Looming 2013 Issues: What is the Future of the Death Penalty?

The future of the death penalty in California could not be more murky.   In November, the voters had a chance to end the death penalty in the state, but Prop. 34 was narrowly defeated, 52 percent to 48 percent.  That leaves the system still alive, technically, though on life support.

She explained, in a recent interview with the Daily Journal, that major structural changes such as a proposal to have state appellate courts, rather than the Supreme Court, handle appeals in capital case are “dead.”  Changes like this would require a new constitutional amendment and such proposals have failed in the past and momentum now is shifting away from capital punishment.

Ellen Kreitzberg, Professor at the Santa Clara University School of Law and Director of the Death Penalty College, told the Vanguard earlier this month, “Right now there are two additional impediments towards any additional executions.”

One of these is the judicial decision in Marin County where, following a federal court ruling that the state’s method of execution violated the Eighth Amendment’s ban on cruel and unusual punishment, a state judge threw out the CDCR’s (California Department of Corrections and Rehabilitation) rewritten protocol, arguing that the state violated its own process by failing to adequately consider public comment on the process.

The judge noted that the state made the decision to stick with a three-drug lethal injection process over a one-drug procedure that many consider more humane and less prone to mistakes.

Professor Kreitzberg also said that the issue of the unconstitutionality of the old protocol is still pending, “and they have to go back to that court before they can proceed.”

“There are these two legal impediments before they can even begin the process and they still need to create the protocol that passes judicial muster,” she added.  “So no matter how quickly they decide to go, there will still be several years before an execution takes place.”

Despite this, there have been two recent death penalty cases involving Yolo County and Davis residents.

The Vanguard recently reported that the costs to Yolo County for the prosecution of Marco Topete was at least $1.4 million.  That includes $650 thousand for legal fees for defense counsel, $744.5 thousand for experts and other vendors.  And $12.4 thousand for miscellaneous defense expenses such as copies, travel, parking, etc.

We have considerable reason to believe that this is a low figure.  Because Marco Topete killed a sheriff’s deputy, he was placed in custody in the Sacramento County Jail, rather than in Yolo, and transported for months on a daily basis.  The county did not provide figures on that.

The high cost of death penalty cases is not a surprising or particularly new development.  In 2011, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell published a study that shows the state of California spends $184 million each year in additional costs for capital trials.

They write: “The Legislature’s Joint Committee on Prison Construction and Operations reported in 1992 that “an average death-penalty murder trial can cost more than six times the $93,000 spent on non-capital murder cases.””  Another estimate puts the cost at 10 to 20 times more than for other murder trials not involving the death penalty.

They cite a 1993 study, looking at capital cases in California between 1989 and 1992, that concluded at that time the “cost of a death penalty [trial was] at least $1.2 million more than a comparable murder trial pursuing the alternative of life in prison without parole.”

An ACLU study looking at the costs of homicide trials between 1996 and 2005 looked at 10 capital cases and concluded: “Comparing the least expensive death penalty trial to the most expensive noncapital trial yielded a difference of $1.1 million more for the death case, but it is impossible to project this difference to all death penalty trials.”

Natasha Minsker, Death Penalty Policy Director of the ACLU-NC who managed the Prop. 34 campaign, told the Vanguard, “Death penalty trials are much more expensive than regular murder trials, costing at least $1 million more and sometimes tens of millions more.”

At the same time, Sacramento County wrapped up prosecution for one of Davis’ most notorious murders – a case that went 30 years before being resolved.

Richard Riggins, parent of one of the victims, John Riggins, recently wrote a letter of thanks on behalf of the family to the local newspaper for their coverage of the trial.

In closing he wrote, “At this point, the Davis community has done all that is possible and it is up to the state to carry out their recommendations.”

While the Vanguard cannot begin to imagine the hardship that these families have had to endure, nor the anguish of this community 30 years ago when the horrific tragedy occurred, the fact remains that the state is unlikely to ever carry out the recommendations against the 67-year-old convicted killer.

It was Richard Riggins, in fact, who acknowledged this, telling the Woodland paper, “We were told from the start by the district attorney that we’d never see him executed by the death penalty, but his activities will be severely limited if he gets the death penalty. It’s not the same as being imprisoned without the possibility of parole. That’s why we’re seeking the death penalty – we want to limit his activities as much as possible in prison.”

In the conversations that the Vanguard had, it was revealed that it is not particularly accurate that death row is more unpleasant than being imprisoned for life without parole.  However, it is telling that this becomes the new justification for prosecutors – to justify the huge additional expense of the death penalty.

In essence, they argue, we might never execute this person, but at least he will suffer more.

While California’s first effort to end the death penalty failed for now, the death penalty seems on the wane.

Connecticut became the 17^th state to repeal the death penalty.

“Capital punishment is becoming marginalized and meaningless in most of the country,” said Richard Dieter, executive director of the Death Penalty Information Center, which released a new study on the death penalty a week ago Tuesday (December 18).

“In 2012, fewer states have the death penalty, fewer carried out executions, and death sentences and executions were clustered in a small number of states. It is very likely that more states will take up the question of death penalty repeal in the years ahead,” Mr. Dieter said.

Just nine states executed people this year.  Texas, as usual, leads the way with 15.  Florida now leads the nations with the most death sentences imposed.  In all, just four states – Texas, Oklahoma, Mississippi, and Arizona – carried out 75 percent of the nation’s 45 executions.

That is down from 98 executions in 1999, the post-1976 peak.

Locally, voters in Yolo County rejected the death penalty by a 54-46 margin.  At the same time, the area saw two death penalty cases where death was imposed.  Proponents will argue that, despite the lack of executions, the cases of Topete and Hirschfield were heinous crimes, worthy of the ultimate punishment.

We argue, given the expense and unlikelihood of carrying out an execution, that these cases are simply political by the prosecution.

In a recent op-ed in the San Francisco Chronicle, Franklin Zimring, a law professor at UC Berkeley’s Boalt Hall wrote, “For decades, it has been assumed that the death penalty was the third rail of California politics …. Measured against that reputation, the narrowly divided electorate on Prop. 34 is quite a surprise.”

He suggested two traditional ways – other than another referendum – that capital punishment might be abolished.

One way involves a finding by the courts that California’s law is unconstitutional: “A federal court has been considering whether the current California laundry list of aggravating circumstances is too promiscuous to meet minimum constitutional standards. If this current grab bag is struck down, the California Legislature then would have to consider whether and how to write a new death penalty statute. After courts struck down state statutes in New York and Massachusetts, the legislatures of each state decided the best course was no death penalty.”

A second alternative would be for the governor to declare a moratorium on executions, followed at a later time by complete abolition. Zimring concluded, “Whatever the endgame for state execution in California, the saga of 2012’s Prop. 34 will have been an important step toward an outcome that now looks inevitable on the near horizon.”

Governor Brown, despite his earlier activism against the death penalty in his youth, refused to take a stand on Prop 34.  In fact, he confounded the issue when he argued that he was unaware of any factually innocent people on California’s death row.

However, now that his tax measure has passed, it is conceivable that he will be more proactive on this issue.

Two days ago, the governor issued 79 pardons – though most were for relatively minor drug offenses.  Is this a sign that the governor will shift his focus, either later in his term or in a potential second term?  Hard to know.

In the meantime, hundreds of people sit on California’s death row at the cost of at least $184 million a year for an execution date that for most will never come.

—David M. Greenwald reporting

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