpayers from around the state will converge on Sacramento for a public hearing of the Department of Corrections and Rehabilitation, to give their comments on new regulations for lethal injections.
The hearing comes after three years of legal challenges and three years without executions in California. If the rules are adopted and more pending legal challenges are resolved quickly, executions could resume as soon as 2010. But only four people have exhausted all of their appeals and would even be eligible for execution. Meanwhile in the last three years, 16 people on death row have died of natural causes or suicide. California has only managed to carry out 13 executions since the death penalty was reinstated in 1977.
Yet despite having no official method of execution for the last three years, California has wasted hundreds of millions of dollars on the death penalty system, and stands poised to waste another $1 billion over the next five years. So after voicing their opinion on executions today, concerned taxpayers will also have their chance to voice their opinion on wasteful spending, calling on the Governor to end the death penalty altogether and save the state millions.
Those who support Progressive causes are in an odd position these days: we're often in the majority on issues that matter; and we're seriously talking about how to turn what, just a few years ago, was a wish list...into a "reality list".
Staying in the majority, however, requires the assistance of centrist voters--and that means, from time to time, finding philosophical compromise with voters we'd like to keep "in the fold".
In years past, the issue of the death penalty has created a considerable chasm between Progressives and centrists; with the one side concerned about the misapplication of capital punishment, and the other convinced that, for the most heinous of crimes, the only way to achieve a truly just outcome is for the guilty party to face the most severe of punishments.
What if we could bridge that gap?
In today's discussion we propose to do exactly that: to create a death penalty process that only executes those who are truly guilty and excludes those who might not deserve to be put to death...in fact, those who might not be guilty of any crime at all.
In the market for a prime piece of real estate? Governor Schwarzenegger has the deal for you! Facing a $21.3 Billion budget deficit in California, Schwarzenegger has offered to sell state-owned property to make up the difference. The crown jewel of the proposed fire sale is San Quentin State Prison, home to California’s death row and beautifully situated in the San Francisco Bay.
But before he can flip San Quentin for a profit, Gov. Schwarzenegger will have to figure out what to do with the 680 condemned inmates who currently call it home. Fortunately, there is a solution. The best way to solve California’s budget woes would be to do away with the death penalty all together. By eliminating the death penalty, the state will save $1 billion in five years. And that’s not even counting the profit from selling San Quentin.
California currently has the largest death row in the country and spends more than any other state on the death penalty. In the next five years, California can save $1 billion by getting rid of the death penalty. Here’s how:
Save $125 million per year by cutting extra costs of the death penalty—costs not incurred through permanent imprisonment. According to the California Commission on the Fair Administration of Justice, the annual cost of California’s death penalty to the state is $137 million. If the worst offenders were condemned to permanent imprisonment instead, the cost would be only $11 million and California would not be any less safe.
Save $400 million in construction of a new housing facility for death row inmates. According to the State Auditor, this is how much it will cost to build a new facility at San Quentin, needed because the current facility is filled past capacity. And this is the state’s cost saving measure; building at any other site will be even more expensive.
Keep in mind that any attempt to “speed up” the death penalty will cost even more. The California Commission concluded that in order to reduce the time needed to review death penalty cases, the state would need to spend an additional $100 million each year.
These figures don’t even take into consideration the windfall profits from selling off San Quentin, if anyone even wants it. But before death row can go on the market, Gov. Schwarzenegger will have to come up with an effective alternative for the inmates already living there. Luckily, California has such an alternative already in place—permanent imprisonment—which is just as safe as and so much less expensive than capital punishment. The money saved can be used to provide victims’ services or other crime prevention measures. And there would still be money left to help dig California out of this economic hole.
Right now, Gov. Schwarzenegger can convert all of the current death sentences to sentences of permanent imprisonment, ensuring these inmates are kept off the streets forever and die in prison. Every guilty person sentenced to permanent imprisonment in California stays in prison until he or she dies, and it costs $175,000 less per inmate per year than a sentence of death by execution.
