Two For The Road ... Sunday

Two apparently unrelated news stories about the death penalty should raise new doubts about its viability. But probably won’t.

The LA Times reminded us that one of the reasons for the lengthy delays between trial and execution is the lack of available and competent appellate lawyers willing to commit to pressure packed habeas corpus representation.


Paranoid prosecutors whine about a conspiracy of defense lawyers who raise multiple issues merely to cause delays. Noting that other states don’t seem to have problems finding defense lawyers, outgoing California Supreme Court Chief Justice Ronald George explains that California’s standards of legal ethics and competence are just a bit higher than those of Texas, Florida and the several other states that rush to executions.

The fact that DNA as well as otter revelations (such as the defects in arson expertise) have proven (yes proven beyond any doubt) that many (not some, many) innocent people have been executed because of the insistence on speedy results rather than correct justice.

The New York Times previews a coming article in the New York Review of Books written by retired US Supreme Court justice John Paul Stevens, who expresses his regret about his votes to uphold the death penalty and his revised opinion that the punishment is unconstitutional. He had voted to uphold it because he thought procedures could be devised which would insure its fair application. He no longer believes that. He cites later opinions by the shifting majorities on The Court that undermined he faith in the law’s ability to devise fair procedures.

From the prosecutoria decision to seek death to jury selection to victim impact testimony to sentencing and appellate review, he concludes that the entire system of capital justice to be fatally flawed. 

Justice Stevens was interviewed for CBS's "60 Minutes" to be aired tonight (Sunday, November 28, 2010).

If there is to be an educated and informed electorate to decide things like capital punishment, these are the facts that need to be exposed.

Sunday News Roundup

After California Supreme Court Chief Justice Ron George announced his retirement, Governor Schwarzenegger nominated Appellate Court Justice Tani Cantil-Sakauye to replace him. She would be the first Asian (Filippino) woman in that post. What else we know about her doesn’t yield great optimism that she will improve the reputation of the court, which has lost most of its luster since the great days of CJ Roger Traynor in the 1960's and Don Wright in the 1970's.

After the massacre of Rose Bird and three other justices in the 1980's, the court swung to the Right and has stayed there under a succession of conservative Republican governors and a spineless nominal Democrat, Gray Davis. Justice Cantil-Sakauye, married to a retiring Sacramento Police lieutenant, was appointed to the bench and elevated by all the Republican governors since 1990.

Meanwhile the NY Times produced a lengthy analysis of the US Supreme Court and reached the startling conclusion that since CJ Roberts, it has become more conservative. They included a timeline that tried to fit appointees into slots between left and right ideologies, concluding that five of the ten most conservative justices on the court since 1937 are serving today: Thomas, Alito, Scalia, Roberts, Kennedy. How conservative is this group? All are rated further to the right than Justice McReynolds who refused to speak or have pictures taken with Jewish Justice Brandeis, and voted to upset all of FDR’s New Deal programs.

The NY Times Book Review includes interesting reviews of books about the Dreyfuss Affair, English novelists W. Somerset Maugham and E. M. Forster, and diplomat and political theorist George F. Kennan.

Last week, the sports pages were preoccupied with an issue that occasionally but persistently rears its ugly head and scares the hell out of the big big business of big time college sports.
A few stories coincidentally brought the oily mess to the surface. USC was drilled by the NCAA for violations relating to illegal payments given to sports stars in their football (Reggie Bush), basketball (O.J. Mayo) and womens’ tennis (?) programs. The second incident related to a number of investigations being conducted about similar violations in several other universities in the SEC. Some coaches, who were blamed for failing to enforce the rules blamed the agents, who they likened to pimps soliciting and corrupting their players (who I guess would be the whores?).

The background of this latest controversy is this. First, college sports business is big business. Billions are earned by the universities from television contracts, merchandising, etc, which the CEO’s of these institutions of higher learning claim are needed to support all the other sports programs that suck money from the schools (like Title Nine womens sports programs) which would sink otherwise.

Second, the competition for first rate “student-athletes” is cutthroat, leading to recruiting of players who not only wouldn’t otherwise qualify as “students” but would really prefer to go straight to the professional level.

