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Originally posted at Fair and Unbalanced

40 years ago today, the United States Supreme Court decided Furman v. Georgia, which struck down existing death penalty laws as unconstitutional in violation of the Eighth Amendment's cruel and unusual clause.  California's death penalty was quickly reinstated.

Attempting to comply with Furman, the new statute made the death penalty mandatory for certain first degree murders and other crimes.  But in 1976, the U.S. Supreme Court struck down death penalty laws that provided for mandatory death sentences. The California Supreme Court, relying on the high court's ruling, once again found the state's statute to be unconstitutional.

Undeterred, the California legislature passed a new death penalty law in 1977.  This was followed in 1978 by a ballot proposition, known as the Briggs Amendment, which was similar but more expansive version that sought to encompass more -- virtually all -- categories of murder (including unintentional murders committed during certain felonies).  Briggs passed and it is the law we are living with, so to speak, today.  

Forty years after Furman:  $4 billion dollars, over a thousand death sentences, over 720 currently on death row, and 13 executions, none since January 2006.

Tani Cantil-Sakauye, after one year as the Chief Justice of the State of California, has concluded that the state's capital punishment system is "not effective" and requires "structural changes" that the State cannot afford.  Her predecessor, Ron George, who was Chief Justice for 15 years, came to the same conclusion, describing California's death penalty scheme as "dysfunctional."

An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year.  They concluded that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."

Justice Byron White observed in Furman that:

When imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.  Nor could it be said with confidence that society's need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.
The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  In addition, given the current backlog and the serious problems identified by the California Commission for the Fair Administration of Justice -- problems that would require an enormous influx of state funds to fix -- it simply is not possible that defendants who are only now being sentenced to death will have their death sentences carried out.  Because it is so wantonly and so freakishly used, California's death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down in Furman.

Justice Potter Stewart famously characterized the Texas and Georgia statutes at issue in Furman as being cruel and unusual in the same way that being struck by lightning is cruel and unusual.  What he meant was that of all those who committed death eligible crimes, the petitioners were among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . [and] the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Application of Furman's benchmark for determining arbitrariness demonstrates that only a capriciously selected random handfu of death-sentenced inmates in California will actually be executed.  A new death row prisoner would have to get in line behind 720 condemned inmates.  He or she would then have to wait years for appointment of appellate counsel (currently a 5 year wait) and even longer for the appointment of state habeas counsel (8-10 years).  Even after these lawyers are appointed and appellate briefs and habeas petitions are filed, the case will not be heard and decided before the several hundreds of cases that have preceded it.  And then, after all this time and expense, the California Supreme Court, in virtually every case regardless of the merits, will uphold the death sentence.   Then the case moves on to federal court, which has its own backlog, and often requires new counsel, with proceedings currently averaging over six years in district court followed by over four years of appellate review.

Justice White noted in Furman that where the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice it is unconstitutional.  As he stated, when the death penalty ceases realistically to further [the social ends it was deemed to serve] . . .  its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.

We have far surpassed this point in California.

The SAFE California Act is on the November ballot.  If it passes it would replace California's multi-billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Please join the effort to replace the death penalty by clicking here:  SAFE California.

Originally posted to Lovechilde on Fri Jun 29, 2012 at 03:18 PM PDT.

Also republished by Abolish the Death Penalty and Community Spotlight.

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Comment Preferences

  •  I think this has a good chance to pass (9+ / 0-)

    Nearly all the ads should focus on the economics which I think can convert many death penalty advocates to vote in favor. The reality is that the process currently required to execute someone now takes so long, and costs so much, that it no longer makes sense in a state that has chronic deficits in the billions.  

    "let's talk about that"

    by VClib on Fri Jun 29, 2012 at 05:02:35 PM PDT

    •  I hope and pray it does. (6+ / 0-)

      What a shame decency and humility weren't enough.

      •  The thing is, most people really hate murderers! (1+ / 0-)
        Recommended by:

        I don't think there's a compelling decency-and-humility claim to make people hate murderers less.  The purely pragmatic appeal, had it been the basis for anti-death penalty agitation from the post-1978 start, might have succeeded more widely by now if not for the fact that so many agitators wanted to change our souls in ways we don't especially want to be changed.

        Romney '12: Bully for America!

        by Rich in PA on Fri Jun 29, 2012 at 07:07:12 PM PDT

        [ Parent ]

        •  Fortunately ... (3+ / 0-)
          Recommended by:
          Lovechilde, 4Freedom, Ginny in CO

          people hate having their state be broke nearly as much as we hate criminals as we sit watching education and public services go down the drain.

          End the DP saves money!

        •  Oh, come on. (0+ / 0-)

          It isn´t about making people "hate murderers less."   The system is racist and tilted toward dishonest prosecutors, thus irretrievably broken.

          That´s where decency and humility come in.  We don´t subject people to the death penalty in such a system.  If the money argument works, fantasic, but there were already compelling moral arguments.

          You may not agree that a racist and otherwise dishonest system is a sufficient argument against the death penalty, but please don´t be intentionally dense.

    •  I agree that that's the most viable case to make (2+ / 0-)
      Recommended by:
      VClib, 4Freedom

      I'm not sure why this diary invokes the cruel-and-unusual argument in its title, though.  The only hint of it in the text is the notion that so few people sentenced to death are actually executed that it must be arbitrary (and, one assumes, cruel and unusual).  I don't think that would fly or that it would deserve to, any more than a person arrested for murder could argue that the fact that some people get away with murder makes an arrest cruel and unusual.