Before selling San Quentin, the Legislature will also need to temporarily suspend any new death sentences until the state recovers from the current fiscal crisis so we don’t recreate the current problem. As an added bonus, suspending new death penalty trials would also save county budgets, which are in no better condition than the state budget. Each death penalty trial costs the local counties at least $1.1 million more than a trial where the district attorney seeks a sentence of permanent imprisonment. California currently averages about 20 new death sentences a year, so stopping death penalty trials could save counties an additional $100 million in five years.
Of the many proposals Gov. Schwarzenegger has put before the voters and the legislature to rescue the state from financial meltdown—all of which have failed—none are quite as simple or reasonable as suspending the death penalty and saving $1 billion in five years. Since the Governor is now into real estate, he should know a “money pit” when he sees it. The longer he waits, the more money he wastes.
As Robert dug into yesterday, the state death penalty system is buckling under its own weight. The fundamental problem, when the 117-page report is boiled down (perhaps overly so), is a fundamental lack of resources- time, human, and monetary- to handle the case load. So I took a bit more notice today when Morgan Crinklaw could barely keep his seat blasting the notion (aka reality) that, as Assembly Budget Committee Chair Noreen Evans put it "We don't have a spending problem. We have a revenue problem."
See, here's the problem for state Republicans now. They only really have two issues anymore: Slashing the budget at every turn and being tough on crime. But now they're stuck, because they find themselves without the money to be tough on crime. Do they start the push for increased funding and investment for tough-on-crime programs and making the death penalty system work faster and tougher? If so, how are they going to generate the money without...you know...addressing a revenue problem that they deny? Do they let the death penalty system fall apart completely? How do you scare voters in to line without promising to bring swift vengeance against the threats to status-quo living?
The Republicans who are manning the budgetary blockade in Sacramento can maybe get away with attempting cuts in areas like education and health care because they never really ran on those issues in the first place- they have no particular political allegiance to improving or protecting those areas. But if they can't even afford to be tough on crime, well...
This should come as no surprise to Calitics readers, who have been treated to a steady diet of articles on the flaws with our prison system. In a system with too many prisoners and too few funds to properly accommodate them and their legal processes, those combined factors mean that the death penalty system is on the verge of collapse, according to a state commission report released today:
The commission did not advocate abolishing the death penalty but did note that California could save $100 million a year if the state replaced the punishment with sentences of life in prison without possibility of parole. Death row prisoners cost more to confine, are granted more resources for appeals, have more expensive trials and usually die in prison anyway, the commission said in its 117-page report....
Among the panel's findings:
* Seventy-nine death row inmates have not obtained lawyers to handle their first appeals, which are by law automatic, and 291 inmates lack lawyers to bring constitutional challenges based on facts that the trial courts did not hear. It takes inmates an average of 12 years to obtain a state high court ruling on their first appeals.
* The California Supreme Court has such a backlog that only one appeal from a conviction after 1997 has been resolved.
* California does not meet the federal standard for paying private lawyers to handle death cases, and the state's method of paying these attorneys -- sometimes with flat-fee contracts -- violates American Bar Assn. standards.
The problems facing the state's administration of the death penalty stem from the same causes as the broader prisons crisis. California voters and politicians embraced "tough on crime" policies in the 1970s, 1980s and 1990s but neglected to properly fund the system, which has grown like a cancer on our budget. It's never difficult for politicians to propose new crimes or higher sentences, but these same legislators - like the Runners - also work to cut the state's taxing ability, putting California on a collision course with both the federal courts and common sense. Either we fund the system properly, or pursue saner correctional policies.
Considering California's fiscal crisis, spending all of this money is not only unlikely, it's impossible....
Few people realize that condemning someone to permanent imprisonment costs California taxpayers millions of dollars less than sentencing him or her to death. We have had the option of permanent imprisonment for as long as we have had the death penalty, and it's proven itself to be a more functional system that serves as a severe, but cost effective, punishment.
