JUNE 30, 2008
CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE

REPORT AND RECOMMENDATIONS ON THE ADMINISTRATION
OF THE DEATH PENALTY IN CALIFORNIA.

TABLE OF CONTENTS
INTRODUCTION: CHARGE AND NATURE OF INQUIRY………….....1
SUMMARY OF RECOMMENDATIONS………………..……………..…5
PART A: WHY THE SYSTEM IS BROKEN, AND WHAT IT WILL
TAKE TO FIX IT.
1. California’s Death Penalty Law…………………………………….…...16
2. Excessive Delay in California………………………………………...…21
3. Ineffective Assistance of Counsel…………………………………...…..27
4. The Risk of Wrongful Executions, Wrongful Convictions and
Wrongful Death Sentences………………………………………………30
5. Recommendations for the Trial of Death Penalty Cases…………..….…34
6. Recommendations for the Direct Appeal of Death Penalty Cases……....44
7. Recommendations for State Habeas Corpus Review of Death
Judgments…………………………………………………………..……50
8. Recommendations for Federal Habeas Corpus Review of
California Death Judgments……………………………………………..56
PART B: AVAILABLE ALTERNATIVES.
1. The Alternative of Narrowing the List of Special Circumstances………60
2. The Alternative of Establishing the Maximum Penalty at
Lifetime Incarceration…………………………………………..…….…71
3. Estimating the Annual Costs of Four Alternatives…………….………...77
PART C: ADMINISTRATIVE REFORMS.
1. Reducing the California Supreme Court Backlog…………………….....85
2. Explaining Racial and Geographic Disparities……………………….….90
3. Comprehensive Data Collection and Monitoring………………….…….96

i

4. The Need for Greater Transparency in the Exercise of
Prosecutorial Discretion to Pursue the Death Penalty…………………102
5. The Governor’s Clemency Power in Death Penalty Cases…………….104
CONCLUSION…………………………………………………………...107
APPENDIX I: FOCUS QUESTIONS………………………..…………...111
APPENDIX II: FEDERAL GRANTS OF RELIEF IN
CALIFORNIA CAPITAL CASES………………………………...………113

ii

INTRODUCTION: CHARGE AND NATURE OF INQUIRY.
The California Commission on the Fair Administration of Justice was
established in 2004 by California State Senate Resolution No. 44 to carry out
the following charges:
(1) To study and review the administration of criminal justice in
California to determine the extent to which that process has failed in
the past, resulting in wrongful executions or the wrongful conviction
of innocent persons;
(2) To examine ways of providing safeguards and making
improvements in the way the criminal justice system functions;
(3) To make any recommendations and proposals designed to further
ensure that the application and administration of criminal justice in
California is just, fair, and accurate.
In carrying out these charges, the Commission has undertaken a thorough
review and analysis of the administration of the death penalty in California.
This is the first time since the California death penalty law was legislatively
enacted in 1977 that any official body has undertaken a comprehensive
review of its operation. The Commission funded a feasibility study by the
Rand Corporation, and independent research by professors at California law
schools, to examine particular aspects of death penalty administration in
California. 1 A recent analysis of California’s death row deadlock by Senior

1

Professors Harry Caldwell, Carol Chase and Chris Chambers of Pepperdine University School of Law
conducted research to identify the processes by which California District Attorneys decide to proceed with
a homicide prosecution as a death penalty case; Professor Ellen Kreitzberg of Santa Clara University
School of Law conducted research to identify which special circumstances were utilized in all cases

