FURTHER THOUGHTS ON THE DEATH PENALTY - by Judge Jim Gray

FURTHER THOUGHTS ON THE DEATH PENALTY - by Judge Jim Gray 03/23/08

In last week’s column we discussed the five traditional rationales for the implementation of the death penalty. But there are additional important facts that also affect the discussion.  


One of those facts that is almost unknown by the general population is the financial cost of death penalty cases. The estimates are that it costs the taxpayer at least seven times the amount of money to have a death penalty trial, along with all of the accompanying appeals and writs of habeas corpus proceedings, than it would cost to try, convict, conduct the appeals for and actually keep the offenders in prison for the rest of their lives! People do not understand this fact. The cost of the extra investigators, attorneys, jury selection, court reporter’s transcripts and extra procedural safeguards is staggering!  


Why is this process so complicated and expensive? As Justice Sims wrote in a concurring opinion in Bennett v. Superior Court, 146 Cal.App.4th 344, 418 (2006), as a practical matter there really are four distinct trials in death penalty cases. The first is a trial (almost always with a jury) that addresses the possible guilt of the offender. The second trial decides the penalty of death or life without possibility of parole (LWOP) if the offender is convicted. Then the third trial is of the jurors in the case who arrived at those first two decisions in order to see if any of them was involved in any form of misconduct, such as telling other jurors about their own personal experiences in life.  


The fourth trial confronts the trial attorneys who were involved in the case. The prosecutors are “tried” to see if they presented their arguments unfairly or too emotionally, and the defense attorneys are “tried” to see if by chance they did not afford the offender the effective assistance of counsel on any material issue. These trials usually take place in habeas corpus proceedings in federal courts after the state appeals have finally run their course. At this time the defense is also entitled to virtually every scrap of paper prepared by any law enforcement officer that ever had anything to do with any of the witnesses in the case.


How has this situation been allowed to get so extreme? Well, first of all we are a compassionate society, and we seem to be institutionally unwilling to allow anyone to be executed unless all avenues of innocence and mitigation have been explored.  


Secondly, some people are so radically opposed to the death penalty that they have become zealous in their dedication to an exhaustive defense, or even to delay just for the sake of delay. For them it is a question of morality. Therefore no approach is too extreme if it has even the slightest hope of delaying the final outcome. And in actuality some of these seemingly extreme arguments have been successful in the past in obtaining a reprieve down to an LWOP, or even an exoneration of the underlying offense.


As a result and also as a practical matter, all cases involving the death penalty have become expensive beyond belief, and are delayed well beyond reason. In fact, I was the judge on the Preliminary Hearing in the death penalty case of a man named Teofilo Medina, who was proved in my court to have robbed four ARCO Mini Marts and thereafter to have killed the non-resisting clerks by shooting them in the back of the head at point-blank range. In short, he was a bad man.  


But my hearing took place in 1987, and he was eventually convicted and sentenced to death in 1988. He has now been on Death Row for almost 20 years, and he has seven attorneys still actively working on his appeal.  


This is not at all an exception. Remember Richard Ramirez, otherwise known as the “Night Stalker?” He was convicted in 1989 of 13 murders, 5 attempted murders, 11 sexual assaults and 14 burglaries. His first appeal went directly to the California Supreme Court, as is required by law. This is an enormous expenditure of resources. In fact, the Supreme Court’s statistics show that it spends about 20 percent of its time just on death penalty appeals. But even so, Ramirez’ appeal was not heard until June of 2006, which was 17 years after his conviction. Even though the appeal was decided about 60 days later, if his remaining appeals and writs are heard within the average time schedule of additional writs and appeals, his convictions will not be final until the year 2114 at the earliest.


And at least Ramirez has appointed appellate counsel. Currently only two of 17 inmates sentenced to death in the year 2002 have had attorneys appointed for their automatic appeals, and none sentenced in 2003 or thereafter have had any appointed at all. As a result, there are presently 88 inmates on Death Row who have still not had counsel appointed for them, and none of them to my knowledge have the funds to hire attorneys themselves.  


