Saturday, 12 July 2008

State's death penalty system: 'Close to collapse,' says panel

By R. W. Dellinger

In the first comprehensive look at capital punishment in California since it was restored in 1977, a prestigious state panel described the system as "close to collapse."

The 116-page report, released June 30 by the California Commission on the Fair Administration of Justice, found that the time between judgment and execution in California doubles that of every other state still executing criminals. While the national average is a dozen years, here the average delay is 20 to 25 years.

The report says the state's death penalty system is "plagued" with excessive downtime in the appointment of counsel for direct appeals and habeas corpus petitions, and a "severe backlog" in the review of appeals and habeas petitions before the California Supreme Court.

"The failures in the administration of California's death penalty law create cynicism and disrespect for the rule of law, increase the duration and costs of confining death row inmates, weaken any possible deterrent benefits of capital punishment, increase the emotional trauma experienced by murder victims, families, and delay the resolution of meritorious capital appeals," the report declared.

The 22-member commission was comprised of prosecutors, defense attorneys, victim advocates and law enforcement officials, including state Attorney General Jerry Brown, former attorney general John Van de Kamp, and LAPD Chief William Bratton.

With a backlog of 670 cases - the largest death row in the nation - the commission pointed out that it would take five prisoners being executed every month for the next 12 years to carry out the sentences of inmates now on death row.

"We currently have a dysfunctional system," stated the panel. "The lapse of time from sentence of death to execution averages over two decades in California. Just to keep cases moving at this snail's pace, we spend large amounts of taxpayers' money each year; by conservative estimates, well over $100 million annually.

"The families of murder victims are cruelly deluded into believing that justice will be delivered with finality during their lifetimes. Those condemned to death in violation of law much wait years until the courts determine they are entitled to a new trial or penalty hearing. The strain placed by these cases on our justice system, in terms of the time and attention taken away from other business that the courts must conduct for our citizens, is heavy."

The report points out that to reduce the average lapse of time from sentence to execution by even half, to reach the national average of 12 years, would cost an extra $95 million, nearly twice what it currently costs to run the state's death penalty system.

With California facing a $15 billion-plus budget deficit, the commissioners put on the table two alternatives to reduce the costs of carrying out the state's death penalty law.

One option is to reduce the number of death penalty cases by simply cutting the number of "special circumstances" that make certain crimes capital offenses. California has 21 of these circumstances involving the victim, motive, felony murder (commission of a murder during a felony crime) and other special conditions.

The other alternative is to replace the death penalty with a maximum penalty of lifetime incarceration without the possibility of parole. According to the commission, significantly lessening the number of capital crimes, combined with eliminating the death penalty in favor of life without parole, would reduce annual costs from $137 million to $11.5 million - a savings of more than $125 million every year.

Recommended: Review panel
Among the commission's other findings and recommendations:

---The California legislature needs to "immediately address" how to recruit qualified attorneys to handle direct appeals and habeas corpus proceedings in death penalty cases; and private lawyers who handle these cases should be paid at least minimum federal standard fees.
---Serious consideration should be given to allowing lower courts to hear death penalty appeals rather than having all appeals go to the California Supreme Court, which has such a backlog that only one appeal has been resolved since 1997.
---The establishment of a California Death Penalty Review Panel, composed of judges, prosecutors, defense lawyers, police and victim advocates, be appointed by the governor and legislature to gauge the progress of the courts in reducing delays, analyzing costs and monitoring the implementation of the commission's recommendations.

Currently, 240 inmates have been on California's death row for more than 15 years, 119 for more than 20 years, and 30 for more than 25 years, while 13 individuals have been executed in California since 1978. Twenty criminals every year are sentenced to death in California, the report said.

Of concern to the panel was that 79 inmates on death row do not have lawyers to handle their initial (which by law is automatic) appeal; 291 death row prisoners don't have attorneys to represent constitutional challenges based on facts that trial courts did not hear.

Fears: 'Wrongful' convictions
While the California Commission on the Fair Administration of Justice found no "credible evidence" that the state has ever executed an innocent person, it nonetheless declared, "The commission cannot conclude with confidence that the administration of the death penalty in California eliminates the risk that innocent persons might be convicted and sentenced to death."

