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February 17, 2014
Viewpoints: Beware the pro-death penalty spin

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(Feb 17 - By Bruce Maiman, Special to The Bee)

Former Govs. George Deukmejian, Pete Wilson and Gray Davis, along with some politically ambitious prosecutors, are backing a proposed ballot measure they claim would end lengthy death penalty appeals and speed up executions.

I'm highly skeptical, and voters should be leery of what is sure to be an exercise in manipulative hype and deceptive hackery.

A statement from the former governors said, "Californians overwhelmingly reaffirmed their support for the death penalty" with the 2012 vote on Proposition 34.

Already, the spin. Prop 34, which would've ended capital punishment in California, lost by a 52-to-48 percent margin. That's 6.4 million voters to 5.9 million, hardly overwhelming.

It doesn't reflect sentiments in counties with higher capital convictions, either. Presuming that's where victims of the convicted live, what does that say?

In Los Angeles County, which sends more people to death row than any other county in the nation (232 of the state's 747 death row inmates were sentenced there), 54.5 percent voted to repeal California's death penalty. By your definition, governors, that's an overwhelming mandate. Alameda County, ranked ninth nationally for capital convictions, voted to repeal the death penalty by an even wider margin, with 62.5 percent in favor of repeal and 37.5 percent against.

More significant: The 2012 vote ignores the decline in death penalty support. Field Polls once showed two-thirds of Californians supported it. That's a far cry from Prop. 34's 52 percent and a profound shift that mirrors changing attitudes nationwide.

Essentially, this initiative asks a misleading question: Do you support the death penalty?

The real question is, "Are you willing to pay more money to have it?"

How much? Proponents of the initiative haven't a clue. They say putting death row inmates in with the general prison population will save "tens of millions." Is that enough? They don't tell us.

Death penalty proponents say the appeals process is wasteful. What they won't say or don't know: the greatest cost associated with capital cases occurs prior to and during trial, not in post-conviction appeals.

In 2008, we spent $137 million for California's entire capital punishment system. That year, a 22-member blue ribbon commission determined it would take an additional $96 million just at the trial level to provide sufficient and constitutionally guaranteed legal counsel.

Proponents arguing that lawyers use obstructive tactics to create delays fail to mention that delays are more often caused by a lack of defense lawyers.

In 1998, the Public Defenders Office had 127 lawyers to handle capital appeals in trial courts at the county level. "We saw a drop from 170 people awaiting counsel on death row to 75 to 80," Michael Hersek, director of the California Public Defender's Office, told me. So, reduced delays.

Since 2002, half his staff has been cut.

"We're asked to do the same amount of work with half the number of staff, and the backlog has only grown larger," Hersek said. Counties, struggling with similar budget shortfalls, compound the problem.

Even if you had the attorneys, there aren't the courts to prosecute cases. The governors say moving first round appeals to the state courts of appeal will expedite matters. At an American Bar Association meeting in August, California Supreme Court Chief Justice Tani Cantil-Sakauye lamented how funding cuts have forced the closure of 40 courthouses and 77 courtrooms statewide.

Appeals moving to the federal level - a common occurrence - face similar backlogs since, like our state courts, the federal court system has been constrained by sequestration cuts, making it difficult to accept appointments in all cases, not just capital ones.

And this is without addressing executions delayed by state and federal lawsuits over acceptable plans for lethal injections; and the 143 condemned inmates nationwide exonerated since 1973, thanks largely to mistakes uncovered by outside advocacy groups, not the legal system that wrongfully convicted them. Most would've have been executed under an expedited process. Surely those decrying the victims of murder don't condone the execution of those wrongly convicted, do they?

Advocates need to provide some hard numbers here. Otherwise the initiative isn't a solution, it's a political campaign, and campaigns for initiatives always over-promise and under-deliver, essentially reducing most initiatives to little more than a placebo. Further, given the volatile nature of capital punishment, people will be even more vulnerable to their emotional impulses rather than reasoned reflection, pondering whether this initiative is really a good idea or something that, if passed, will make a dysfunctional system even worse. If it's one thing we voters are good at doing, we're too often good at making things worse.

The 2008 commission, by the way, found that the alternative of life without parole for death row inmates would only cost taxpayers $11.5 million annually. Can this initiative beat that figure?

Bruce Maiman is a former radio host who lives in Rocklin. Reach him at brucemaiman@gmail.com.