California's Dysfunctional Death Penalty Can't Be Fixed

California's death penalty scheme is a costly government program that doesn't work.  The approximately 750 men and women on death row are far more likely to die of natural causes than be executed.  Their legal claims, if considered at all, take roughly three decades to resolve, an excruciatingly long period of time that is due to the inherently dysfunctional nature of the process and not, as is commonly believed, from frivolous claims raised by zealous lawyers taking advantage of the process.

Paula Mitchell, a professor at Loyola Law School, recently published an article, Frivolity and the Death Penalty, demonstrating that the inordinate delay in death penalty cases is in large part caused by the adversarial nature of the system itself where "prosecutors . . .  typically do everything within their power to forestall or prevent discovery in post-conviction investigations, which is often what is needed during the appeals process to ensure that everyone has been playing by the rules."

Professor Mitchell's piece focuses on the Georgia case recently argued in the U.S. Supreme Court involving the prosecutor's use of juror challenges to strike all the African Americans from serving on the jury. As Mitchell explained, the case took close to thirty years to be heard because of the resistance of the prosecution to provide their files -- files which, when finally handed over twenty years after trial, appear to undermine the race-neutral reasons that were originally proffered for striking the jurors. 

The obstacles to obtaining critical information about the homicide, the police investigation and the trial from the prosecution (as well as from law enforcement) is certainly not unique to Georgia. Take Kenneth Clair, an African American languishing on death row for an Orange County murder that took place in 1984, where the lone eyewitness claimed the killer was white.  More than 30 years later, his lawyers are still fighting to obtain evidence in possession of the prosecution, including DNA results that could establish the identity of the actual perpetrator.

Delay caused by the resistance from prosecutors comes not only from their multi-faceted attempts to deny or at least narrow the requests for their files.  The California Attorney General also relies on a remarkably Byzantine post-conviction process, using every possible procedural loophole to avoid litigating the cases on their merits that results in years and years of delay.

For example every claim raised in post-conviction must be "exhausted' in state court before it can be presented in a habeas corpus petition in federal court.  However, the California Supreme Court is notoriously stingy when it comes to funding investigation and expert assistance so that it is often only once a case moves from state court into federal court that attorneys are able to develop critical evidence.  But if a federal claim includes even one newly discovered fact to strengthen it, the AG will insist that the case return to state court for exhaustion purposes rather than litigate the claim's underlying merits.  Then, after such claims are denied in state court -- which eventually and inevitably they are -- and the case returns to federal court, the AG will launch a new series of procedural arguments having nothing to do with the claim's substance as a basis for dismissal.

This is just one example of the countless ways the prosecution uses extremely complicated provisions to endlessly litigate procedural issues that have nothing to do with the ultimate issues of the case.  And because of this complexity and the many pitfalls waiting for an unwary attorney -- deadly pitfalls which can lead to the wholesale waiver of critical claims -- only attorneys with specialized knowledge and experience can be qualified to represent death row inmates on appeal and in post-conviction habeas proceedings.  But given the extensive training needed, the decades-long commitment, the stressful and high-stakes nature of litigating life and death issues, and the intensity of having to identify every potentially viable claim while struggling to obtain adequate funding, there is hardly a plethora of attorneys willing and, more importantly, able to do so.  And most of those who are willing and able already represent several of the vast number of inmates already on death row and are understandably reluctant to take on any more cases. 

This provides an additional basis for delay.  Indeed, after an inmate is sentenced to death in California it takes more than five years to find a qualified lawyer to handle the appeal (involving issues that arise from the trial itself) and several more years to find one to handle the habeas corpus proceedings (involving issues that must be independently and painstakingly investigated). 

Professor Mitchell, it should be remembered, co-authored a ground-breaking study in 2011, concluding that California's death penalty system was costing the state about $184 million per year.  The study found  that "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."  A year later, an updated study revealed that "if the current system is maintained, Californians will spend an additional $5 billion to $7 billion over the cost of [life without possibility of parole] to fund the broken system between now and 2050. In that time, roughly 740 more inmates will be added to death row, an additional fourteen executions will be carried out, and more than five hundred death-row inmates will die of old age or other causes before the state executes them."

Delay is an inherent part of capital litigation.  For the foregoing reasons and particularly in California, where virtually every homicide is eligible for the death penalty -- resulting in the largest death row in the country -- a fair, just and reliable review of death sentences is incompatible with a speedy, expedited process. 

California's death penalty can't be fixed; but it can be replaced with life without possibility of parole ("LWOP").  An initiative to do just that - - and that would require defendants sentenced to LWOP to work in prison, with 60% of their wages going to victim restitution -- may be headed for the ballot in 2016.  A Legislative Analyst's Office has determined that replacing the death penalty with LWOP would save California $150 million a year, by reducing the costs of trials and subsequent appeals.

On the other hand, a pro-death penalty group calling itself Californians for Death Penalty Savings and Reform has proposed its own ballot measure that clumsily attempts to solve the system's intractable problems without dealing with any of the root issues.  It would expand the pool of attorneys available to represent death row inmates and decentralize and streamline the process once attorneys are assigned.  Nothing in the proposal would provide funding to train this new group of lawyers.  And the so-called streamlining would not ease the procedural quagmire that causes so much of the delay.  Nor would it address the prosecution's resistance to providing its trial files.  What it would do is shorten the time to investigate and present claims, and limit possible avenues of revenue.  It thus promises to speed things up while providing less review and less skilled and experienced lawyers to navigate an impossibly complex process.  What could go wrong?