Professor Bill Ong Hing, who served on the California Commission for the Fair Administration of Justice (CCFAJ) argued recently that California’s death penalty should be abolished because of its intractable problems: The death penalty is too costly, the possibility is high that a person who has been wrongfully convicted will be put to death, capital punishment inordinately affects communities of color, the imposition of the death penalty varies greatly from county to county within the same state, a low income defendant faces a troubling disadvantage when charged with a capital offense, the death penalty forecloses any possibility of healing and redemption, and the death qualification juror requirement inherently and unjustly biases the process against the defendant.
In addition to these inherent flaws, the death penalty serves no meaningful societal purpose because with extremely rare exceptions, death sentences are unlikely ever to be carried out. Ronald George, former Chief Justice of the California Supreme Court, acknowledged this when he testified before CCFAJ and described California’s death penalty system as “dysfunctional.”
As the CCFAJ report found, it is “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the court’s review of appeals and habeas petitions. According to CCFAJ’s 2008 report, “[t]he lapse of time from sentence of death to execution averages over two decades in California.” This constitutes the longest delay of any death penalty state, and the duration of the delay continues to increase. With the largest death row in the country, currently about 720 inmates (including 16 women), CCFAJ reached a well-documented conclusion that common-sense already tells us: “most California death sentences are actually sentences of lifetime incarceration. The defendant will die in prison before he or she is ever executed.” Indeed, “the backlog is now so severe that California would have to execute five prisoners per month for the next twelve years just to carry out the sentences of those currently on death row.”
In 1976, the U.S. Supreme Court held that unless a criminal sanction serves a legitimate “penological justification” it constitutes “gratuitous infliction of suffering” in violation of the Eighth Amendment. (Gregg v. Georgia) The two societal purposes identified by the high court to justify the death penalty are retribution and deterrence. These twin rationales are completely undermined, however, by California’s broken death penalty process, where the state’s death row is so large and executions are so infrequent that death sentences imposed today have no likelihood of being carried out.
Justice Byron White observed in Furman v. Georgia, the 1972 case which overturned the death penalty statutes then in operation, 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.
Although death sentences are imposed regularly in California, there have been only thirteen executions in the thirty-plus years since the current death penalty law was enacted in 1978. 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 CCFAJ, 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.” The Court found death penalty schemes to be arbitrary and capricious where fewer than 20 percent of death eligible defendants were sentenced to death.
Application of Furman’s benchmark for determining arbitrariness, less than 20 percent of the relevant population, demonstrates that only a “capriciously selected random handful” 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. It is, therefore, increasingly unlikely that anything close to 20 percent of newly sentenced condemned inmates will actually be executed.
Instead, those sentenced to death will be warehoused on death row for the rest of their lives in an overcrowded and dilapidated facility, with none of the rehabilitative services or other programs afforded the non-condemned. The psychological toll of being confined on death row for long periods of time has become so prevalent that it is commonly referred to as the “death row phenomenon.”
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.