1

Judge Arthur Alarcon of the United States Court of Appeals for the Ninth
Circuit was especially helpful to the Commission. 2 The Commissioners also
considered the research and recommendations of numerous other academics
and organizations who have studied the operation of California’s death
penalty law, as well as the laws of other states.
The Commission convened three public hearings, in Sacramento, Los
Angeles and Santa Clara, and heard the views of 72 witnesses. The
witnesses described a system that is close to collapse. The elapsed time
between judgment and execution in California exceeds that of every other
death penalty state. 3 California now has the largest death row in the nation,
with 670 awaiting execution. 4
The initial witnesses before the Commission offered thoughtful
proposals to address the problems of justice, fairness and accuracy in the
administration of California’s death penalty law. Based upon their

resulting in a death judgment in California since 1977; and Professors Linda E. Carter and Mary Beth
Moylan of the University of the Pacific, McGeorge School of Law conducted research regarding the use of
commutation in California death penalty cases. The results of this research are available on the
Commission’s website, www.ccfaj.org, and will be summarized in this Report.
2

Arthur L. Alarcon, Remedies for California’s Death Row Deadlock, 80 U.S.C.L. Rev. 697 (2007).

3

Latzer & Cauthern, Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study (John
Jay College of Criminal Justice, 2006).
4

The Death Penalty Information Center tracks the population of each State’s death row based upon
information from official prison sources. As of February, 2008, there were a total of 3,263 men and
women on the nation’s death rows.

2

presentations, subsequent witnesses were asked to respond to eleven “focus
questions” compiled by the Commission. 5
Commissioners heard the testimony of judges, prosecutors, and
defense lawyers actively engaged in the administration and operation of
California’s death penalty law, as well as academics, victims of crime,
concerned citizens and representatives of advocacy organizations. A total of
66 written submissions addressing these questions were also received.
The Commission does not view its charge in Senate Resolution No. 44
as calling for a judgment on the morality of the death penalty. The
Commissioners hold a broad spectrum of divergent views on the death
penalty, some of which are reflected in individual statements attached to this
report.
After careful study, the Commission finds itself in full agreement with
California Chief Justice Ronald M. George in his conclusion that
California’s death penalty system is dysfunctional. 6
The system is plagued with excessive delay in the appointments of
counsel for direct appeals and habeas corpus petitions, and a severe backlog
in the review of appeals and habeas petitions before the California Supreme
Court. Ineffective assistance of counsel and other claims of constitutional
5

The “focus questions” are attached to this report as Appendix I.

6

Testimony of California Chief Justice Ronald M. George, January 10, 2008.

3

violations are succeeding in federal courts at a very high rate. Thus far,
federal courts have rendered final judgment in 54 habeas corpus challenges
to California death penalty judgments. Relief in the form of a new guilt trial
or a new penalty hearing was granted in 38 of the cases, or 70%. 7
The Chief Justice told the Commission that if nothing is done, the
backlogs in post conviction proceedings will continue to grow “until the
system falls of its own weight.” While some opponents of the death penalty
might welcome such a prospect, the members of this Commission believe
that doing nothing would be the worst possible course. The failures in the
administration of California’s death penalty law create cynicism and
disrespect for the rule of law, increase the duration and costs of confining
death row inmates, weaken any possible deterrent benefits of capital
punishment, 8 increase the emotional trauma experienced by murder victims’
families, and delay the resolution of meritorious capital appeals.

7

See Appendix II, infra. If a case is remanded for a new trial or a new penalty hearing, the defendant is
removed from death row. The case is returned to the State courts to start over. At that point, there may be
a disposition by a plea admitting to lesser criminal culpability or accepting a sentence of life without the
possibility of parole (LAOP), a dismissal of charges or the death sentence, or a new guilt trial or penalty
hearing before another jury. If it results in another death sentence, the process of direct appeal and habeas
corpus petitions begins anew.
8

Whether the death penalty has a deterrent effect is a hotly contested issue. Compare Dr. Paul Rubin,
Testimony Before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the
Committee on the Judiciary, U.S. Senate, Feb. 1, 2006, with Donohue & Wolfers, Uses and Abuses of
Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005), and see Shepard, Murders of
Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. Legal Studies 283 (2004). If
there is a deterrent value, however, it is certainly dissipated by long intervals between judgment of death
and its execution.

