[Mb-civic] The death penalty doesn't pay

[ean at sbcglobal.net]

http://www.latimes.com/news/opinion/commentary/la-oe-
semel13jan13,0,211014
0.story?coll=la-news-comment-opinions

Los Angeles Times Op-Ed
The death penalty doesn't pay
By Elisabeth Semel

ELISABETH SEMEL is a professor at UC Berkeley's Boalt Hall
School of Law and director of Boalt's Death Penalty Clinic.

January 13, 2006

IF THE SCHEDULED execution of Clarence Ray Allen goes forward on Jan. 
16 -
the day after his 76th birthday - he will be the oldest person executed in
California since the death penalty was reinstated. But he will not be the
first elderly, seriously ill inmate executed, nor will he be the last.
Similarly, although his case received extraordinary media coverage,
Stanley Tookie Williams was neither the first nor the last prisoner put to
death who many believe had profoundly changed while in prison.

What is extraordinary, however, about these two executions is that they
will have occurred a month apart. That is unprecedented in a state that,
until December, had carried out only 11 executions since 1977 - on
average, less than one every two years. And the executions are not about
to stop. According to the state attorney general's office, three other men
are likely to face execution in 2006 and, within several years, the number
of executions may be "considerable."

Ironically, California is speeding up the pace of executions just as
public support for the death penalty is waning. Nationwide, the rate of
executions continues to decrease. In California, fewer prosecutors have
sought the death penalty since 2001, and fewer juries have been willing to
deliver death verdicts. Were their cases in the trial courts today, it
seems likely that a significant number of the 646 individuals now on our
state's death row would not be selected for capital prosecution in the
first place or would be allowed to negotiate a plea for a sentence of life
without possibility of parole or, if tried, would not receive a death
verdict.

There are 3,327 men and women in California serving sentences of life
without possibility of parole. These are individuals who for reasons of
geography, race, economic status, prosecutorial discretion, trial verdict,
good lawyering or even good timing - to name just a few - were found
guilty of death-eligible crimes but were not ultimately sentenced to
death.

Just like those on death row, some were convicted of multiple murders, and
some had prior records, including crimes of violence. Just like those on
death row, most had never taken a life before, and many did not have a
serious criminal history. And, just like those awaiting execution, some of
the families of their victims wanted them to pay with their lives, and
others did not.

In sum, the line that divides those we execute and those we do not remains
as arbitrary and capricious as it was in 1972, when the U.S. Supreme Court
declared it constitutionally intolerable.

What if, instead of more executions, Californians awoke tomorrow to find
that capital punishment was gone and could not be resurrected?

Some prosecutors, jurors and family members of victims would no doubt be
frustrated and angry. But there also would be relief on the part of
prosecutors who have had second thoughts about the fairness and
reliability of the outcomes they pursued. There certainly would be relief
on the part of jurors who have learned facts about the defendant that were
never presented at trial - facts that would have changed their sentencing
verdict. And victims' family members who either did not want the defendant
put to death or who discovered that the prospect of an execution did not
abate their grief or make any more sense of their loss would share in that
sense of relief.

Beyond the emotional fallout, how would California get on with the state's
business? Can California live without the ultimate act of retribution? The
answer is that our state would do immeasurably better by removing this
albatross of enormous financial and psychic weight.

California has recent experience functioning without executions. There
were none in this state from 1967 to 1976, when a de facto moratorium
occurred during a period of intense, nationwide litigation, including the
Supreme Court's decision in 1972 to overturn the death penalty statutes
then in effect.

Although California reinstated the death penalty in 1977, 15 years passed
before there was an execution while cases made their way through the
courts. Thus, for a quarter of a century, California carried on without
putting a single man or woman to death. During this period, murder rates
here fluctuated - as they did in states with and without capital
punishment. However, California's experience is consistent with more than
a century of social science findings that the presence or absence of
executions is irrelevant to murder rates.

According to a Times article last March, each of the 11 executions after
1977 cost Californians a quarter of a billion dollars. The article found
that, for institutional reasons, the cost of housing death-sentenced
inmates is three times that of the general population. A capital trial
costs at least three times as much as a non-capital murder trial. It takes
tens of millions of dollars annually to pay for courts, prosecutors and
defense counsel.

Despite recruiting efforts, the California Supreme Court still cannot
secure willing and qualified lawyers to represent more than 200 of those
currently on death row who will wait four to eight years for appointment
of counsel to handle their cases. In short, although we are spending an
enormous amount on our death penalty system, we are not spending nearly
enough.

On Tuesday, the state Assembly Public Safety Committee passed AB 1121,
which would enact a moratorium on executions. Now we must hope that the
Assembly and state Senate pass the legislation and that Gov. Arnold
Schwarzenegger signs it. The measure would suspend the death penalty for
three years, until Jan. 1, 2009, when the California Commission on the
Fair Administration of Justice completes its investigation into a range of
systemic issues, including whether capital punishment allows the innocent
to be executed.

In the intervening years of the moratorium, perhaps Californians and their
elected officials can summon up the courage and the common sense to put an
end to the death penalty.

***

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"A war of aggression is the supreme international crime." -- Robert Jackson,
 former U.S. Supreme Court Chief Justice and Nuremberg prosecutor

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