New Times / Cover Story
The following articles were printed from New Times [newtimesslo.com] - Volume 27, Issue 7
Debating deathMany factors weigh on the future of capital punishment in California
BY MATT FOUNTAIN
Jeanne Woodford recalls with a furled brow and a slight grimace the four occasions she witnessed California’s harshest penalty carried out in front of her.
As warden of California’s only prison with a death row and an operational execution chamber, Woodford saw firsthand at San Quentin State Prison what she calls the waste of both human life and of valuable resources sorely needed in the ever-strapped criminal justice system.
“After an execution, you come to realize that you didn’t do anything to improve public safety. You just didn’t,” Woodford told New Times.
Speaking before a crowd of nearly 100 people on a Saturday night at San Luis Obispo Mission de Tolosa, Woodford was campaigning in support of Proposition 34—the initiative that asks voters to repeal the death penalty in California.
“I have observed victims’ families [following an execution], and you can just tell—it just didn’t provide the answers that people had been promising them,” Woodford said. “It’s very difficult to describe, but you would leave feeling, ‘What good did we do?’ It didn’t help anyone, didn’t improve public safety, and nobody’s better off because of it.”
Since the death penalty was reinstated in California in 1978, it’s cost taxpayers a reported $4 billion, Woodford said. Lacking any reforms, that figure could reach $9 billion by 2030, according to data compiled by the Death Penalty Information Center, of which Woodford is executive director.
On an issue that’s already spurred strong emotions on both sides of the debate, the mutual agreement is that the system is undeniably broken. But whether the system is beyond repair, or what possible remedies exist beyond a complete repeal of the death penalty, rests solely upon who you ask.
Redefining the ‘harshest’ sentence
California’s death penalty was first authorized for inmates in 1851, and until 1891 the state’s harshest sentence was initially dealt out at the county level, with the first man to die at the hands of the state in 1893 at San Quentin State Prison.
In 1937, the common practice of hanging inmates was replaced with the use of lethal gas.
But in 1972, the California Supreme Court ruled that the death penalty constituted cruel and unusual punishment under the state constitution, and 107 inmates had their sentences commuted.
In 1976, the California Supreme Court held that the state’s death penalty statute was unconstitutional under federal law, based on a United States Supreme Court decision earlier that year, because it failed to grant the condemned adequate opportunity to prove their innocence.
However, it was the Legislature that reenacted the death penalty with a referendum in 1977, changing the way the sentence was applied in cases where “special circumstances” existed in a murder case.
At the same time, the legislation established for the first time the sentence of life imprisonment without the possibility of parole. And although 1978’s Proposition 7 reintroduced the death penalty to California—and is the law we continue to use today—it wasn’t until 1992 that the next execution was carried out.
Since its reinstitution, 14 inmates have been executed on California’s death row. The most recent execution was in 2006.
Lethal injection replaced the gas chamber as the default method of execution in 1996, but since 2006, there’s been a moratorium on lethal injections until legal concerns regarding training, mixing, and administration of sodium thiopental are resolved.
If the history of capital punishment in California is rocky, one of the reasons is that the numbers don’t seem to add up. Since 1978, approximately 900 individuals have been sentenced to death. Of those, only 14 have been executed while 83 others have died of various causes prior to their execution. About 75 have later had their sentences reduced by the courts.
California currently has 725 inmates on death row, whose cases are currently at various stages of appeals and habeas corpus motions.
The money comes into play in all the security regulations and procedures that result in increased security costs for death row inmates. For example, inmates sentenced to death are assigned their own cell (as opposed to inmates in the general population who share a cell), must be handcuffed and accompanied by a guard whenever outside of that cell, and can request physical copies of any of their legal paperwork on any given day, creating a costly system.
According to the best estimates, when factoring in legal costs due to condemned inmates’ exhaustive appeals processes, California taxpayers foot a bill somewhere in the ballpark of $130 million annually to house the state’s death row inmates.
Proposition 34 seeks to change that.
According to SAFE California, the primary pro-34 organization, the initiative would completely repeal the death penalty and replace it with life imprisonment without the possibility of parole as the state’s harshest sentence possible.
Doing so would relieve the state of the “terrible” financial burden, ensure that inmates convicted of horrific crimes are never reintroduced to general society, and better benefit the victims’ families, Woodford said.
