As district attorney in Los Angeles County for eight years, Gil Garcetti made the decision many times to use all the resources and power of his office to persuade a jury to condemn a person to death.
For that he has no qualms.
"It wouldn't bother me at all if a person that we charged was actually executed," he says.
But that hasn't happened.
It's been only 18 years since Garcetti was first sworn in as district attorney, and in California that's hardly enough time for a death penalty to run its course. The average delay is 24 years between a judgment of death issued by a jury and the completion of a condemned inmate's judicial review in state and federal courts.
It takes five years just to appoint an attorney to handle a condemned murderer's automatic appeal to the state Supreme Court, and typically five more years for the court to decide his case. The state habeas corpus proceedings take another two years. Then constitutional issues are raised in federal courts, where it typically takes 10 years for those cases to make their way through to the court of appeal — where relief is granted nearly 70 percent of the time, resulting in either new trials or new penalty proceedings.
Since the death penalty was reinstated in California in 1978, judgments of death have been rendered 812 times. The resolution of those cases to date: 718 inmates are incarcerated on San Quentin's death row, 55 condemned inmates have died of natural causes, 19 have committed suicide, six died from other causes, one was executed in Missouri for a separate crime. And California has carried out just 13 executions.
As of 2008, there were 30 people who had been on death row for more than 25 years.
The cumulative cost for all this, above what taxpayers would have borne had the ultimate penalty been a life sentence without possibility of parole, is estimated at $4 billion. Just this year the cost of having the death penalty on the books is estimated at from $120 million to $184 million.
The record leads to one blunt conclusion, expressed by the authors of an exhaustive study published earlier this year in the Loyola of Los Angeles Law Review: "California has the most expensive and least effective death penalty law in the nation."
That reality has been enough to make a convert of Garcetti, who has joined with other past participants in carrying out the death penalty such as former San Quentin warden Jeanne Woodford and Don Heller, the attorney who wrote the state's death penalty law, to say the system just doesn't work — not for taxpayers and not for public safety.
"You have people involved in the process who have reached the same conclusion," he said. "It's ineffective, and we can't afford it."
Working for a ballot measure
Garcetti has become the lead spokesman for a group called SAFE California. It is sponsoring a ballot initiative, now in the signature-gathering phase, that would ask voters next fall to eliminate the death penalty and replace it with a sentence of life in prison without possibility of parole.
It is very likely the group will succeed in putting the question before voters. Through this week, it had taken in more than $1.2 million in contributions, and it has retained a top ballot-measure strategist to manage the campaign. Garcetti said he is certain sponsors have sufficient financial support to ensure that Californians next year "will have a healthy discussion" about the death penalty, its effectiveness and its costs.
Such a discussion has been taking place for years among legal and law enforcement experts, but there has been no consensus on a solution.
A blue-ribbon, 26-person panel called the Commission on the Fair Administration of Justice issued a lengthy report on the issue in 2008. The panel included police chiefs, district attorneys, law professors, judges and defense attorneys. It recommended the state beef up what it spends to litigate death penalty appeals to reduce the time involved by half, which would bring California to the national average of 12.5 years between sentence and resolution of appeals.
To do that, it said, would require spending an additional $79 million a year, mostly by increasing the budget for the state Public Defender's Office by a third and authorizing the Habeas Corpus Resource Center to hire five times more attorneys.
Three years later, funding for those offices has gone down, not up.
The commission concluded that California had four choices: Continue spending $137 million a year on a "dysfunctional system"; implement its recommendations at a cost of $233 million a year; narrow the death penalty law to reduce by about half the number of new cases, at a cost of $130 million a year; or replace the death penalty with a sentence of life without possibility of parole, at a cost of $11 million a year.
"Doing nothing would be the worst possible course," the report said.
Among the members of the panel was Ventura County District Attorney
Greg Totten, now president of the California District Attorneys Association. Totten wrote a dissent, signed by four other commissioners, arguing that the majority's report "indirectly assaults California's death penalty by seeking to undermine public confidence in our capital punishment law and procedure."
