Legal Commentary

Options For Reforming (Or Ending) CA's Death Penalty

By TChris

Here's further fuel for the conservative argument that no government functions so flawlessly that it deserves to be entrusted with the decision to administer the death penalty.

Since 1978, the federal courts have ordered new trials in 38 of 54 death penalty appeals in California, an unacceptable 70 percent error rate.

By "appeals" the writer is referring to federal habeas corpus review, the right that President Bush and his most ardent followers deem inconsequential.

The linked editorial cheers "the chief finding of the Commission on the Fair Administration of Justice:" [more ....]

"As it is administered in California, the death penalty is dysfunctional. It is an expensive and frustrating judicial exercise that satisfies no one, not defendants, victims' families, taxpayers nor the justice system itself."

The Commission draws no conclusion about the reason for a startling racial disparity in California death sentences, in part because most prosecutors refused to cooperate with the Commission's study.

California's 5-to-1 ratio of blacks on death row to blacks in the state population, measured in percentages, is much higher than the ratios in Texas, Georgia, Alabama and South Carolina. ...

Twenty-four percent of the people arrested for homicide are black, but blacks make up 36 percent of the current death row population. ... One factor causing this imbalance seems to be a large number of cases in which blacks have been sentenced to death for killing white victims.

If California chooses to retain the death penalty, the Commission recommends an infusion of resources to assure that the accused is protected by a fair trial and a timely appeal:

To reduce errors and speed death penalty appeals, the commission unanimously recommends a list of fixes mainly to improve the quality and increase the number of lawyers handling death penalty appeals. It also calls upon the state to increase reimbursement to counties for the high cost of homicide trials, including the expense of ensuring that defendants, most of whom are indigent, have competent representation.

This reform would also be useful:

Reduce the number of "special circumstances" that make criminals eligible for the death penalty. There are currently 21, a list so broad that it makes 87 percent of all convicted first-degree murderers in this state eligible for execution. One special circumstance, the felony murder rule, makes not just the burglar who killed his victim eligible for death, but also the accomplice who drove the get-away car and killed no one.

Cutting the number of special circumstances to five, as a national blue ribbon panel of judges, prosecutors and defense lawyers has recommended, would reserve execution for the worst of the worst. It would also eliminate much of the troubling geographical variation of death penalty cases and save $100 million annually.

But the best option is to stop tinkering with a system that can never create an "acceptable risk" of executing an innocent person.

Alternately, replace the death penalty with life in prison without the possibility of parole. As the report states, "Although the risks of wrongful convictions (would) remain, there would be no wrongful executions" with such a change. Replacing executions with a hard life sentence would also save the state hundreds of millions of dollars, including construction of a new death row at San Quentin.

While it's unfortunate that the editorial doesn't unequivocally endorse an end to executions, it at least recognizes a truth upon which liberals, conservatives, and every reasonable person on every political spectrum should agree:

The status quo is not a responsible option.

Here's the Commission's report (pdf). Here are links to other reports the Commission has released concerning false confessions, eyewitness identification, jailhouse informants, and other topics relating to wrongful convictions.

Full post as published by TalkLeft on July 06, 2008 (boomark / email).