4

The Commission heard moving testimony from the parents and other
relatives of murder victims who await the execution of the perpetrator.
Some described the anger and frustration they experience over continuing
delays in the administration of the death penalty. Several have waited
twenty-five or thirty years for the execution of the perpetrator of a vicious
murder of a son or a daughter. Many others expressed opposition to the
death penalty, arguing that they will receive no consolation from the
execution of someone who murdered a family member. Both views received
the respectful consideration of the Commission.

SUMMARY OF RECOMMENDATIONS
This report is divided into three parts. In Part A, the Commission
identifies flaws in California’s death penalty system that render it
dysfunctional, and remedies we unanimously recommend to repair it.
Repairing the system would enable California to achieve the national
average of a twelve year delay between pronouncement of sentence and the
completion of all judicial review of the sentence. In Part B, the Commission
offers the Legislature, the Governor, and the voters of California information
regarding alternatives available to California’s present death penalty law.
The Commission makes no recommendation regarding these alternatives. In

5

Part C, the Commission presents recommendations relating to miscellaneous
aspects of the administration of California’s death penalty law. We were not
able to reach unanimous agreement upon all of these recommendations, and
dissents are noted where applicable. Commissioner Jerry Brown, Attorney
General of California, agrees in principle with some of the Commission’s
recommendations as set forth in his separate statement. Commissioner
William Bratton, Chief of Police for the City of Los Angeles, abstains from
the specific recommendations in this Report, and will issue a separate
explanatory statement.
Part A: Why the system is broken, and what it will take to fix it.
In 1978, the people of the State of California expressed their support
for the death penalty and, accordingly, the death penalty is the law of this
State. However, it is the law in name only, and not in reality.
We currently have a dysfunctional system. The lapse of time from
sentence of death to execution averages over two decades in California. Just
to keep cases moving at this snail’s pace, we spend large amounts of
taxpayers’ money each year: by conservative estimates, well over one
hundred million dollars annually. The families of murder victims are cruelly
deluded into believing that justice will be delivered with finality during their
lifetimes. Those condemned to death in violation of law must wait years

6

until the courts determine they are entitled to a new trial or penalty hearing.
The strain placed by these cases on our justice system, in terms of the time
and attention taken away from other business that the courts must conduct
for our citizens, is heavy. To reduce the average lapse of time from sentence
to execution by half, to the national average of 12 years, we will have to
spend nearly twice what we are spending now.
The time has come to address death penalty reform in a frank and
honest way. To function effectively, the death penalty must be carried out
with reasonable dispatch, but at the same time in a manner that assures
fairness, accuracy and non-discrimination. The California Commission on
the Fair Administration of Justice unanimously recommends the following
steps to achieve the goals of California’s death penalty law:
1. The Commission recommends that the California Legislature
immediately address the unavailability of qualified, competent attorneys
to accept appointments to handle direct appeals and habeas corpus
proceedings in California death penalty cases:
A. The Commission recommends that the backlog of cases awaiting
appointment of counsel to handle direct appeals in death penalty cases
be eliminated by expanding the Office of the State Public Defender to an

7

authorized strength of 78 lawyers. This will require a 33% increase in
the OSPD Budget, to be phased in over a three year period. 9
B. The Commission recommends that the backlog of cases awaiting
appointment of counsel to handle habeas corpus proceedings in death
penalty cases be eliminated by expanding the California Habeas Corpus
Resource Center to an authorized strength of 150 lawyers. This will
require a 500% increase in the CHCRC Budget, to be phased in over a
five year period. 10
C. The Commission recommends that the staffing of the Offices of the
Attorney General which handle death penalty appeals and habeas
corpus proceedings be increased as needed to respond to the increased
staff of the Office of the State Public Defender and the California
Habeas Corpus Resource Center.
D. The Commission recommends that funds be made available to the
California Supreme Court to ensure that all appointments of private
counsel to represent death row inmates on direct appeals and habeas
corpus proceedings comply with ABA Guidelines 4.1(A), and are fully
compensated at rates that are commensurate with the provision of high
quality legal representation and reflect the extraordinary
9

Commissioner Hersek abstains from this recommendation.