“People tend to think life without parole will cost taxpayers more in the long run than housing inmates on death row, and that just simply isn’t true—not by a long shot,” Woodford said.
What Proposition 34 would do, she explained, is allow the California Supreme Court to transfer its existing appeals caseload to the state’s Court of Appeals (all death row appellant cases currently must be heard by Supreme Court justices), require inmates to work while imprisoned and pay restitution to victims’ families, and establish a new special fund—$100 million over the first four years, presumably taken from the savings—to be disbursed via grants to local police departments and district attorneys offices for solving and prosecuting homicide and rape cases.
According to figures reported by SAFE California, but not independently verified by New Times, there were 12,396 unsolved homicides in California between 2000 and 2009—approximately 46 percent of all homicides in that period. Likewise, 56 percent of rape cases (52,777) in the same period have gone unsolved.
“The best way to prevent crime is to solve it, and when you have police forces taking cops off the street and not having the resources to solve these crimes, throwing money down the tube on [death row] makes no sense,” Woodford said.
A report by the non-partisan Legislative Analysts Office seems to agree that the measure would equal big savings to the state. According to the report, savings would be realized in county jails, because inmates would spend less time in those facilities while awaiting trial. The report estimates a savings of roughly $10 million annually on trial costs, and roughly $50 million annually on appellate litigation.
The office reported that the proposition could also provide for future prison facility construction, though that figure would vary depending on future population growth.
All told, the proposition is expected to save the state $100 million annually in the first few years, growing to $130 million annually thereafter.
Howard Jarvis Taxpayers Association Spokesman Kris Vosburgh said the association has taken no stance on the measure, and likely wouldn’t unless it included a tax increase.
The legislative analyst report does recognize that there would be an increase in the general population in state prisons; however, those costs would likely not be major, as they would be offset by not housing inmates on death row.
It also recognizes that the effect repealing the death penalty would have on incidences of murder remains unknown. This is one of the primary reasons law enforcement officials have decried the proposal, including two of San Luis Obispo County’s top law men.
A safer California?
District Attorney Gerry Shea, who has been San Luis Obispo County’s top prosecutor since 1998, has officially submitted his name in opposition to Proposition 34 on its main opponent’s website, Californians for Justice and Safety.
Not surprisingly, the law enforcement community is largely opposed to the proposition, including the California District Attorneys’ Association and the California Sheriffs’ Association.
Though he declined to discuss the deliberative process that goes into a death penalty case, or how the landscape of criminal proceedings changes once a possible death sentence is put on the table, Shea did say the death penalty is not something his office takes lightly.
“Seeking the death penalty for me is an extremely exceptional situation,” Shea said. “It’s not something that a prosecutor relishes pursuing.”
However, he argued that the circumstance is one that affords a defendant special due process, including not one, but two trials, one to establish guilt, and an automatic appeal.
One of the main arguments for the death penalty is that it’s a necessary deterrent to horrific crimes, although that’s never been evidenced either way.
“I think the death penalty in a certain limited subset can be actually a deterrent,” Shea said, though he admitted it probably doesn’t play a role in the typical barroom brawl or crime of passion. “Those which require logic, reflection. Logic tells me it can be a deterrent in those cases.”
SLO County Sheriff Ian Parkinson hasn’t officially put his name down in support or opposition of the measure, and told New Times he doesn’t have any plans to. He is, however, in support of his colleagues in the sheriffs’ association, which has come out swinging in opposition to the proposition.
“I fundamentally believe that the death penalty is something that I think we should have,” Parkinson told New Times. “But I am somewhat torn on it because it comes with a price. It’s a double-edged sword.”
Both Shea and Parkinson said there may be possible remedies beyond a full repeal of capital punishment that could include the Legislature streamlining the appeals process, but neither offered any specifics.
“But I don’t think what’s being proposed is the answer,” Parkinson said. “I just don’t think it’s as simple as that.”
Even the Democratic California Attorney General, Kamala Harris, who has long expressed her personal opposition to the death penalty, is staying out of the fray, according to her press secretary Lynda Gledhill.
One of the moral arguments against the death penalty is that it causes the families of the victims unnecessary hardship; that they must repeatedly relive the crime as the inmate spends decades going through the appeals process.