Why is there such a problem finding attorneys to represent these people? Because one must be experienced in this specialized field, and those professionals can make a great deal more money on other matters than what the state will pay them on these death penalty cases. In addition it is often emotionally draining work. So the numbers of attorneys willing to accept the appointment is declining, and the number of unrepresented sentenced prisoners continues to increase.


But there are many other serious problems in addition to the financial ones. Although about 60 percent of the general population continues to voice support for the death penalty, more and more of those who are required to impose it are withdrawing their support. That includes prosecutors, juries, judges and prison officials. As such, the numbers of death penalty convictions nationwide dropped from 317 in 1996 to only 128 in 2005. And this withdrawal of support also includes medical doctors, who are increasingly seeing their participation in the death penalty as a violation of their Hippocratic Oath.


Another large issue that must be considered with regard to the death penalty is both fairness as well as the appearance of fairness based upon things like racial disparities. Statistics show that the death penalty is invoked a great deal more often when the defendant is a non-white, or when the victim is white. In addition, although the U.S. Supreme Court held only a few years ago that it was unconstitutional to execute juveniles, people are increasingly concerned that we are executing people who are mentally retarded.  


Additional problems are seen when either the prosecutors or the judge on the case are up for election in the near future. Are the decisions about life or death being made for legal reasons, or for political ones? Many people are having second thoughts about these things and are beginning to believe that this is something that a civilized society should not be involved with.  


We are also more frequently seeing the phenomenon of the families of the victims speaking out publicly against the execution of the convicted perpetrator. One of these is a man named Bud Welch, whose daughter died at the hands of Timothy McVeigh in the bombing of the federal building in Oklahoma City. As Mr. Welch continued to think about the situation he stated publicly that he had come to two realizations. The first was that even after McVeigh would be dead that he himself would still not actually feel any better. And the second was that he decided that all of this rage and hatred against McVeigh in the name of his daughter was hardly a fitting tribute to her memory.  


Finally, there is the question of making a mistake. With the development of DNA evidence that is considered to be more than 99.9 percent reliable, programs like the “Innocence Project” have shown that more than 200 inmates have been falsely convicted for crimes they did not commit. And that includes 15 defendants that were sentenced to death. Of course, in many ways that can be turned into an argument in favor of future death penalty sentences where DNA evidence would be used to obtain the conviction. But increasingly people have been questioning the death penalty because of its inability to correct mistakes.  


We are human, and we can make mistakes. The largest number of false convictions are based upon false eyewitness identifications. Others come for various reasons based upon false confessions by the defendants or unreasonable appeals to the emotions of the jurors. So an increasing number of people are concluding that for many or all of the reasons that have been presented here it is unworthy for an enlightened society to involve itself in the killing of criminal defendants.  


In that regard, recently the legislature of the State of New Jersey passed legislation that was signed by the governor repealing the death penalty, which makes it the first state in several decades to do so. But several other states have imposed a moratorium upon its utilization until all of these issues can be studied further. In fact, this position has become so prevalent around the world that no country that imposes the death penalty is actually qualified to join the European Union.


So whether you believe that the death penalty is appropriate or not in theory, I believe the facts show unmistakably that the system is dysfunctional and that the laws are not working as intended. And as a practical reality, in today’s real world they cannot be made to work.


Accordingly, I have personally concluded that the families of the victims would be better served by its repeal; the huge amount of tax money would be better spent on improving our roads or paying the salaries of our police and firefighters; both the trial and appellate courts could better devote their resources and energies to address numbers of other issues in our society that are crying out for attention; and our country could rejoin most of the rest of the civilized world by repealing this practice. One way or the other everyone will benefit, because the system we have today is neither swift nor sure.  


So based upon my experience and observations, that is what I think. But what you think is more important, because the decision belongs to you.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.