      Romney '12: Bully for America!

      by Rich in PA on Fri Jun 29, 2012 at 07:04:32 PM PDT

      [ Parent ]

      •  The more straightforward argument (5+ / 0-)

        that it's arbitrary is that it is - that if you can afford a lawyer, you're unlikely to get the death penalty, that the race of the defendant and victim matter a great deal, that it's incapable of avoiding convicting the innocent, etc.  

        Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

        by David Kaib on Fri Jun 29, 2012 at 07:37:03 PM PDT

        [ Parent ]

        •  David that's a good argument (4+ / 0-)
          Recommended by:
          tytalus, 4Freedom, Ginny in CO, john07801

          but if falls flat with death penalty advocates. The campaign needs to focus on the economics. The people who already oppose the death penalty, for whatever reason, are going to vote for the Proposition. Unfortunately the majority of Californians favor the death penalty. We have to convince some of them that California can't afford the death penalty.

          "let's talk about that"

          by VClib on Fri Jun 29, 2012 at 08:35:56 PM PDT

          [ Parent ]

          •  Long time friend/former SO is CA lawyer (1+ / 0-)
            Recommended by:

            for death row inmates - since the early '90s. He is pleased with the fiscal approach for sincere advocates while noting they don't make up 100% of the people who answer surveys in support of the DP. He is thinks there are enough who haven't seriously considered the facts to flip the support and kill it. He's been a strong activist for the repeal of the DP for 3 decades at least, and that's as optimistic about this as I have ever known him to be.

            My additional reason for dumping it is that dedicated and experienced lawyers like him will be freed to change their careers to other beneficial work defending the oppressed, exploited, etc.

            This is the person, btw, who patiently supported and guided me from being a staunch conservative to understanding and embracing the Democratic party values.

            "People, even more than things, have to be restored, renewed, revived, reclaimed and redeemed; never throw out anyone. " Audrey Hepburn "A Beautiful Woman"

            by Ginny in CO on Sat Jun 30, 2012 at 12:51:05 PM PDT

            [ Parent ]

          •  I think it's wrong to (0+ / 0-)

            focus on what 'falls flat with death penalty advocates'.  When given the choice of LWOP, the public is evenly split.* But the number who could be called advocates is considerably smaller than the number who choose a polling option.  It's important not to confuse caring a lot with saying something in a poll.

            The thing I linked demonstrated that people who have shifted out of the "pro" camp did so because of the innocence argument. There is no evidence I know of that cost arguments have had similar success.

            Cost arguments (without more) have been the bread and butter of Democratic Party neoliberalism since about 1980, and their record is not good.  I like cost arguments, but I don't think they alone are very effective.  Politics is always about values.  You need to offer a new narrative, not argue within a conservative one.

            *That's national - the numbers are better in CA. This policy option does include LWOP, BTW.

            Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

            by David Kaib on Mon Jul 02, 2012 at 07:56:40 AM PDT

            [ Parent ]

  •  An arbitrary death penalty (1+ / 0-)
    Recommended by:

    is one that convicts the innocent.  A great deal of evidence shows people oppose that and the possibility is undermining the (already weak) support for the death penalty.

    Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

    by David Kaib on Fri Jun 29, 2012 at 07:38:52 PM PDT

  •  Next battle will be to declare life without (1+ / 0-)
    Recommended by:

    parole cruel and unusual.

  •  We love state sponsored killing; we're #1 at it; (1+ / 0-)
    Recommended by:
    Tuba Les

    it's part of our culture. We also really love punishing in the name of vengeance.

    Agreed tho, tipped & rec'ed

    The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

    by a2nite on Sat Jun 30, 2012 at 10:00:02 AM PDT

  •  It's fascinating that this got on the ballot. (0+ / 0-)

    I wonder if they used paid signature-gatherers, or if it was a totally volunteer effort. I know many people in Fresno were circulating the petitions a few months ago, and I questioned if it had a chance to qualify. Having been part of two campaigns that didn't get the required number of signatures, I'd like to know how they did it.

    The spirit of liberty is the spirit which is not too sure that it is right. -- Judge Learned Hand, May 21, 1944

    by ybruti on Sat Jun 30, 2012 at 12:27:23 PM PDT

  •  Reasons to oppose the death penalty (0+ / 0-)

    1.  It's insane to spend that much money for the ritual execution of a relatively minute number of murderers who were unfortunate enough to have the wrong lawyers or to have committed their crimes in the wrong county and/or at the wrong time.
    2.  It's immoral for society to subsidize an immoral impulse.  I understand the desire for revenge.  I feel it on a daily basis. I also understand the desire for sex, money, and fame.  I don't expect the taxpayers of California to pay for me to attain any of those desires.
    3.  It distorts the legal process.  After Chief Justice Rose Bird was removed from office for reversing too many death sentences, the California Supreme Court has had an extraordinarily high rate of affirmance in death cases.  In order to maintain that rate, it has twisted the law in multiple ways that have had a negative impact on non-capital cases.
    4.  Innocent people are more likely to be convicted in death penalty cases because the jury selection process in such cases tends to remove those who have a healthy skepticism of the police and the establishment.
    5.  Innocent people are more likely to plead guilty in death penalty cases to avoid execution.  Indeed, the coercion of guilty pleas is one of the reasons proffered by capital punishment proponents in support of that penalty.
    6.  It is now, and will always be the case (until we attain a state of perfection) that "others," meaning people of different races, backgrounds, ethnic origins, classes, etc. from the community standard are far more likely to be subject to the death penalty than those who conform to that standard.
    The death penalty is evil, racist, classist, and expensive.  I resent every penny of my tax dollar that supports it.  Its abolition should be a top priority of every progressive/liberal California voter this year.

    We were somewhere around Barstow on the edge of the desert when the drugs began to take hold.

    by DParker on Sat Jun 30, 2012 at 09:37:02 PM PDT

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