But that’s not how Marc Klaas sees it. Klaas founded the KlaasKids Foundation in 1994 following the murder of his 12-year-old daughter, Polly Klaas. The murderer, Richard Allen Davis, remains on death row in San Quentin.
Klaas told New Times in a phone interview that he never intended to be a spokesman for the No on Prop. 34 campaign. But following his numerous appearances on television and radio advocating for his foundation, he’s become a voice for families of child victims and an advocate for increased safety resources for children.
Klaas said he agrees that the death penalty is drawn out and costly, but he takes comfort in knowing his daughter’s killer is in isolation on death row, facing a certain fate, and Klaas is not concerned with Davis’ appeals process.
“Let’s be clear here: It’s not like he’s getting a lot of court dates,” Klaas said. “Davis has only had one appeal so far. If he has another one, then so be it. You deal with it.
“Believe me,” Klaas added, “the sentence handed down is more in the forefront of the victim’s family’s mind than [how much it costs].”
Furthermore, Klaas said groups who have dedicated their time to fighting capital punishment have actually created much of the problem, establishing an appeals process that drags on.
“These people are beautiful in being able to put something forth on the ballot that uses all of the hindrances they created as justification to get what they want. It’s one of the most cynical things I’ve ever seen,” Klaas said. “Whatever the most extreme form of punishment is, there will always be a lobby of people saying it’s too extreme.”
Support from an unlikely source
Though most of the proposition’s supporters who talked to New Times for this article did say they’re morally opposed to taking another human’s life, the Yes on Prop. 34 campaign is—perhaps wisely—attempting to appeal to taxpayers’ wallets.
Support for Proposition 34 is coming from the legal community, the Catholic Church, the California Democratic Party, and the American Civil Liberties Union.
As of Sept. 8, supporters have poured nearly $5.5 million into the initiative; the largest donors include Hyatt Development Corp. CEO Nicholas Pritzker, the Atlantic Advocacy Fund, the ACLU of Northern and Southern California, as well as celebrity donors such as Netflix CEO Reed Hastings and singer Jackson Browne, according to the secretary of state website.
Opposition, on the other hand, has raised just more than $200,000 from organizations such as the political action committee for the Peace Officers Research Association of California, the Kern County Prosecutor’s Association, and the Sacramento County Sheriff’s Association.
San Luis Obispo County currently has four former residents on death row, and a defendant in an ongoing local trial is facing a possible death sentence. Ty Michael Hill, 29, of Santa Maria is facing felony murder and kidnapping charges related to his alleged role in the 2010 death of 15-year-old Dystiny Myers.
Ray Allen was the original defense attorney assigned to Hill prior to prosecutors pursuing the death penalty. The San Luis Obispo-based attorney was replaced shortly thereafter, based on a requirement that says defense attorneys in a capital case must have a degree of experience to represent defendants facing the death penalty. Allen didn’t qualify.
Allen, who has represented cases involving the “Three Strikes” law, has also voiced to New Times his longstanding opposition to the death penalty on moral grounds, but added that there are other inequities involved in the death penalty, certain factors that play against a defendant from the get-go.
In death penalty cases, jurors must not be opposed to capital punishment before they can sit on a jury. This, Allen said, already makes defending a client something of an upward battle.
“This may be generalizing terribly, but at that point, [jurors] are already right-of-center and that can make it more difficult to get a fair trial,” Allen said.
Even the California Academy of Appellate Lawyers—the same appellate lawyers the opposition to Proposition 34 says stand to profit most from the current system—has come out in support of the measure, according to academy spokesman Jan Chilton.
“It is ridiculously drawn out,” Chilton said. “What else strikes me, however, is how greatly these death penalty appeals interfere with the Supreme Court’s ability to deal with other issues that greatly affect society as a whole.”
According to data compiled by SAFE California, roughly 30 percent of California’s Supreme Court justices’ time is devoted to death row appeals.
“It’s horrible. They could be caught up on their dockets if the court of appeals heard these cases,” Chilton said.
But perhaps the biggest surprise endorsement of Proposition 34 is a two-term Republican county supervisor from conservative-leaning rural El Dorado County, east of Sacramento. Ron Briggs was a pivotal figure in getting the original Proposition 7—which reinstated the death penalty—before voters in 1978.