10

Commissioner Laurence abstains from this recommendation.

8

responsibilities in death penalty representation. Flat fee contracts
should not be utilized unless an hourly alternative is available, and any
potential conflicts of interest between the lawyer maximizing his or her
return and spending for necessary investigation, and expert assistance
and other expenses are eliminated.
2. The Commission recommends that funds be appropriated to fully
reimburse counties for payments for defense services pursuant to
California Penal Code Section 987.9.
3. The Commission recommends that the California Legislature
reexamine the current limitations on reimbursement to counties for the
expenses of homicide trials contained in Government Code Sections
15200-15204.
4. The Commission recommends that California counties provide adequate
funding for the appointment and performance of trial counsel in death
penalty cases in full compliance with ABA Guidelines 9.1(B)(1), 3.1(B), and
4.1(A)(2). Flat fee contracts that do not separately reimburse investigative
and litigation expenses should not be permitted. Such contracts should not be
utilized unless an hourly alternative exists. In all cases, attorneys must be
fully compensated at rates that are commensurate with the provision of high

9

quality legal representation and reflect the extraordinary responsibilities in
death penalty representation.
Part B: Available Alternatives.
The remedies which the Commission has proposed in Part A will require the
new investment of at least $95 million dollars per year. We recognize that
we call for this investment in the face of a budget crisis of great magnitude
for California. The Commission has examined two alternatives available to
California to reduce the costs imposed by California’s death penalty law.
First, to reduce the number of death penalty cases in the system by
narrowing the list of special circumstances that make one eligible for the
death penalty, and second, to replace the death penalty with a
maximum penalty of lifetime incarceration without the possibility of
parole.
Using conservative rough projections, the Commission estimates the
annual costs of the present system ($137 million per year), the present
system after implementation of the reforms recommended in Part A ($232.7
million per year), a system in which significant narrowing of special
circumstances has been implemented ($130 million per year), and a system
which imposes a maximum penalty of lifetime incarceration instead of the
death penalty ($11.5 million). There may be additional alternatives or

10

variations which the Commission has not considered. While the
Commission makes no recommendations regarding these alternatives, we
believe they should be presented so the public debate over the future of the
death penalty in California will be fully informed.
Whether to do nothing, to make the investments needed to fix
the current system, to replace the current system with a narrower death
penalty law, or to replace capital punishment with lifetime incarceration are
ultimately choices that must be made by the California electorate, balancing
the perceived advantages gained by each alternative against the potential
costs and foreseeable consequences. We hope the balancing required can
take place in a climate of civility and calm discourse. Public debate about
the death penalty arouses deeply felt passions on both sides. The time has
come for a rational consideration of all alternatives based upon objective
information and realistic assessments. As U.S. Supreme Court Justice John
Paul Stevens observed in his recent concurrence in the judgment upholding
execution by lethal injection:
The time for a dispassionate, impartial comparison of the enormous
costs that death penalty litigation imposes on society with the benefits
that it produces has certainly arrived. 11
11

Baze v. Rees, No. 07-5439, U.S. Supreme Court (Stevens, J. concurring) (April 16, 2008). Justice
Stevens took particular note of California’s death penalty stalemate:
Some argue that these costs are the consequence of judicial insistence on unnecessarily elaborate
and lengthy appellate procedures. To the contrary, they result “in large part from the States’
failure to apply constitutionally sufficient procedures at the time of initial [conviction or]
sentencing.” Knight v. Florida, 528 U.S. 990, 998 (1999) (Breyer, J., dissenting from denial of