Toward that end, ghetto playgrounds and small town fields all aroung this country — and the world — are scoured for prospects, whether they can read or write. Given scholarships and deported to university campuses, they are then expected to live like slaves and monks, work full time on their skills and fitness, while the archaic rules of the NCAA also demand they maintain C averages in academic classes.

If they are injured or found ineligible for academic or ethical failings, they may lose their scholarships and be forced to drop out of the university. After their playing days, those who fail in the pros (the average span of a career in the NFL or NBA is less than five years) usually find themselves back where they started: without marketable skills or the benefits of a college education.

There is a solution. It is radical, forces us to discard some antiquated ideas about “amateurism.” But we were able to overcome the naive prejudice when it came to professionalism in the Olympics. So, it is not impossible. Here’s my simple plan: pay recruits to play their sport for the university.

The pay or stipend can’t compete with what they might get in the pros, but the compensation must be sweetened by giving what the pros cannot give: an education. Not while they are employed in their teams, but after their college careers are over. (Except all student athletes should be offered classes in money management, communication, relationship counseling.
Promise every recruit free tuition for as many semesters as it takes to graduate, including prerequisite tutoring to bring the student up to grade level necessary to equal other matriculating students.

Registered and regulated sports agents should be permitted to recruit students just as other businesses recruit undergrad scientists and engineers, etc. They can sign the student and supplement the stipends.

Those few who become independently and permanently wealthy as pros should be expected to return a portion of their fortune to the university in return for their post career schooling.

The Death Penalty is "Dysfunctional," By George!

Today’s L.A. Times (5/1/06; P.B3; “Jurist Decries Death Row Backlog”) reported statements by California’s Supreme Court Chief Justice Ron George that highlighted a perceived crisis in death penalty implementation. George is quoted in the article as calling the process “dysfunctional” because the Legislature has failed to supply enough money to hire new staff attorneys for the Court and to increase the hourly rate for appellate lawyers.

The governor’s spokesperson said he is amenable to do what is needed to speed up executions. Legislators rejected a moratorium on the death penalty last session, but George says their refusal to allocate more money operates as a “de facto” moratorium.

It is true, we are far behind the death leading state, Texas. Since 1978 when the penalty was reinstated here, only 13 have been executed here compared with 355 in Texas. There are now 650 on California’s death row, far more having died there from murder, suicide or “natural” causes than execution. Last year the Legislature authorized $223 million for a “new and larger death row with 768 cells.”

One legislator is quoted as blaming George for not shouting loud enough sooner. He can be blamed for increasing the death row population, but for a different reason. His Supreme Court has affirmed almost every death penalty appeal, finding “harmless error” in trivial mistakes like admitting un-Mirandized confessions, allowing serious prosecutorial misconduct, relying on untrustworthy hearsay evidence, excusing incompetent trial lawyers. The result is that the federal court has had to reverse many of these cases in lengthy and expensive Habeas Corpus proceedings. Of course, critics in support speedier death shift the blame to this "liberal" federal bench.

Anyway, these issues seem to come up annually. Last year, the L.A. Times explored the problem (3/6/05; “Death Row Often Means A Long Life” latimes.com), including the following observations:

"What we are paying for at such great cost," said UC Berkeley law professor Frank Zimring, "is essentially our own ambivalence about capital punishment. We try to maintain the apparatus of state killing and another apparatus that almost guarantees that it won't happen. The public pays for both sides."

According to state and federal records obtained by The Times, maintaining the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life and not counting the millions more in court costs needed to prosecute capital cases and hold post-conviction hearings in state and federal courts.

Other states execute much more rapidly than California. Eleven Southern states — led by Texas (337 executions), Virginia (94) and Oklahoma (75) — account for 90% of all executions in the last 27 years. This is partly because California, similar to other non-Southern capital punishment states, dedicates much more time and money to state and federal appeals.

Another important factor is that the U.S. 9th Circuit Court of Appeals, serving California and consisting largely of Democratic appointees, is more likely to hear death penalty petitions than the more conservative appeals courts serving Texas (5th Circuit) and Virginia (4th Circuit).

"We don't turn them [executions] out the way a lot of Southern states do," California Chief Justice Ronald M. George said in an interview. "The virtue of our system is also its vice. We go to such lengths to minimize the possibility of error, and we've built in a lot of delay... "The part I find most dysfunctional is that we have a delay of three to four years between the time the death penalty judgment is imposed by the trial court and the time the defendant is appointed counsel."