Totten argued then, and still asserts today, that the state must increase the amount it spends to provide for timely and thorough appeals.
"We are frustrated with the delays we see in the system," he said in an interview last month. "It's going to cost money. If you're going to take someone's life, you have to commit the resources to make sure it's done fairly. If the public wants the death penalty, they're going to have to pay for it."
He believes the added expense would be worth it, both to protect public safety and to carry out appropriate justice in those "horrible cases" in which the death penalty is sought. By seeking an execution in such cases, he said, "In a way, we're telling the public that we value life so much."
Garcetti believes that voters, when they examine "how the system really works," will conclude the costs are overwhelming to support a system that has resulted in six times more condemned inmates dying in their prison cells than have been executed.
"It serves no useful purpose," he says of the system.
That is a conclusion that four states — New York, New Jersey, Illinois and New Mexico — have reached over the last four years. All abolished the death penalty, and did so at a time when its use has been in decline across the country.
Death sentences drop
The number of death sentences issued nationally has dropped 60 percent since the 1990s and the number of executions has declined by half, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.
The trend, Dieter said, is largely the result of "skepticism and discomfort" that stem both from the uneven application of the death penalty and growing concerns, largely driven by advancements in the use of DNA evidence, that innocent people are among those awaiting execution.
Across the country since 1973, 138 people who had been on death row have been cleared of all charges. Many of those cases, including three in California, were instances in which a verdict was invalidated because of deficiencies in the original trial and the defendants were either acquitted in subsequent trials or charges were dropped.
Dieter acknowledges not all of those exonerations were instances in which it could be established with certainty that the defendants were wrongly accused. "Factual innocence is a harder thing to objectively determine," he said.
He noted, however, that 17 convictions were overturned as a result of DNA evidence that exonerated former death row inmates.
Totten insists there is no evidence that any innocent person in California has been executed or condemned, a contention with which the commission agreed. But the panel's report added a cautionary caveat: "The commission cannot conclude with confidence that the administration of the death penalty in California eliminates the risk that innocent people be convicted and sentenced to death."
Concerns about innocence and cost have been intertwined in leading other states to abandon the death penalty, Dieter said, because the argument that costs could be reduced by speeding up the process "just doesn't sell." One of the reasons it costs so much is because of the care that is taken to ensure against the execution of an innocent person.
Totten said prosecutors in California agree death penalty cases demand extraordinary review. "No prosecutor is going to argue for a reckless pace," he said. "Prosecutors want the defense bar to have the resources they need."
Still, the fact is indisputable that the appeals process for California cases is excessively slow, at double the national average.
Totten and others argue some of the costs and delays are the result of an appellant-friendly U.S. Ninth Circuit Court of Appeals and a deliberate strategy on the part of some who are opposed to the death penalty on moral grounds to prolong delays "so that at some point the public loses its stomach because it's too costly."
The timeline
Most of the costs, however, are incurred before any appeal reaches the federal judiciary. It starts with the actual courtroom trial to determine guilt and, if that is established, a separate penalty phase of trial to decide on the death sentence.
Preparation for such a trial can last two or three years. When it's ready to begin and the jury pool is called, the number of potential jurors is nearly doubled, from 225 to 400, for a capital case, said Ventura County Superior Court Executive Officer Michael Planet.
A second court reporter is hired so trial transcripts can be produced on a daily basis. The final transcript in a capital case is typically 20,000 to 30,000 pages.
"It's all a matter of scale. They're big," Planet said. "Everything is just so attenuated. You've got attorneys who are going to leave no stone unturned."
In many counties, including Ventura, following state guidelines, the Public Defender's Office immediately assigns to any death penalty case two attorneys, an investigator and a specialist to examine the accused's background.
"When we have a capital case, we go over budget. That's all there is to it," said Ventura County Public Defender Stephen Lipson. "The guy's life is in your hands. You're either going to do everything for him or you're not."