Today, Briggs, a self-described “staunch conservative,” has publicly admitted that the move was a “big mistake.”
It was 1977, and Briggs and his father—a former state senator—and his brother-in-law—now a judge—decided the death penalty as it was then needed to be broadened so prosecutors would have more tools at their disposal to convict murderers. They drafted the current mandate, which was passed by voters in 1978.
Since then, Briggs said, he and his family have come to see how their initiative engorged death row and did nothing to empty it.
“We didn’t anticipate this at all,” Briggs told New Times. “But I have every confidence in the system’s ability to put these people away for life without the possibility of parole. One trial, one appeal—that’s it.
“Right now,” he said, “we’re spending millions of dollars a year, and the only ones getting the money are the inmates and the lawyers.”
* * *
Then there’s Franky Carrillo.
Never has any evidence emerged that California’s 14 inmates executed since 1994 were anything but guilty of their crimes. But that’s not true for other states. And California has been known to convict and lock away its share of innocent men.
At age 16, Carrillo was falsely convicted of a homicide in Los Angeles Superior Court in 1991, based on six witnesses’ testimony identifying Carrillo as the killer. He received multiple life sentences. Since then, all six witnesses have admitted they never actually saw Carrillo and that their testimony had been influenced by overzealous investigators. Two men had also admitted to the shooting and acknowledged that Carrillo was not involved.
“Always at the forefront of my mind was that I truly did believe in the system,” Carrillo told New Times in a phone interview. “I truly believed they had made a mistake and that any day it would correct itself.”
It took nearly two decades, but Carrillo “chipped away” at his case, ultimately attracting the help of attorneys from the Northern California Innocence Project.
“You just can’t escape the fact that you don’t belong there,” Carrillo said.
He was exonerated in March.
But Carrillo told a New Times reporter that it’s a case from Texas that gives him pause. In 1989, a young Hispanic man, Carlos DeLuna, was executed for a crime which evidence—later uncovered by students at the Columbia Human Rights Law Review some two decades after his execution—proved he didn’t commit.
The men shared striking similarities: They were both Latino, low-income, young men convicted in cases of mistaken identity. The difference, however, is that DeLuna was sentenced to death.
“You can’t rule out that other people in there are in the same situation I was in,” Carrillo said.
According to Paul Cates, communications director for the nonprofit Innocence Project, which uses DNA evidence to prove the innocence of the wrongly convicted, 17 people across the country have been proven innocent and exonerated after serving time on death row in 11 states.
Law enforcement officials and Proposition 34 opponents contend that many of those cases predate DNA evidence, and that technology these days is far more accurate.
“If these guys want to pretend that our prisons are filled with innocent people, they might as well be selling you the Brooklyn Bridge,” Marc Klaas noted.
“If even one [person on death row] is innocent, I think it would be worth it to keep them all alive,” Carrillo argued.
Today, Carrillo, 38, is a full-time law student at Loyola Marymount University, who volunteers his time with SAFE California and has a civil restitution claim pending with the State of California.
“All wrongful convictions are tragic,” Carrillo said. “But with the death penalty, that tragedy is irreversible.”
A lot to mull over
In a presidential election year, when Californians have no less than 11 propositions to decide on, it’s difficult to determine whether voters will be receptive to repealing the death penalty.
According to former warden Woodford, preliminary polls have shown that Proposition 34 enjoys a slim majority of support from responders who had researched the measure—but it’s a pretty thin margin.
Two other law enforcement-related propositions are also on the ballot, including harsher penalties for people convicted of human trafficking and a revision of the state’s controversial Three Strikes law.
Supporters also note the inverse-nature of the measure’s wording may trip voters up.
“I hope everyone looks at this really carefully and keeps the victims’ families in these cases in mind,” SLO County D.A. Shea told New Times.
“Those opposed [to the death penalty] have done an excellent job in reversing the conversation and manipulating people,” Klaas said. “But I think if people are aware of the facts, there’s no doubt in my mind [Proposition 34] will fail.”
“These issues, we—rightly so—get very emotional about,” Woodford said. “But public policy shouldn’t be about emotion. It should be about what works.”
“I know this is a very emotional topic,” the exonerated Carrillo said. “But I think voters are intelligent and will make the right call.” ∆
Staff Writer Matt Fountain can be reached at firstname.lastname@example.org.
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