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.

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[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.

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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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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

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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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