Estimates of the added trial costs in capital murder cases compared with noncapital murder cases vary. Separate studies in California have pegged the added costs at more than $1 million. In its estimate, the Commission on the Fair Administration of Justice calculated the added costs per trial at $500,000, a figure it acknowledged to be conservative.
All death sentences are automatically appealed directly to the California Supreme Court, which is swamped with such cases. Although the court is now keeping pace with its caseload — over the last decade it has issued opinions in 232 death penalty appeals and taken on 233 new cases — its backlog remains daunting.
From 1996 through 2001 the court decided 52 cases while 192 new ones came onto its docket.
The state Public Defender's Office, with an annual budget of $10 million, handles almost exclusively death penalty appeals, but is able to take on fewer than half of the cases. For the rest, the Supreme Court has to assign private counsel, typically at a fixed fee of $219,000.
Even at that pay rate, it is a challenge to find qualified, experienced attorneys to take on death penalty appeals and it takes on average five years for the court to assign a case.
With life or death at stake, condemned inmates also are entitled to state-paid counsel to present a habeas corpus petition. At that stage, issues other than matters raised during their trials can be raised. Those cases are handled either by court-paid private counsel at a rate of $145 per hour or by the state Habeas Corpus Resource Center, with a budget of $13.6 million. It takes another two years for the state Supreme Court to rule on those petitions.
And at every step of the way, lawyers on the payroll at the state Department of Justice defend against the appeals. Based on the estimate by former Attorney General Bill Lockyer that 15 percent of the department's criminal division budget is devoted to capital cases, the law review article pegged the annual costs for the Department of Justice at $17.3 million.
The state's highest court devotes about a quarter of its time and resources to death penalty cases. Former Chief Justice Ronald George called the situation a crisis, and told the state commission unless something is done to better handle the caseload, the court's backlog will grow "until the system falls of its own weight."
Beth Jay, principal attorney to current Chief Justice Tani Cantil-Sakauye, said court officials are doing all they can. "I have spent a great deal of time with others over many years working to improve the number of counsel, working very closely with the defense entities and the court to better oversee the processing of these cases," she said. "The court has expended a lot of effort to make the process as efficient and effective as it can be."
A tough sell
Backers of the initiative are hoping Californians — including many of those who agree in concept with capital punishment — can be persuaded that administration of the death penalty in this state has become so inefficient and so costly it ought to be abandoned, freeing up $120 million or more annually that they assert could be spent much more productively.
They are aware it will be a tough sell politically. Historically, Californians have strongly supported the death penalty. The ballot measure that re-established capital punishment in 1978 passed with 71 percent support. Eight years later, 67 percent of voters decided to boot off the Supreme Court the late Chief Justice Rose Bird and two associate justices, based almost entirely on their perceived categorical opposition to the death penalty.
Some recent polling suggests a shift may be occurring. The nonpartisan Public Policy Institute of California found in a September survey of 2,000 adults that 54 percent chose life in prison "with absolutely no possibility of parole" over the death penalty. When the same question had been asked in 2000, only 47 percent chose that option, with 49 percent favoring the death penalty.
Significantly, emerging segments of the electorate were more likely to support life imprisonment: 67 percent of Latinos chose that option, and support for it was stronger among those under 35 than among older adults.
Dan Schnur, head of the Jesse M. Unruh School of Politics at USC and director of the Dornsife College-Los Angeles Times poll, said it would take a marked shift in public sentiment for the initiative to abolish the death penalty to succeed.
"You never say never, but it's hard to see the voters reversing themselves so dramatically on such an emotional issue," he said. He acknowledged the issue hasn't been tested at the ballot box in decades, but "just because an issue fades out of the public mind doesn't mean voters have necessarily changed their minds."
Garcetti said backers of the initiative hope to make voters aware of what it's costing taxpayers to sustain the system.
"People do not know this, and when they learn this they are dumbfounded by the costs," he said. "Circumstances have changed so dramatically in terms of our economy that people are desperate to find more efficient ways to spend our tax money."
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