Which brings us to our third option, according to the Commission: replace the death penalty with permanent imprisonment until death, and save millions of dollars for public safety programs that actually work to punish criminals, protect the public and help victims. This would cost us less than $12 million, a savings of more than $200 million a year over option one.
The report itself notes that most death row inmates die before they can be executed anyway, rendering the whole process somewhat pointless. Combined with the racial biases that Minsker describes in her article but that the report did not closely examine, and the fiscal issues involved, it seems sensible from a public policy standpoint to eliminate the death penalty and embrace the life imprisonment option.
It's clear that California's correctional policies are totally unsustainable. But with a broken political system and a lack of leadership from either party on fixing it, it seems unlikely we're going to get any real solutions anytime soon.
An amazing thing happened this week. The Supreme Court, by a 7-2 margin, ruled that federal judges have the leeway to reduce sentences for possession of crack cocaine relative to powder. The disparity in sentencing, which has significant racial overtones, has long been unconscionably unfair. And get this: the US Sentencing Commission unanimously decided to make the guidelines retroactive which could result in thousands of convicts who were unfairly sentenced to be released.
See, there's a national sentencing commission that reviews information and makes recommendations based on logic and common sense, taking the hot-button issue of sentencing out of the political sphere. Yet here in California, we have been stymied at any effort to create such a sentencing commission, and all sentencing legislation moves in the direction of being more punitive rather than less. This is how our jails have become clogged with so many nonviolent offenders, who in the overcrowded environment without proper treatment and rehabilitation often return to jail more violent than when they got there in the first place. The executive branch of this state knows this, yet they refuse to reveal their documents and communications that would confirm it.
States have the ability to break free from the "tough on crime" box and actually change the tilt in favor of jailing more and more citizens for longer and longer periods. Heck, in New Jersey this week they voted to ban the death penalty. But the only way to see any early prison releases in California is when the state miscalculates their sentences.
Three bills in the California Legislature would help prevent the most common causes of wrongful conviction:
Senate Bill 511 (Alquist) will require the electronic recording of police interrogation in cases involving homicides and other violent felonies.
Senate Bill 756 (Ridley-Thomas) will require the appointment of a task force to draft guidelines for the conduct of police line-ups and photo arrays to increase the accuracy of eyewitness identifications.
Senate Bill 609 (Romero) will require the corroboration of testimony by jailhouse informants.
The California Commission on the Fair Administration of Justice—a group of law enforcement officers, prosecutors and defense attorneys—has recommended all three reforms, http://ccfaj.org/legislation-2007.html.
These reforms will help protect the innocent and make sure the guilty are convicted.
Jennifer Warren writes in the LA Times today about two former prison officials who claim that the corrections officer's union and the governor conspired to stymie any efforts to fix California's condition-critical prison system. The officials claim that Chief of Staff Susan Kennedy was tasked with handling the labor contract between the prison guards and the state, and that top Schwarzenegger aides were willing to give the union whatever they desired in order to support them in the gubernatorial election (which they did not; they endorsed Angelides, but did not run the barrage of ads that were initially expected). The union was repotedly given veto power over the nominations to top posts in the corrections department (Union officials deny this). These paragraphs are indicative of the general tenor:
In district court today, Judge Jeremy Fogel, who earlier imposed a moratorium on all executions in the state, ruled that the current method of imposing the death penalty via lethal injection risks violating the Constitutional ban on cruel and unusual punishment. The judge did say that "California's implementation of lethal injection is broken, but it can be fixed."
This is the second state in recent months to rule this particular type of lethal injection unconstitutional, joining Missouri. In addition, this comes on the heels of a report that death penalty cases are at their lowest number in decades, 60% below its peak in 1999.
I'm wondering exactly how the situation could be fixed to minimize the amount of pain and suffering. The issue, as I remember, is that the anaesthetic administered was not sufficient to definitively eliminate pain.
