But what about the reasons for maintaining it? As David Garland explains in his remarkable book, Peculiar Institution, capital punishment was initially seen as an essential instrument of state power by emerging, fragile governments and used ritualistically and brutally against perceived enemies of the state. Once nations achieved more legitimacy and stability, executions were used primarily as a means of crime control due in large part to the absence of an established prison system or extensive police force. With the development in the 19th Century and early 20th Century of a criminal justice apparatus, including police, courts and penitentiaries, the death penalty was no longer penalogically necessary either.
By the 1970s, it was clear, as Garland points out, that the death penalty was not an effective crime-fighting tool and its deterrent effect was uncertain at best. (It has long been true that the states with capital punishment also have the most crimes of violence.) Nevertheless, in 1976, when the United States Supreme Court upheld the constitutionality of the death penalty, it cited deterrence as well as retribution as the penalty's two worthy social goals. Whether these were ever legitimate bases for imposing the death penalty, however, they surely have become meaningless in today's system in which crime and ultimate punishment are so far removed from each other.
In California, there are over 720 men and women on death row. No executions have taken place since 2006, and there have been a total of 13 executions since the death penalty was reinstated in 1977. It takes over five years for a condemned inmate to get a lawyer to handle his appeal, and cases take up to thirty years to be resolved. As the California Commission for the Fair Administration of Justice concluded after its extensive review in 2008 of the state's death penalty system, death sentences are unlikely ever to be carried out (with extremely rare exceptions) because of a process “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the California Supreme Court's review of death judgments. According to CCFAJ's report, the lapse of time from sentence of death to execution constitutes the longest delay of any death penalty state.
With such long delays plaguing a dysfunctional system, any retributive or deterrent effect certainly loses its force. In a case the U.S. Supreme Court did not take up, involving the constitutionality of executing someone who had been on death row for 17 years, Justice John Paul Stevens wrote a memorandum in which he noted that "after such an extended time, the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted," and that "the additional deterrent effect from an actual execution now, on the one hand, as compared to 17 years on death row followed by the prisoner's continued incarceration for life, on the other, seems minimal."
But despite the passage of time, aren't there some crimes that are so grievous that only the death penalty is an adequate response? Unfortunately, the system is not able to meaningfully distinguish who among capital defendants are most deserving of the death penalty. California's statute was specifically designed to encompass virtually every kind of murder -- including felony-murder (i.e. when someone dies during the course of a robbery, burglary or certain other specified felonies; intent to kill is not required). As a result, we have the largest death row in the country, which includes hundreds of condemned inmates who may be responsible for causing the deaths of others and who should be punished but who cannot be categorized as "the worst-of-the-worst."
Furthermore, the death penalty is so arbitrarily applied that the location of the murder, race, gender and ethnicity, the proclivities of the individual prosecutor and/or the skill of defense counsel are far more likely indicators of who will get death than the circumstances of the crime. (As legendary capital defender Steve Bright has said, the death penalty is often reserved for the case with the worst lawyer not the worst crime.)
What about closure for the victims' families? It is hard to imagine that families would not be better served if the killer of their loved ones was given a life sentence rather than being dragged through decades of appeals and hearings while they wait for an execution that is unlikely to take place. Members of California Crime Victims for Alternative to the Death Penalty, a coalition of families, friends, and loved ones of murder victims, supports alternatives to the death penalty and understand that, as one of its members, Judy Kerr wrote, "the death penalty is a failed policy which strips away funding from solving cold cases, victims services and crime prevention."
Which brings us back to crime fighting and public safety. Jeanne Woodford, the former warden of San Quentin State Prison, who presided over four executions, and is now executive director of Death Penalty Focus, says that after each execution someone on the staff would ask, "Is the world safer because of what we did tonight?" As she writes, "We knew the answer: No."
An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year. Further, "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." Meanwhile, 46% of murders and 56% of rapes go unsolved in California every year.
Prosecutors argue that having the death penalty is a critical plea bargaining chip that they use to secure life without parole sentences. Putting aside the morality of using the threat of death to extort a lesser sentence, this argument has nothing more than facial appeal. The data does not support the oft-repeated proposition that the threat of a death sentence has resulted in more pleas to life without parole. There have been cases, however, where the fear of a death sentence has led otherwise innocent defendants to give up their rights to trial and plead guilty to obtain a lesser punishment.
Thus, not only are the historical justifications for the death penalty obsolete, but it has become increasingly clear that none of the contemporary pro-death arguments stand up to scrutiny either. Capital punishment is not a productive tool for fighting crime and, indeed, undermines public safety by draining needed resources for more effective methods. Even the more visceral needs such as revenge and retribution, as well as the desire for closure, are not satisfied by a broken system in which those sentenced to death will most likely never be executed.
Over the last several decades the death penalty has served no useful purpose except to provide politicians with a potent symbol to prove their "tough on crime" bona fides (although as the last election demonstrated, even that old trope no longer works). Replacing it with life without parole would far better address many of the issues commonly raised by death penalty proponents, including fiscal concerns, safety, and victims' rights.
The SAFE California Act will soon qualify to be on the November 2012 ballot. If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund. It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.
Many people who have devoted their lives and careers to law enforcement, public safety and victims' rights support this measure, including former warden Jeanne Woodford, former Los Angeles D.A. Gil Garcetti, Supervisor Ron Briggs whose family created the current death penalty law, and Don Heller, who wrote it. They have come to realize that the death penalty is counterproductive, that the old arguments in favor of its continued use no longer apply, and that the time has come to replace it.
Click here for more information on the SAFE California campaign and on how you can join the effort to replace the death penalty and enhance our personal and public safety.
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