Friday, July 18, 2014

'The Waiting Is The Hardest Part'*

I never thought I’d ever write this blog.

Because even before I sat down for an interview in 1978 over apple pie and coffee with the father of California’s death penalty law, Sen. John V. Briggs – he had a beer with his pie – I have been an advocate of capital punishment.

My support grew after covering two dozen death penalty murder trials in California courts as a newspaper reporter in the 1980s. Having seen and heard the wonton, inhumane cruelty of these murderers I never once disagreed with a death verdict, and have supported the deterrent aspects of the death sentence, as well as its retribution.

Today, I have changed my mind on the state’s death law.

Why? Because today, I read the opinion by a federal judge who ruled that California’s death penalty law is unconstitutional.

Let me explain.

In 1995 Ernest Dewayne Jones was convicted of raping his girlfriend’s mother and stabbing her to death. He was sentenced to death and the California Supreme Court affirmed his sentence. All death sentences are appealed to federal court, as was this case. In his ruling the judge voided the sentence and declared the state’s death penalty unconstitutional.

Now I don’t buy U.S. District Court Judge Cormac J. Carney’s legal reasoning that the state’s death penalty is cruel and unusual punishment under the Eight Amendment because it takes so much time – 25 years – to carry out the sentence and execute the killer.

In fact, I found myself quietly bemused after reading this in the 29-page opinion: “On April 7, 1995, petitioner was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come.”

Reading, I thought, yeah, sure, this guy is upset that he has had to wait, alive, 19 years on death row. Which begs the question: you mean he would have been happier if they had executed him five years ago?

Obviously a decision by a judge so far down in the federal court food chain isn’t precedent, which means it has minimal impact outside California. Still, it pretty much puts the state’s death law in limbo. And for you lovers of irony out there, this ruling will cause more delays of executions.
Make no mistake, the judge’s reasoning in this case will prompt similar cases in other states, which have long wait times between sentence and execution.

That’s why California must appeal it.

Judge Carney laid out a convincing case as to why California’s death penalty system is absolutely “dysfunctional.” That has been known for years and a special commission in 2008 said as much.

As the judge says it takes years to appoint an appeals attorney in death penalty cases and several more for the state Supreme Court, required under law to review every sentence, to rule. Then it takes several more years for the case to wind through the full legal system, including federal courts.

In particular, the judge points out that while some killers get appellate attorneys a few years after conviction, others wait many, many years. It is why one killer might wait 15 years to be executed and another 30 years. In fact, disparate wait times is at the heart of the decision.

“The Court has determined that systemic delay caused by the dysfunctional state review process has resulted in the arbitrary selection of a small handful of individuals for execution, and has therefore rendered Mr. Jones’s death sentence unconstitutional,” Judge Carney wrote.

That is where the judge’s reasoning falls flat.

He sets aside accepted precedent that states “appellate delay in a capital case is not cruel and unusual punishment” because it demonstrates the state is safeguarding the killer’s rights by giving him as much time as he needs for a complete appeal.

Then the activist judge goes off on his own. He essentially says the system is responsible for delaying executions in California, making the system itself unlawful. He underpins his theory with the argument that these long waits diminish if not obliterate capital punishment’s well-established goals of retribution and deterrence.

“In California, the execution of a death sentence is so infrequent, and the delays preceding it so extraordinary, that the death penalty is deprived of any deterrent or retributive effect it might once had,” the judge wrote in his opinion. “Such an outcome is antithetical to any civilized notion of just punishment.”

Might I remind the judge that California’s Penal Code Section 190.1, while providing procedural detail on the “why” and “how” of capital punishment, it doesn’t state “when” an execution shall take place. In other words, the law recognizes the effects of deterrence and retribution happen when the killer is actually executed.

Once put to death, retribution is clear.

As for deterrence, every execution is covered by the media.

