In 2011, I co-authored, along with Senior Ninth Circuit Judge Arthur L. Alarcón, a law review article in the Loyola of Los Angeles Law Review titled Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion Dollar Death Penalty Debacle. In that article, we exposed the true costs of the death penalty in California. We concluded that the system is broken, possibly beyond repair. We suggested several potential reforms to the system, from revising the California Constitution to expedite the appellate process to replacing the death penalty with life in prison without the possibility of parole (LWOP).
On September 10, 2012, we published an update to this report that includes cost projections for the next several decades. Our goal in publishing these articles was to disclose the reasons for the failure of the state’s present system, and the enormous costs involved, so that California voters can decide what should be done.
Prior to our law review article, no comprehensive study had been done on the costs of the death penalty in California. Since 1978, when the Briggs Initiative enacted the current death penalty statute, the law has been expanding. Subsequent initiatives have increased the number of crimes that are eligible for the death penalty, and the infrastructure around the death penalty has grown exponentially. We have created the nation’s largest death row, and taxpayers really have no idea how much it has cost the state.
To capture the costs of the death penalty in California, we looked at four major areas where the cost differential between capital and non-capital first-degree murder cases is significant: pre-trial and trial costs, costs related to direct appeals and state habeas corpus petitions, costs related to federal habeas corpus petitions, and costs of incarceration. As most in the legal community know, capital trials are much more complicated than non-capital murder trials. They require attorneys with specialized training and experience and special jury qualifications. They are bi-furcated into two full phases—guilt and penalty—and require daily transcriptions. Those convicted and sentenced to death are entitled to appellate counsel (which is extremely difficult to find, it now takes about five years to have appellate counsel appointed) and an automatic appeal directly the California Supreme Court (which has only seven justices but must hear every death penalty appeal). The records in these death penalty cases frequently exceed 10,000 pages and the briefs on appeal are typically hundreds of pages long. It takes a tremendous amount of time to review these materials. Because these cases are so onerous, it takes about ten years before a direct appeal is even argued before the California Supreme Court. From there, death row inmates typically seek a petition for a writ of certiorari in the United States Supreme Court.
If the conviction and sentence are affirmed on direct appeal, the conviction is final. At that point, death row inmates begin their habeas corpus proceedings. First, they file a state habeas corpus petition. These petitions are typically filed directly in the California Supreme Court (still with only seven justices) and are typically hundreds of pages long. Counsel representing death row inmates in state habeas proceedings are provided with a maximum budget of $50,000 to investigate claims of state and federal constitutional violations. If no relief is granted in state court, the inmates next file a habeas corpus petition in the federal district court. Publicly funded counsel is provided for all state and federal habeas proceedings for death row inmates in California. Once in federal court, petitioners have access to additional funds for investigation of their claims. Almost without exception, the district court’s determination is appealed to the Ninth Circuit Court of Appeals, regardless of whether relief has been granted. From there, the case goes once again to the United States Supreme Court for review. As for housing, death row inmates in California require extra security, an escort at all times, and are given single cells.
Our research found that these costs add up to an incredible $184 million dollars more per year than a system that instead held non-capital first degree murder trials resulting in sentences of life in prison without the possibility of parole. We found that the state has spent upwards of $4 billion on the death penalty since 1978, and is on track to spend $1 billion dollars in the next five years. Since publication of this article last year, no county, state, or federal agency has come forward to challenge the accuracy of our cost estimates with any specific data, or any other information.
Our update, Costs of Capital Punishment in California: Will Voters Choose Reform this November?, considered findings from recent studies which demonstrate that if the current system is maintained, Californians will spend an additional $5 billion to $7 billion over the cost of life in prison without parole to fund the capital punishment scheme between now and 2050. In that time, we are on track to add another 740 inmates to death row, and more than 500 death row inmates will die of old age or other causes before the state executes them.
Our recent article considered a study by Tim Gage, former Director of the California Department of Finance, and Trish McMahon, Policy Analyst for Blue Sky Consulting, which calculated incarceration costs for death row inmates, and found that their housing will cost $1,134,800,000 more than housing for LWOP inmates between now and 2050. We also discussed the cost of the ongoing lethal injection litigation, which has effectively halted executions in California, and the $800,000 the California Department of Corrections spent to construct a new execution chamber in 2007, which has never been used.
New research also confirmed some of the numbers from our 2011 article. A study by Nicholas Petersen and Mona Lynch found that from 1996–2006, Los Angeles County spent $338 million prosecuting death penalty cases. Of that, $200 million was spent on death penalty trials that ended up with LWOP sentences. This confirms our original estimate that capital trials cost taxpayers, on average, $1 million more than noncapital first-degree murder trials.
A lot has happened in the past year. California State Senator Loni Hancock introduced Senate Bill 490 in the state legislature to replace the death penalty with life in prison without possibility of parole. Judge Alarcón and I testified at an informational hearing before the legislature about the findings published in our article on the costs of the death penalty. When that bill failed in committee, a grassroots effort called the SAFE California Coalition took it up as a ballot initiative. They gathered over 800,000 signatures and qualified it for the November 2012 ballot. That initiative is now called Proposition 34, and it proposes that the death penalty in California be replaced with life in prison without the possibility of parole as the state’s most severe penalty.
Proposition 34 proposes three changes to current law. First, it replaces the death penalty with life in prison without possibility of parole as the maximum punishment for first-degree murder. Second, it requires those inmates to work and pay restitution into the victims’ compensation fund. And third, it directs $100 million over three years into the SAFE California Fund, which would be disbursed to local law enforcement offices to solve crime. California’s crime-solve rates are disturbingly low: 46% of homicides and 56% of reported rapes go unsolved every year in our state. The SAFE California Fund would help close that gap.
Our goal in undertaking this research was to inform and educate voters about how much this broken system is costing. We wanted the voters to know that their money was being wasted, since only 13 people have been executed in California since this law went into effect. California is basically warehousing capital inmates on death row for up to 10 years while they wait for appellate lawyers, and then for another 10 to 20 years while their habeas corpus proceedings are making their way through the courts. Most inmates are dying of old age. Our report called for change—but we left it open to the voters to decide whether to try to fix this system, which will cost an additional $100 million more per year than we are currently spending, or simply replace it with LWOP. After another year of inaction on the part of the legislature, and another year of more money wasted, Prop 34 will provide voters for the first time in three decades with an opportunity to decide whether it is time for California to try a new approach to improving public safety.