EXECUTING THE WILL OF THE VOTERS?: A ROADMAP TO MEND OR ...
EXECUTING THE WILL OF THE VOTERS?:
A ROADMAP TO MEND OR END
THE CALIFORNIA LEGISLATURE¡¯S
MULTI-BILLION-DOLLAR
DEATH PENALTY DEBACLE
Judge Arthur L. Alarc¨®n* & Paula M. Mitchell**
Since reinstating the death penalty in 1978, California taxpayers
have spent roughly $4 billion to fund a dysfunctional death penalty
system that has carried out no more than 13 executions. The current
backlog of death penalty cases is so severe 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. Despite numerous warnings
* Senior Judge, U.S. Court of Appeals for the Ninth Circuit. Over the course of his legal
career, he has participated in every aspect of death penalty cases. As a Los Angeles County
Deputy District Attorney, he prosecuted persons accused of first degree murder in which the
death penalty was sought. As the Legal Advisor to Governor Edmund G. ¡°Pat¡± Brown, he was
responsible for conducting investigations to assist the Governor in deciding whether to grant a
commutation of the sentence of death row inmates to life imprisonment. As Chairman of the
Adult Authority (California Parole Board for Adult Men), he reviewed applications for release on
parole from prisoners convicted of murder in the first degree and other felonies. As a Los Angeles
County Superior Court judge, he presided over first degree murder trials in which the prosecution
sought the death penalty. As an Associate Justice of the California Court of Appeal, he reviewed
judgments of trial courts in first degree murder cases of prisoners who were sentenced to life
without the possibility of parole. As a member of the United States Court of Appeals for the
Ninth Circuit, he has reviewed decisions of federal district courts that granted or denied the
habeas corpus petitions of California death row inmates.
** Adjunct Professor of Law, Loyola Law School Los Angeles, Habeas Corpus and
Prisoner Civil Rights Litigation; J.D., 2002, Loyola Law School Los Angeles; M.A., 1989, The
London School of Economics and Political Science; B.A., 1987, University of Massachusetts,
Amherst. She has practiced in major law firms in both New York and Los Angeles, focusing on
high-stakes litigation and appeals, in both federal and state courts. As a law clerk for Senior Judge
Arthur L. Alarc¨®n, she has reviewed numerous ¡ì2254(a) habeas corpus petitions filed by
California state prisoners in the Eastern District of California, and has participated in the appellate
review of matters pending before the Third, Fourth, Sixth, Ninth, Tenth, and Eleventh Circuits.
She would like to thank Elizaveta Kabanova, Molly Karlin, Kathryn Lohmeyer, and Tara
Mitcheltree, for their energetic, thoughtful, and conscientious contributions to the research and
preparation of this Article.
S41
S42
LOYOLA OF LOS ANGELES LAW REVIEW
[Vol. 44:S41
of the deterioration of California¡¯s capital punishment system and its
now imminent collapse, the Legislature has repeatedly failed to enact
measures that would improve this death row deadlock. At the same
time, voters have continued to expand the death penalty through the
direct voter initiative process to increase the number of death-eligible
crimes.
This Article uncovers the true costs of administering the death
penalty in California by tracing how much taxpayers are spending for
death penalty trials versus non¨Cdeath penalty trials and for costs
incurred due to the delay from the initial sentence of death to the
execution. In addition, the Article examines how the voter initiative
process has misled voters into agreeing to the wasteful expenditure of
billions of dollars on a system that has been ineffective in carrying out
punishment against those who commit the worst of crimes. Our
research reveals that in every proposition expanding the list of deatheligible crimes between 1978 and 2000, the information provided by the
Legislative Analyst¡¯s Office in the Voter Information Guides told voters
that the fiscal impact of these initiatives would be ¡°none,¡± ¡°unknown,¡±
¡°indeterminable,¡± or ¡°minor.¡± Relying, at least in part, on this
information, Californians have used the voter initiative process to enact
¡°tough on crime¡± laws that, without adequate funding from the
Legislature to create an effective capital punishment system, have
wasted immense taxpayer resources and created increasingly serious
due process problems.
Finally, this Article analyzes corrective measures that the
Legislature could take to reduce the death row backlog, and proposes
several voter initiatives that California voters may wish to consider if
the Legislature continues to ignore the problem. It is the authors¡¯ view
that unless California voters want to tolerate the continued waste of
billions of tax dollars on the state¡¯s now-defunct death penalty system,
they must either demand meaningful reforms to ensure that the system
is administered in a fair and effective manner or, if they do not want to
be taxed to fund the needed reforms, they must recognize that the only
alternative is to abolish the death penalty and replace it with a sentence
of life imprisonment without the possibility of parole.
SPECIAL ISSUE]
EXECUTING THE WILL OF THE VOTERS?
