California’s death penalty process is ‘dysfunctional,’ panel finds

The time from sentencing to execution is twice the national average. Panel recommends limiting crimes eligible for capital punishment or sentencing inmates to life without parole instead.
By Maura Dolan, Los Angeles Times Staff Writer
9:11 AM PDT, June 30, 2008
California’s administration of the death penalty is “dysfunctional” and “close to collapse,” plagued by delays of nearly twice the national average from sentencing to execution and drowning under a backlog of cases, a state commission reported today.

In its final report, the California Commission on the Fair Administration of Justice said the state’s death row of 670 inmates — the largest in the nation — will continue to swell unless the state nearly doubles what it now spends on attorneys for inmates or changes sentencing laws.

In an interview, Santa Clara University law professor Gerald Uelmen, executive director of the commission, called today’s report “kind of like poking a stick in a hornet’s nest” and predicted it would receive wide attention.

The 22-member commission, created by the Legislature to recommend improvements in the criminal justice system, includes law enforcement and defense bar representatives and victim advocates.

Although commissioners strongly disagreed on some issues, they were unanimous in concluding that the current death penalty system was failing and in agreeing that a large amount of money was needed for significant change. The report offers alternative proposals for reform.

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.

The time from death sentence to execution in California is 20 to 25 years, compared with the national average of 12 years, the commission said. Thirty inmates have been on death row more than 25 years, 119 for more than 20 and 240 for more than 15.

“The system’s failures create cynicism and disrespect for the rule of law . . . 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 commission said.

The commission learned of “no credible evidence” that the state had executed an innocent person but said the risk remained. Fourteen people convicted of murder in California from 1989 through 2003 were later exonerated. Six death row inmates who won new trials were acquitted or had their charges dismissed for lack of evidence.

Among the panel’s findings:

* After sentences of death, cases are automatically appealed to the California Supreme Court, which upholds the sentence 90% of the time, compared with an approval rate of 73.7% in 14 other death penalty states from 1992 to 2002. Since 1978, 70% of the cases upheld by the state and then appealed to federal courts have been overturned.

* A 1978 voter initiative that helped make 87% of first-degree murders subject to the death penalty dramatically increased the number of death sentences in the state. In the year before passage of the so-called Briggs Initiative, seven people were sentenced to death. By 2000, death sentences were averaging 32 a year. They have since leveled off to about 20 a year.

* California’s death row inmates whose sentences or verdicts were later overturned waited an average of 16.75 years for their reprieves.

* 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.

* Since the death penalty’s restoration in 1978, 38 death row inmates have died of natural causes, 14 have committed suicide, 13 have been executed and 98 have left death row because their convictions or sentences were overturned.

“Delays grow worse every year,” the commission said.

The commission attributed the unusually high rate of reversals by federal courts in California death cases to the availability of more federal money for investigations, the opportunity to develop a more complete factual record in federal hearings, and “the greater independence of federal judges with lifetime appointments.”

Law professor Uelmen, an expert on the state high court, said the reversals were due to “the limited amount of time that the California Supreme Court has to give these cases,” adding that the high court is “just overwhelmed with these cases.”

To reduce the backlog of cases, the commission said the state would have to nearly double its spending for lawyers and investigators, trim the number of offenses that qualify for the death penalty or simply sentence all death-qualified prisoners to life without possibility of parole.

“Public debate on the death penalty arouses deeply felt passions on both sides,” the report said. “The time has come for a rational consideration of all alternatives based upon objective information and realistic assessments.”

Most commissioners recommended that the state Constitution be amended to permit intermediate courts of appeal to decide capital cases rather than having them go straight to the California Supreme Court. The proposal would speed up death penalty appeals and lead to earlier executions.

There are now 21 circumstances that qualify a defendant for the death penalty. One of the most frequently used circumstances in California is felony murder, in which a person is killed during the course of another felony, such as a robbery. The death penalty can be given to anyone who participated in the robbery, not just the person who did the killing.

An alternative, the commission noted, would be to limit the number of crimes eligible for the death penalty. If the state chooses to reduce the number of qualifying offenses, the sentences of inmates whose crimes were not among them should be commuted to life without possibility of parole, the commission said.

“Taking this step would actually have little impact for the death row inmates involved,” the commission said. “Most of them will never be executed but will die in prison.”

Several commissioners presented individual reports, some rejecting any narrowing of death-qualifying offenses and others wanting all death sentences converted to life without parole.

The commission expires today. Gov. Arnold Schwarzenegger has vetoed three bills that grew out of the commission’s previous recommendations. Another bill became law. Other commission proposals could be implemented without the need for legislative action.

It will take five to six years before the full import of the commission is known, Uelmen said. Borrowing a line from a former New Jersey chief justice, Uelmen added: “The criminal justice system is not a sport for the short-winded.”

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