This is yet another capper on the troubled legal system in the state, including the prison overcrowding problem, where the judiciary has stepped in and demanded a fix within six months or prisoners must be released.
A bill which would bar doctors from participating in executions cleared the Assembly Business and Professions Committee yesterday.
The powerful doctors' lobby, the California Medical Association, has sponsored legislation, AB 1954 by Assemblyman Ted Lieu, D-Torrance, that would prohibit the state from using licensed physicians in an execution.
The bill cleared the Assembly Business and Professions Committee with a bare majority, but only after an initial critic reluctantly voted for the measure just before the panel adjourned.
The measure still must pass the Appropriations Committee to reach the Assembly floor. The bill has not yet been heard in the state Senate. (San Diego U-T 4/18/06)
Is this really what we need the legislature to be doing? Seriously, isn't there something better. Listen, I am personally against the death penalty. I would hope that we as a society have evolved past that. But, even if we haven't, does the Legislature really need to start telling doctors what to do. I'll let Joe Canciamilla make the case:
But Assemblyman Joe Canciamilla, D-Pittsburg, pointedly asked Hertzka why it was necessary to enact a state law to protect doctors from something they cannot be forced to do anyhow.
“You are asking the state Legislature to tell doctors that they are now prohibited as a matter of state law, from participating in a particular activity,” Canciamilla said.
“Once you open that door . . . where do you individually draw the line because I can see a lot of other people marching in here suggesting that (other) activities be prohibited.”
Canciamilla offered abortion as an example. Assemblyman Leland Yee, D-San Francisco, warned that a simmering debate over the legalization of assisted suicide also could become entangled in the precedent that would be set.
And the best the Doctors' Association can come up with is that it's not medical?
But, he argued, “once you think about it, there is nothing medical about an execution.”
The Morales case has “thrust physicians in the middle of this, and we're proactively saying we don't want to be a part of it,” Hertzka explained.
Yes, it's not medical. But, there are already ways to avoid having to do this. The state should not be telling doctors how to practice. The precedent this sets is terrible. Do we really want to start regulating this? How do we argue against abortion regulation? It just is not a place to put any "political capital" as a progressive.
I wasn't going to weigh in on this particular subject. I figured that killing a person is killing a person. It doesn't make much difference how you do it. Well, as long as we can rule out stoning, dragging behind a car, and some other nasty ways to go.
But, I think I'm beginning to come around on that. By striking down the three drug cocktail that California used, U.S. District Court Judge Jeremy Fogel has drawn the nation's attention to the death penalty issue. That alone would be sufficient to make it noteworthy. We are the lone Western industrial nation to still carry out executions, yet there is a suprisingly small amount of public debate about the issue.
And now this is getting bigger, far bigger than I expected after the withdrawal of the anesthesiologists:
Fogel appropriately wants assurances that the state's method of execution -- lethal injection -- does not constitute cruel and unusual punishment. The question is whether the three-drug ``protocol'' used in California and other states sufficiently eliminates pain during an inmate's execution.
A widely distributed article appearing in the April 2005 issue of the British medical journal Lancet reported on a study by University of Miami researchers that indicated lethal injection may be more painful than the electric chair or the gas chamber. The study, which said inmates in a majority of cases received a lower level of anesthesia than is commonly used in surgery, has sparked widespread debate among medical professionals.
Morales was scheduled to die Tuesday. Fogel had ruled that the state should modify its execution procedure or delay carrying out the death-penalty sentence. The state responded to Fogel's concerns by choosing one of his approved options: promising to have an anesthesiologist present to make certain that Morales was unconscious while he was being executed. At the 11th hour, anesthesiologists reasonably balked at being involved, fearing they were violating their profession's ethical standards against doing harm. Their decision has since been backed by the American Medical Association and the California Medical Association.(San Jose Mercury News 2/23/06)
