Commission recommends major reforms to California death penalty system

California's death penalty system is costly, ineffectual, and on the verge of collapse, according to a just-issued report of the California Commission on the Fair Administration of Justice.

California has the longest delays in executions of any state. Of the 813 people sentenced to die since the death penalty was reenacted in 1977, only 13 have been executed. That's fewer than have killed themselves (14) or died of natural causes (38). Despite the fact that death verdicts are decreasing (last year, only 20 people were sentenced to death in the populous state), the number of people awaiting execution is at an all-time high of 670. The logjam is so great that "California would have to execute five prisoners per month for the next 12 years just to carry out the sentences of those currently on death row," the Commission stated.

A major reason for the long delays is a shortage of competent attorneys at every stage of the process. A condemned prisoner sits on death row for 3 to 5 years before getting a lawyer, waits another 2 years before his first, "automatic" appeal is heard by the state Supreme Court, and waits more years before getting state habeas counsel (291 inmates don't have that attorney assigned yet). That's before even reaching the federal level, where more delays ensue at every stage.

To address the attorney shortage, the Commission is recommending big increases in the stable of state Public Defenders and attorneys at the California Habeas Corpus Resource Center. Such massive funding increases are unlikely, in my opinion, given the current budget crisis and the national trend of slashing defense expenditures (see my June 26 blog post.)

The Commission also recommends more funding at the trial level. The report points out that most death penalty verdicts are getting overturned by federal courts, causing expenditures for costly retrials. The leading cause of such reversals is trial attorneys' failure to adequately investigate potential mitigating evidence, as required under Wiggins v. Smith (539 US 510, 2003).

Part of the reason for that abysmal record, according to the Commission, is that many counties are paying private attorneys a flat fee. This discourages them from hiring investigators and expert witnesses, because the money comes out of their own pocket. The Commission urged the state Supreme Court to increase funding for privately appointed lawyers so that they are paid enough to ensure "high quality legal representation" and so that they obtain the necessary expert services.

The Commission's recommendations to pour massive additional funding into a faulty system are sure to be controversial. The Commission mentions less costly alternatives, including getting rid of the death penalty altogether (as some other states have done) or at least reducing its scope so that only the "worst of the worst" are eligible.

One very sound recommendation is to eliminate felony murder as grounds for death. (see the New York Times editorial by Adam Liptak, "American Exception: Serving Life for Providing Car to Killers," for an excellent discussion of the felony murder rule.)

Narrowing the death penalty's scope to five especially heinous grounds would reduce the current death row population to 368, the Commission said.

The comprehensive report also addresses geographic variations in death penalty implementation. Researchers have found that rural counties in California with high proportions of whites impose death at a higher rate, and - perhaps not coincidentally - people who kill African Americans are less likely to receive the ultimate punishment.

The Commission, created in 2004 to recommend reforms to make the state's criminal justice system fairer, heard from 72 witnesses over a six-month period. In addition to the majority recommendations, the downloadable, 145-page report contains dissenting statements from police and prosecutor members as well as a call for death penalty abolition by commission members from the defense bar.

The Commission is composed of law enforcement, prosecutors, defense attorneys, judges, and citizens. It has already issued a series of unanimous recommendations on other criminal justice issues, including eyewitness identification, false confessions, jailhouse informants, scientific evidence, and wrongful conviction remedies. (See my previous blog post (here) for links to those reports.

San Francisco Chronicle coverage of the report is here. The American Bar Association's study on the death penalty in eight states is here. Critical analysis of the U.S. death penalty by Time and Newsweek magazines are here and here.