shutterstock.com
The 34-page article in the Loyola of Los Angeles Law Review last month by U.S. 9th Circuit Judge Arthur Alarcón and Loyola Law School adjunct professor Paula Mitchell is provocatively titled: “Costs of Capital Punishment in California: Will Voters Choose Reform this November?”And the detailed update to a lengthy study occupying an entire issue of the same law review last year about rethinking the death penalty for the 725 inmates on death row in San Quentin State Prison from a purely economic standpoint, indeed, had some startling statistics.Since 1978, after the death penalty was restored in the state, taxpayers have spent upwards of $4 billion on maintaining the ultimate punishment against crime instead of having the sentence of life-without-the-possibility-of-parole (“LWOP”), or $184 million more every year. Currently, that comes to $308 million for each of the 13 executions that have actually been carried out in the last 34 years.Moreover, it cost about 20 times as much to prosecute a death penalty case as a life-without-parole case, with the least expensive capital punishment trial running $1.1 million or more.The updated investigation by the senior federal judge and Mitchell, who also has served as Judge Alarcón’s career law clerk since 2008, also cites recent studies which project that maintaining the present death penalty system in California means taxpayers will pay between $5 and $7 billion over the cost of LWOP sentences from now to 2050. ‘Counterintuitive for sure’“The death penalty being more expensive than life-without-the-possibility-of-parole, that’s the hardest thing for people to get their heads around,” said Mitchell during a recent interview in Judge Alarcón’s chambers on the 16th floor of the United States Court House in downtown Los Angeles. “What I’ve found is that you can’t explain it. It’s counterintuitive for sure. “It’s not supposed to be the way it works. You’re supposed to execute people rather than have taxpayers fund their 30 years of appeals. But that’s the system we have. Death row costs more just physically to incarcerate inmates. They have single cells. They have to be escorted everywhere by two guards. “At the same time, they have tremendous privileges, so there’s added security for group religious activities or to go to the canteen,” she reported. “And they have seven- days-a-week access to their attorneys. I’ve even heard that a few inmates have asked for the death penalty versus life without parole, because they know they’re not going to be executed and the living conditions are better."In fact, under the current 1978 law, 57 California death row inmates have died from natural causes (usually old age); six inmates have succumbed from “other causes”; 20 inmates have committed suicide; and only 13 inmates have been executed by the state (and one was executed in Missouri).The reason for the often-three-decade delay from sentencing to execution is that convicted capital cases, according to the state’s constitution, have an automatic right of appeal to the California Supreme Court. This can include nearly endless appeals that bounce back and forth between state and federal appellate courts, including Habeas Corpus proceedings, with different types of lawyers having to handle these varied appeals. The wait alone for an appellate attorney is five years, with another five years before a case is argued at the state supreme court. But Mitchell points out, first of all, the death penalty system is broken because California has more than 35 different kinds of first degree murder that are “death eligible” — from “lying in wait” for a victim, to the victim being an on-duty firefighter, to murder committed by discharging a firearm from a motor vehicle (e.g., “drive-by” shootings).“So we have a lot of people who are eligible to be charged with the death penalty and who district attorneys do charge,” Mitchell explained. “And when you have such a large pool, you don’t have a system that can effectively process those appeals, so it’s going to get clogged. Because the backlog now is so great, and we keep adding 20 inmates a year to death row, the death row inmates are getting to be old. They’re dying of other causes before their executions are ever set.” Since 2006, there has been a federal court-ordered moratorium on executions. The issue concerns the use of a questionable three-drug lethal injection procedure and how that can lead to cruel and unusual punishment for the convicted inmate. “Regardless what happens at this election, at least the voters will have more information when they go to cast ballots this November. And I guess that’s the best we can hope for.” —Loyola Law Professor Paula MitchellAnother factor was a later injunction from the U.S. 9th Circuit Court of Appeals, requiring that a medical technician administer the deadly intravenous medications. But no licensed medical professional could be found who would carry out the execution, so the de facto moratorium continues. More death-eligible crimes Mitchell says both the Legislative Analyst’s Office (LAO) and the California Department of Corrections and Rehabilitation “failed to honestly assess and disclose” what ballot measures adding more crimes to the death-eligibility list actually cost taxpayers during the last three decades. Since their first three-year study — “Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion-Dollar Death Penalty Debacle” — was published last year, Mitchell and Judge Alarcón presented a number of recommendations to unclog the state’s death penalty broken system. These include state Habeas petitions filed first in the trial courts to increase funding for capital appellate and Habeas lawyers. And their “roadmap for reform” offered three options: reform the death penalty but leave its current scope unchanged; reform the death penalty by narrowing the number of death-eligible crimes; or abolish the death penalty entirely and replace it with the punishment of LWOP.“But nobody responded,” the Loyola Law School professor pointed out. “The legislature didn’t respond. There were no bills introduced.”She said a lot has happened in the last year, however. State Senator Loni Hancock introduced Senate Bill 490 in the state legislature, which would have replaced capital punishment with life-in-prison-without-the-possibility-of-parole. When that bill failed, the SAFE California Coalition, a grassroots effort, took up the cause as an initiative that garnered more than 800,000 signatures, qualifying it for the Nov. 6, 2012, ballot as Proposition 34.Officially called the “Death Penalty Initiative Statute,” the proposition would first repeal the death penalty for first-degree murder, replacing it with life-imprisonment-without-the-possibility-for-parole. It also requires these convicted lifers get jobs within prison and give their earnings to crime victims. In addition, Proposition 34 directs $100 million over three years to go into the SAFE California Fund for local law enforcement agencies to solve major crimes.The last part of the ballot initiative particularly impresses Mitchell.“I was shocked to learn that 1,000 murders a year go unsolved in California,” she acknowledged. “And you think about public safety. What’s going to make you feel safer — knowing that killers are actually caught or knowing that you have $184 million going to continue the death penalty, which pretty much exists only in theory now in our state?” ‘Huge’ movementMitchell isn’t fazed that a late September USC/Los Angeles Times poll found that Proposition 34 was trailing 51 percent to 38 percent with potential voters. “I’m just an eternal optimist,” she said. “The way I look at that poll is in 2010 that number was closer to 70 percent for the death penalty. So that is huge — a great deal of movement. And other polls that I’ve seen show that once the undecided hear the [cost] message, they lean towards getting rid of the death penalty.“So I really do think it’s a matter of getting the message out,” she stressed. “And I also know, from having talked to many, many people, that there are certain people for whom it’s never going to be a close call. They just want the death penalty. They believe in that sort of retribution.” The graduate of Loyola Law School, who also holds a master’s degree from the London School of Economics, points out that their research is made more credible by the fact that Judge Alarcón isn’t opposed to the death penalty, while she is basically against it. But she says what really matters is that California voters need to be informed about the detailed “cost/benefits” analysis that they’ve done and just recently updated.“Regardless what happens at this election, at least the voters will have more information when they go to cast ballots this November,” Mitchell observed. “And I guess that’s the best we can hope for.” {gallery width=100 height=100}gallery/2012/1012/deathpencost/{/gallery}