The commission said all the factors it previously identified as enhancing the risk of wrongful convictions were "equally present" in capital cases. And it reported that nationally 205 defendants convicted of murder from 1989 through 2003 were exonerated with 74 having been sentenced to death. Fourteen of these murder cases occurred in California.

"Wrongful" death sentences are more problematic, according to the panel. While 87 percent of those charged with murder in California are eligible for the death penalty, less than 10 percent are actually sentenced to death.

"Yet if the defendant were inappropriately singled out for a death sentence, or if his lack of economic resources increases the probability of his death sentence, or if his lawyer failed to present mitigating evidence that might have convinced a jury to opt for a life sentence, or if the prosecutor suppressed exculpatory evidence, we would certainly conclude that his death was 'wrongful,'" the report noted.

The panel also touched on geographic and racial disparities concerning the death penalty in California. It quoted studies that examined racial, ethnic and geographical variation in the imposition of capital punishment, showing that death sentencing ratios varied in different counties from .58 for each 100 homicides to rates nearly ten times higher.

The commission, which was divided on some issues, concluded, "This report sets forth an ambitious and expensive agenda of reform. The failure to implement it, however, will be even more costly. The death penalty will remain a hollow promise to the people of California."

New information
"I think what the commission has done is made an enormous amount of information about the death penalty available to the public," said Stefanie Faucher, program director of Death Penalty Focus, one of the nation's largest advocacy groups dedicated to abolishing capital punishment.

Faucher welcomed the "detailed information" on the cost of the death penalty, and applauded the commission's explanation of the numerous delays in capital cases in California. "A lot of people don't really understand," she said. "They think it's just defense layers fiddling around, and they don't realize there's some real structural problems with the way the system works."

However, Faucher believes the commission's final report also has two major shortcomings. There is, she believes, no adequate explanation in the report about why racial minorities and the poor tend to receive the death penalty more often than those who are Anglo and better off economically. More data collection, which the commission recommends, is fine, she said, but there already have been "tons of studies" on the issue.

"So I think that was disappointing that they didn't go further in saying, 'This is a real problem, and we can't continue to operate a system that is so discriminatory, whether intentionally or accidentally,'" she told The Tidings.

Faucher also feels the commission missed an opportunity by merely suggesting the aforementioned "alternatives" to the current system instead of making forceful recommendations. Moreover, she said, reducing the number of special circumstances for capital offenses doesn't get to the heart of the issue: "Is the death penalty something that a modern society claiming to embrace values of human rights should be continuing to do when the entire world has essentially abandoned it?"

Father Chris Ponnet, a member of the board of directors of Death Penalty Focus and pastor of St. Camillus Church, which serves Los Angeles County Hospital and other nearby medical centers, also believes there are many positive things about the report.

The Southern California coordinator of Pax Christi agrees that having the numbers spelled out, especially the exorbitant costs of maintaining a death row, is a real eye-opener. He also thinks that bringing professionals together from many perspectives and disciplines to study an issue produces discussion, incites and, maybe, even meaningful change. And he likes the commission's recommendation for a statewide death penalty review panel to compare capital punishment policies in different California locales.

"But the report doesn't go where I wanted it to go," said Father Ponnet. "It definitely doesn't address the moral issue. As a person of faith and as a person who works with victims and criminals, I would have liked it to say we need to eliminate the death penalty in our country. Our church and most mainline churches have articulated that there is no place for the death penalty in our period and time."

Then there is the whole issue of restorative justice, he added. "It's the ongoing question among those of us who work on this: 'OK, let's imagine California or the world without the death penalty. What does the justice system look like at that point? How do you deal with these prisons that are just getting fuller and fuller?' But the ideal would be to eliminate, abolish the death penalty."

Still, the priest is hopeful about the report.

"Generally, I think it's good," he said. "I think anything that creates conversation about the death penalty can be helpful. When just everything remains the status quo and no one has a discussion, that become problematic. So I think the challenge now will be who will take on the implementation, recommendations and the funding of some of those recommendations?"

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