California’s $4 Billion Death Penalty Law

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By Peter Schrag

It’s probably not surprising that while many state legislatures, now dominated by Republicans, are going hard right, some California Democrats are hedging gingerly to the left. But it’s still refreshing.

The most notable recent example is Sen. Loni Hancock’s SB490, a bill which would repeal California’s death penalty as “an expensive failure” and replace it with a sentence of life imprisonment without the possibility of parole.

At a time like this, it may even have a slim chance -- even with California voters -- though probably not a great one. But it could open a useful and long overdue debate. It’s scheduled for its first hearing in the Assembly Public Safety Committee this morning (July 5).

The core of Hancock’s argument rests not so much on humanitarian grounds or on the possibility that as in other states, some death row inmates turn out to be not guilty, or on the dubious impact of capital punishment on crime rates, as on the sheer cost.

 Since 1978, according to Hancock’s numbers, California has spent $4 billion more on the legal expenses, housing and other costs associated with the death penalty than it would have spent on the same felons if they’d been ordinary prisoners. During those 33 years, it’s executed a total of 13 felons.

The numbers come largely from a voluminous article just published in the Loyola of Los Angeles Law Review by Arthur L. Alarcon and Paula M. Mitchell, the first a former prosecutor and retired federal appeals court judge, the second an adjunct professor at Loyola’s law school.

“The current backlog of death penalty cases is so severe,” they write, “that most of the 714 prisoners now on death row will wait well over 20 years before their cases are resolved. Many of these condemned inmates will thus languish on death row for decades, only to die of natural causes while still waiting for their cases to be resolved.”

In fact, the vast majority of prisoners on death row will never be executed. They’ll die, some by their own hand, some from disease or old age, long before the slow legal process has run its course and the state can do it for them.

In the meantime, as Alarcon and Mitchell tell it, they collectively cost the state an additional $184 million a year, tie up the legal system with appeals to the state Supreme Court (mandated by law) and habeas corpus motions in the federal courts. Often it takes years before a qualified death penalty lawyer is even available. In effect, the death penalty in California is a life sentence that costs the state a lot more.

Hancock’s reform would have to pass not only the legislature and get the governor’s signature, but the approval of the voters before it could go into effect. In the past, Californians strongly supported the death penalty – again and again in the last thirty years they’ve used the ballot to expand the list of crimes that can be subject to capital punishment.

But Hancock has a recent poll from David Binder Research of “high propensity voters,” – voters likely to come out in primaries or special elections -- in which respondents were reminded of the state’s severe fiscal problems and then read this:

One idea being discussed is for Governor Brown to convert the sentences of all 712 people on death row to a sentence of life imprisonment without any possibility of parole, and require these inmates to work and pay restitution to victim families. This would save the state $1 billion in five years, without releasing a single prisoner, and the money saved would be required to be used only for public education and law enforcement.

Do you support or oppose this idea?

Of the 800 respondents, 63 percent said yes, 28 percent said no. But the question is loaded; it has an argument for abolition but none against, nor, of course, does it indicate how voters will react when they hear such arguments in a campaign.

Although some prosecutors, among them former Los Angeles District Attorney Gil Garcetti, support Hancock’s bill, many are likely to argue, probably with good reason, that the death penalty law is a powerful bargaining tool. How many defendants agree to a plea bargain if the prosecution agrees not to seek the death penalty?

Defenders of the death penalty will also argue that the costs are not inevitable – that if death row inmates didn’t have the right to endless appeals in state and federal courts, the expenses wouldn’t be nearly as great. It’s an argument that tough-on-crime politicians and victims’ groups have made frequently.

But both the state and federal constitutions protect those rights. And given the revelations of recent years in Illinois, Texas and other states about unjust convictions, sometimes through prosecutorial misconduct, sometimes through the use of tainted evidence or biased witnesses, it’s just as easy to argue that in capital cases especially, the system requires more diligence, not less.

Earlier this year, Illinois joined a dozen other states in abolishing the death penalty, because, as Gov. Pat Quinn said when he signed the bill, “We cannot have a death-penalty system in our state which kills innocents, and unfortunately our system was in grave danger of doing exactly that…"

There’s no way to know whether the often unpredictable Jerry Brown would sign the Hancock bill. In 1977, Brown, a vocal opponent of capital punishment, vetoed a death penalty bill, a veto that was soon overridden by the legislature.

But legislators were shocked last week that Brown, once a firm friend of Cesar Chavez and the United Farm Workers, vetoed the bill that would have established a card check system making it easier for the union to organize in the fields. In 1994, Brown’s sister Kathleen lost her race for governor in part because she personally opposed the death penalty.

There’s not much question that, as Hancock said, California’s death penalty law has been a lot tougher on the taxpayers than it is on crime.  Unfortunately a lot of politicians will think it’s far safer to vote for it – or for almost any other “tough on crime” bill – than to abolish it.

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Peter Schrag, whose exclusive weekly column appears every Monday in the California Progress Report, is the former editorial page editor and columnist of the Sacramento Bee. He is the author of Paradise Lost: California’s Experience, America’s Future and California: America’s High Stakes Experiment. His latest book, Not Fit for Our Society: Nativism, Eugenics, Immigration is now on sale.