Not Cruel and Unusual, but Costly, Punishment

By Debra J. Saunders
Sunday, July 17, 2011

Democratic California state Sen. Loni Hancock is pushing legislation to end California's death penalty. "Capital punishment is an expensive failure and an example of the dysfunction of our prisons," she explained in a statement. "California's death row is the largest and most costly in the United States. It is not helping to protect our state; it is helping to bankrupt us."

You have to hand this to death penalty opponents: For decades, capital punishment opponents have tried to thwart California's 1978 death penalty law with frivolous appeals that clog courts, delay punishment and burn through taxpayers' dollars. They now have been so successful that they can argue that California's death penalty doesn't work and costs too much.

Hancock is right about the dysfunction. Since 1978, California has executed 13 inmates, even though juries have sent close to 800 inmates to death row. California's lethal-injection protocol has been on hold since February 2006, when U.S. District Judge Jeremy Fogel stayed the execution of convicted rapist/murderer Michael Morales, lest Morales suffer any pain.

Death row inmates are likelier to kill themselves than they are to be executed. A new report published in the Loyola of Los Angeles Law Review notes that 78 inmates died on death row from natural causes or violence.

The report also lays out the costs of the death penalty. If you take the $4 billion it estimates that state and federal taxpayers have paid since 1978 to administer California's death penalty and then divide that number by 13, you find that each execution cost $308 million on average. The report estimates that the death penalty cost Californians $184 million in 2009.

In response to the report, Hancock put together SB 490, which would replace the death penalty with a sentence of life without parole. Hancock spokesman Larry Levin explained that the death penalty has been a "third rail" of California politics, but with the report's new numbers on the law's price tag, "we saw a moment."

One of the report's co-authors, Loyola law professor Paula M. Mitchell, told the Los Angeles Times she wants to abolish the death penalty. The other, Judge Arthur L. Alarcon, was on the three-judge panel that denied the appeal of Robert Alton Harris, who killed two 16-year-old boys before his 1992 execution.

On the one hand, the report does a solid job quantifying how much taxpayers must pay for the death penalty. Mitchell and Alarcon even found numbers that estimate defense costs for inmate appeals -- an average of $635,000 on federal appeals alone.

On the other hand, the authors gloss over the role of frivolous appeals and bonehead rulings by federal judges. The report states that federal courts granted new trials or penalty hearings in roughly 70 of 100 now-disposed cases. That means federal judges have overturned juries in cases reviewed by state courts in 7 in 10 cases.

Kent Scheidegger of the tough-on-crime Criminal Justice Legal Foundation puts the onus on the 9th U.S. Circuit Court of Appeals, where too many judges are "simply looking for a reason to reverse."

When I asked Hancock whether the 9th Circuit's 70 percent reversal rate bothers her, she answered, "No, not if they're following the law."

And: "Thank God we have a constitution. We're not one of those countries where they cut off hands and execute people without due process."

Don Heller wrote California's 1978 death penalty ballot measure. He now opposes capital punishment. A former prosecutor, he told me that he "evolved" in private practice after dealing more closely with defendants and seeing too many "pretty inept" lawyers representing capital cases. He concluded, "We're just spending way too much money for a system that has flaws in it."

In a letter to Hancock, Scheidegger hit the report for leaving out the savings of the "plea bargain effect," i.e., when murderers plead guilty -- forfeiting the chance they might be found not guilty at trial -- in order to avoid capital punishment. "What would happen to those cases if there were no death penalty?"

And what happens when California's death row lawyers discover they've got time on their hands and a receptive audience in the 9th Circuit? Next argument: Life without parole is too expensive.