George said that 115 death row inmates still have not been appointed lawyers for the first direct appeal to the state Supreme Court that is mandated by state law. And 149 lack lawyers for state habeas corpus and executive clemency petitions.

In recent years, both state and federal courts have increased the incentives for qualified defense attorneys to take death penalty cases. The state Supreme Court offers $125 an hour or fixed fees ranging from $135,000 to $314,000 for capital case defense representation. The federal courts recently increased their hourly rate to $150 for defense lawyers in capital cases.

But even at those rates, only a relative handful of attorneys from the 200,000 licensed to practice in California are willing to devote the years of work and vast number of filings a typical capital case can take. Because of the long appeals process, the delay between sentencing and execution in California averages nearly 20 years. As a result, there is a general graying of the population on death row. According to Department of Corrections statistics, 180 death row inmates are older than 50; 42 are older than 60.

Prison records show that California death row inmates are far more likely to die of natural causes than they are at the hands of the executioner. Since 1978, during the same period that 11 inmates were put to death, 28 died naturally, 12 committed suicide and two were killed in incidents on the San Quentin exercise yard. "The leading cause of death on death row," George said, "is old age." ...

... The public cost of maintaining the death penalty, meanwhile, continues to mount. The annual bill breaks down like this:

• According to Corrections Department spokeswoman Margot Bach, it costs $90,000 more a year to house an inmate on death row, where each person has a private cell and extra guards, than in the general prison population. That accounts for $57.5 million annually.

• Atty. Gen. Bill Lockyer, whose deputies represent the counties during appeals, estimates that he devotes about 15% of his criminal division budget to capital cases, or about $11 million annually.

• The California Supreme Court, which is required by law to review every death penalty case, spends $11.8 million annually for court-appointed defense counsel.

• The Office of the State Public Defender, which represents some death row inmates, has an annual budget of $11.3 million. The San Francisco-based Habeas Corpus Resource Center, another state-funded office, represents inmates and trains death penalty attorneys on a budget of $11 million.

• Finally, federal public defenders offices in Los Angeles and Sacramento, and private attorneys appointed by the federal court system for California cases, receive about $12 million annually.

The resulting $114-million annual cost does not include the substantial extra funds needed to try the complicated capital cases in county courts.

Research by the UC Berkeley School of Public Policy in 1993, the most recent study of its type available, showed that in Los Angeles County, a capital murder trial costs three times more to try than a noncapital murder case, $1.9 million compared to $630,000. One reason for the extra costs is that capital cases require a jury trial for sentencing after guilt has been determined in the first trial.

Typically, capital cases have four times as many pretrial motions, more investigators and expert testimony and much more exhaustive jury selection. Other spending not included in the total are courtroom, staff and filing costs at the California Supreme Court, four federal district courts and the U.S. 9th Circuit Court of Appeals.

In an interview, George estimated that the state's highest court spends about 20% of its time and resources on death penalty cases alone. Federal habeas corpus appeals in death cases are so expensive that the 9th Circuit assigns a U.S. district judge just to review the budgets of each capital case.

For the present, activists both for and against the death penalty are unhappy.
"When we reinstated the death penalty, I don't think anyone believed it would look like it does today," said Dane Gillette, a senior assistant attorney general who overseas the state's death penalty cases. "The system is twisted and corrupted in ways that were not anticipated."

Michael Laurence, director of the Habeas Corpus Resource Center and one of the state's leading capital defense lawyers, sees the whole process as an enormous misuse of resources.

"We put all these resources into litigation where we end up killing one person every two or three years," said Laurence. "What if just a small portion of the money we spent on these cases went for the prevention of child abuse? From my experience, this would have done far more to prevent murders than anything we have done with capital punishment."

Possibly as a result of the high costs and bottleneck on death row, there has been a marked decline in death sentences in recent years. In 1999, juries imposed 42 death sentences. In 2004, the number dropped to nine. But the numbers fluctuate, and new admissions to California's death row continue to exceed by many times the number of executions...."

I worry about he emphasis of costs as an argument against the death penalty. I fear that instead of our state's scruples against executing people without at least trying to provide competent counsel for them and a thorough check and balance to assure the "correctness" of the punishment, California will go the way of other states and try to get it done wholesale.