11

Part C: Administrative Reforms.
In the course of its work, the Commission examined many aspects of
the administration of California’s death penalty law, including the California
Supreme Court backlog of undecided cases, racial and geographic disparities
in employment of the death penalty, the unavailability of accurate
information regarding the administration of the death penalty, the
transparency of prosecutorial decision-making, and the implementation of
the Governor’s clemency power. We were not able to achieve unanimous
agreement with respect to some of these issues, but a majority of the
Commission concurs in all of the following recommendations:
1. The Commission recommends that upon the implementation of the
Recommendations in Part A of this Report, serious consideration be
given to a proposed constitutional amendment to permit the California
Supreme Court to transfer fully briefed pending death penalty appeals
from the Supreme Court to the Courts of Appeal. This amendment
should not be adopted without the provision of adequate staff and

certiorari). They may also result from a general reluctance by States to put large numbers of
defendants to death, even after a sentence of death is imposed. Cf. Tempest, Death Row Often
Means Long Life: California condemns many murderers, but few are ever executed, L.A. Times,
Mar. 6, 2006, p. B1 (noting that California death row inmates account for about 20% of the
Nation’s death row population, but that the State accounts for only 1% of the Nation’s executions).
In any event, they most certainly are not the fault of judges who do nothing more than ensure
compliance with constitutional guarantees prior to imposing the irrevocable punishment of death.

12

resources for the Courts of Appeal, and provisions for ongoing
monitoring by the Supreme Court. 12
2. The Commission recommends that upon the implementation of the
Recommendations in Part A of this Report, changes to California
statutes, rules and policies be seriously considered to encourage more
factual hearings and findings in state habeas proceedings in death
penalty cases, including a proposal to require petitions be filed in the
Superior Court, with right of appeal to the Courts of Appeal and
discretionary review by the California Supreme Court.
3. The Commission recommends the establishment of a California
Death Penalty Review Panel, to be composed of judges, prosecutors,
defense lawyers, law enforcement representatives and victim advocates
appointed by the Governor and the Legislature. It should be the duty of
this Panel to issue an annual report to the Legislature, the Governor
and the courts, gauging the progress of the courts in reducing delays,
analyzing the costs of and monitoring the implementation of the
recommendations of this Commission, and examining ways of providing

12

Commissioners Bellas, Cottingham, Hill, Hing, Moulds, Ridolfi and Totten oppose this recommendation.

13

safeguards and making improvements in the way the California death
penalty law functions. 13
4. The Commission recommends that reporting requirements be
imposed to systematically collect and make public cumulative data
regarding all decisions by prosecutors in murder cases whether or not
to charge special circumstances and/or seek the death penalty, as well as
the disposition of such cases by dismissal, plea or verdict in the trial
courts. The Legislature should impose a requirement upon courts,
prosecutors and defense counsel to collect and report any data other
than privileged material designated by the California Death Penalty
Review Panel which may be necessary: (1) to determine whether
demographics affect decisions to implement the death penalty, and if so,
how; (2) to determine what impact decisions to seek the death penalty
have upon the costs of trials and post-conviction review; and (3) to track
the progress of potential and pending death penalty cases to predict the
future impact upon the courts and correctional needs. The information
should be reported to the California Department of Justice and the

13

Commissioners Hill, Mayorkas and Totten oppose this recommendation.

14

California Death Penalty Review Panel. The information reported
should be fully accessible to the public and to researchers. 14
5. The Commission recommends that each District Attorney Office in
California formulate a written Office Policy describing when and how
decisions to seek the death penalty are made, such as who participates in the
decisions, and what criteria are applied. Such policies should also provide for
input from the defense before the decision to seek the death penalty is made.
6. The Commission recommends that Article V, Section 8(a) of the California
constitution be amended to read as follows:
Art. V, Section 8(a). Subject to application procedures provided
by statute, the Governor, on conditions the Governor deems
proper, may grant a reprieve, pardon, and commutation, after
sentence, except in case of impeachment. The Governor shall
report to the Legislature each reprieve, pardon, and commutation
granted or denied. stating the pertinent facts and the reasons for
granting it. The Governor may not grant a pardon or
commutation to a person twice convicted of a felony except on
recommendation of the Supreme Court, 4 judges concurring.
7. The Commission recommends that Penal Code Section 4813 be
amended to make it discretionary rather than mandatory that requests
for clemency by a twice convicted felon be referred to the Board of
Prison Terms for a written recommendation.