Still, the judge wrote: “Allowing this system of the death penalty to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eight Amendment’s prohibition against cruel and unusual punishment.,”

I dare him to tell an opponent of capital punishment that swifter executions would be a good thing. Although, according to my reading of the opinion, quicker executions is precisely what is called for, and would win approval of this judge, a Harvard Law grad appointed by George W. Bush.

There have been 13 executions in California since 1978, and today there are 748 murderers on death row.

Along the road since 1978 death penalty opponents have thrown up legal road blocks, including the latest – the cocktail of execution drugs is painful and, therefore, cruel and unusual punishment; and that the state failed to follow its own procedures in approving the cocktail.

Successful legal maneuvering by anti-death penalty forces has helped choke off executions in California.

There has been one execution since 2006.

For this state of affairs Judge Carney is careful not to blame his federal courts. He forgets the federal appeals court in San Francisco, likely to hear this case, rarely sees a capital case it doesn’t disagree with. The judge also ignores legal precedents, many by federal courts, which have piled up over the years, lengthening death penalty appeals.

However, he doesn’t hesitate to blame the state penal system. He even blames taxpayers themselves, saying the death penalty system is “underfunded,” making it unworkable.

From a practical standpoint, what was left out of the judge’s thought process is the varied nature of death penalty prosecutions.

For instance, I sat through a death penalty trial in which evidence was circumstantial and based on complex science, including spectrum analysis of human tissue – at the time disputed among scientists. I covered another case in which a man murdered using a hammer.

What I am saying is that death penalty cases involving complex legal issues and unfamiliar science necessarily take longer on appeal than simple cases like the hammer murder. This means that yes, the guy convicted of the hammer murder might be executed before the guy convicted on scientific evidence.

So what?

That might seem arbitrary to Judge Carney but I see it as the very nature of the legal process.

In addition, he ignores that the system grapples with the unpredictable, such as a “retroactive” decision that tosses a monkey wrench into every death penalty under appeal.

The judge is certainly right in one respect. He contends the state no longer has a death penalty, which he writes, is really “life in prison, with the remote possibility of death.” (None of the killers sentenced to death in trials I covered in the 1980s has been executed in California.)

Keep in mind these death row dirt bags don’t pay their own legal fees. We do. From 1978 to 2012, California spent $1.6 billion on death penalty appeals alone. It has cost another $2 billion to try, convict and sentence these murderers.

It is estimated that if there was no death penalty, after-conviction appeals in all murder cases would cost the state only $12 million a year.

While I’ve found fault with much of the judge’s reasoning, I think it is time for Californians to be honest.

I agree with the judge, in effect, the state no longer has a death penalty. Oh, sure, district attorneys can show they’re tough on crime by asking for death for heinous killers, but they know it really amounts to life in prison, without possibility of parole. (Since 1978, 94 death row prisoners died of causes other than execution.)

It is past time to reform California’s death penalty law.

To start with, death sentences should be appealed to the state’s nimble appellate courts, not directly to the clogged Supreme Court.

And if the people of California really want capital punishment, they should approve enough money to make it work, for appeals to be completed so executions can commence.

Currently it costs $137 million a year to operate the death penalty system. To make the system “constitutional” it is estimated that it will cost a total of $233 million a year. If we are unwilling to fork over the cash to fix it, the death penalty should be scrapped, making life in prison without parole the sentence for special circumstance murder.

That’s not easy for me to say. I agree with Nancy Reagan, who once famously said: “I favor the death penalty. It saves lives.”

I know what you’re thinking.

We get rid of capital punishment and we will pay the bill for incarcerating these dirt bags for the rest of their natural lives. That is true. But, consider this: it costs $90,000 a year more to house an inmate on death row than in the general prison population.

We’ve been paying that exorbitant amount for 30 years for some of them as they appealed their sentences, anyway.

If we want capital punishment, let’s pay for a system that works, especially for the killers Judge Carney seems to have in mind – death row inmates who don’t like waiting.

*With apologies; headline from "The Waiting" by Tom Petty & The Heartbreakers.

You can obtain R.D. Byron-Smith’s books at Amazon, Barnes & Noble and other Web booksellers.

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