S43
TABLE OF CONTENTS
INTRODUCTION ................................................................................. S46
OVERVIEW ........................................................................................ S48
I. BULLDOZING BARRIERS AND UNEARTHING HIDDEN COSTS:
HOW MUCH ARE CALIFORNIA TAXPAYERS REALLY PAYING
FOR THE STATE¡¯S ILLUSORY DEATH PENALTY? ..................... S62
A. Cost Study: California¡¯s Death Penalty Is a $4 Billion
Capital Blunder ............................................................... S65
1. Death Penalty Pre-Trial and Trial Costs: $1.94
Billion ........................................................................ S69
2. Automatic Appeals and State Habeas Corpus
Petitions: $925 Million .............................................. S79
a. California Supreme Court ..................................... S80
b. Habeas Corpus Resource Center .......................... S86
c. Office of the State Public Defender ......................S87
d. Office of the California Attorney General ............ S87
3. Federal Habeas Corpus Petitions: $775 Million ........ S88
a. Data from district court closed cases: CJA
Panel attorney representation costs $635,000
per case on average .............................................. S93
b. Data from Defender Services: FPD CHU
representations cost $1.58 million per case on
average .................................................................S94
4. Costs of Incarceration: $70 Million Per Year; $1
Billion Since 1978 ..................................................... S99
a. Construction of a new Condemned Inmate
Complex (CIC): $1.2 billion for first 20 years ... S100
b. Incarcerating inmates on death row: $1 billion
since 1978........................................................... S102
5. The Present Administration of California¡¯s Death
Penalty: A Complete Failure ................................... S109
II. PAVED WITH GOOD INTENTIONS: THE LEGISLATIVE HISTORY
OF THE DEATH PENALTY IN CALIFORNIA .............................. S111
A. Direct Democracy .......................................................... S111
B. Understanding the Voter Initiative Process in
California ...................................................................... S113
1. Distinguishing Features of California¡¯s Initiative
Process .....................................................................S115
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LOYOLA OF LOS ANGELES LAW REVIEW
[Vol. 44:S41
a. Frequent amendment of the California
Constitution through the initiative process
creates ¡°perpetual instability¡± ............................S116
b. No subject-matter restrictions on California
initiatives ............................................................S123
c. No amendment or repeal by Legislature ............. S124
d. The sheer volume of voter initiatives in
California............................................................S127
2. Death Penalty Initiatives in California ..................... S131
a. The 1972 initiative amending the California
Constitution ........................................................ S131
b. The 1973 statute: Introduction of 10 ¡°special
circumstances¡± ................................................... S132
c. The 1977 statute: 12 more death-eligible
crimes ................................................................. S135
d. The 1978 Briggs Initiative: Proposition 7¡ª16
more special circumstances, 28 death-eligible
crimes ................................................................. S138
e. The 1990 initiatives: Propositions 114 and
115¡ªFive more special circumstances, 33
death-eligible crimes .......................................... S143
f. The 1996 initiatives: Propositions 195 and
196¡ªThree more special circumstances, 36
death-eligible crimes .......................................... S146
g. 1999: Proposed initiative to abolish the death
penalty ................................................................ S151
h. The 2000 Initiatives: Propositions 18 and 21¡ª
Three more special circumstances, 39 deatheligible crimes .................................................... S156
3. Cumulative Effect of Death Penalty Initiatives:
What the Voters Were and Were Not Told ............. S158
III. HAZARDOUS CONDITIONS AHEAD: POTENTIAL STATE AND
FEDERAL CONSTITUTIONAL ISSUES ARISING OUT OF
CALIFORNIA¡¯S CURRENT DEATH PENALTY SCHEME ......S160
A. Is the Current Death Penalty Scheme What California
Voters Intended? ........................................................... S161
B. Have California¡¯s Death Penalty Laws Created ¡°an
Impermissible Impairment of ¡®Essential Government
Functions¡¯¡±? .................................................................. S163
SPECIAL ISSUE]
EXECUTING THE WILL OF THE VOTERS?
S45
C. Is the Denial of Due Process Ever Cruel and
Unusual?........................................................................ S171
1. Direct Appeal ........................................................... S171
2. Federal Habeas Corpus Proceedings ........................ S171
D. Is Our View of the Worst of the Worst Overbroad? ...... S179
IV. THE ROAD NOT TAKEN: REMEDIES REVISITED ........................ S184
A. Automatic Review by the California Court of Appeal .. S187
B. State Habeas Petitions Filed First in the Trial Courts .... S189
C. Increase Funding for Capital Appellate and Habeas
Counsel ......................................................................... S191
1. Direct Appeals ......................................................... S191
2. State and Federal Habeas Corpus: The Need for
Continuity of Counsel.............................................. S193
D. Roadblocks, Detours and Dead Ends: The
Legislature¡¯s Failure to Repair the System ................... S200
E. Alternate Routes Available: When Legislatures Lead
and Governors Govern¡ªInvestigation and Public
Debate Concerning the Cost of the Death Penalty in
Other States ................................................................... S206
1. New Jersey ............................................................... S207
2. New Mexico .............................................................S208
3. Maryland .................................................................. S209
4. Illinois ...................................................................... S210
V. ROADMAP FOR REFORM ............................................................ S212
A. Propositions 1 and 2: Reform the Death Penalty But
Leave Its Current Scope Unchanged............................. S213
B. Propositions 3 and 4: Reform the Death Penalty by
Narrowing the Number of Death-Eligible Crimes ........ S218
C. Proposition 5: Abolish the Death Penalty and Replace
It with the Punishment of Life Imprisonment Without
the Possibility of Parole ................................................ S221
VI. CONCLUSION ........................................................................... S223
................
................
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