14

Commissioners Boscovich, Cottingham, Dunbar, Hill, Mayorkas, Fox and Totten oppose this
recommendation.

15

PART A: WHY THE SYSTEM IS BROKEN, AND WHAT IT WILL
TAKE TO FIX IT.
1. California’s Death Penalty Law.
The current California death penalty law was adopted by popular
initiative in 1978, after the United States Supreme Court declared that
providing guidance to fact-finders to narrow the exercise of their sentencing
discretion was required by the Eighth Amendment prohibition of cruel and
unusual punishment, incorporated by the due process clause of the
Fourteenth Amendment to the United States Constitution.15
California law requires three separate findings before a sentence of
death may be imposed. First, the fact-finder (normally a jury, unless the
right to jury trial has been waived) must determine that the defendant is
guilty of first-degree murder. 16 Second, the fact-finder must determine that
one or more of twenty-one separately enumerated “special circumstances” is
true. 17 Both of these findings require proof beyond a reasonable doubt
15

Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976).

16

California Penal Code Section 189 defines first degree murder to include “all murder which is
perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other
kind of willful, deliberate, and premeditated killing,” murder committed in the perpetration of any of
thirteen enumerated felonies [arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, torture, sodomy, lewd acts against a child, unlawful oral copulation, and unlawful sexual
penetration], and murder perpetrated “by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death.”
17

California Penal Code Section 190.2 (a) defines twenty-two special circumstances. The special
circumstance enumerated in Section 190.2(a)(14) (the murder was “especially heinous, atrocious or cruel”)

16

during the initial “guilt phase” of the trial. If the defendant is convicted of
first-degree murder and a special circumstance is found true, a “penalty
phase” trial follows, at which the fact-finder considers evidence of “any
matter relevant to aggravation, mitigation, and sentence.” 18 At the
conclusion of the penalty phase, the jury is instructed as follows:
Determine which penalty is appropriate and justified by
considering all the evidence and the totality of any aggravating
and mitigating circumstances. Even without mitigating
circumstances, you may decide that the aggravating circumstances,
are not substantial enough to warrant death. To return a judgment
of death, each of you must be persuaded that the aggravating
circumstances both outweigh the mitigating circumstances and are
also so substantial in comparison to the mitigating circumstances
that a sentence of death is appropriate and justified. 19
California’s definition of special circumstances gives broad discretion
to prosecutors to decide whether a homicide should be prosecuted as a death
penalty case. A narrower death penalty law was initially enacted by the
California Legislature in 1977; the enactment of the Briggs Initiative one
year later more than doubled the number of special circumstances itemized
under Penal Code Section 190.2, by adding five more “victim”
circumstances, four more “felony murder” circumstances, and two more
“motive” circumstances. In addition, the initiative removed the
was declared unconstitutional by the California Supreme Court in People v. Superior Court (Engert), 31
Cal.3d 797 (1982).
18

California Penal Code Section 190.3.

19

CAL. CRIM. Jury Instruction No. 766 (2008).

17

requirements in the pre-Briggs statute that the state had to prove that a
murderer possessed the intent to kill before he or she could be eligible for
the death penalty, and that an accomplice was personally present and
physically aided the death-causing acts before he could be eligible for the
death penalty. Under the death penalty statute now in effect, 87% of
California’s first degree murders are “death eligible,” and could be
prosecuted as death cases. 20
In 1978, under the pre-Briggs statute enacted by the Legislature, only
seven death sentences were handed down in California. The number tripled
to 20 in 1979, then climbed to an average of 32 new death judgments per
year during the twenty-one year period from 1980 to 2000. Since 2000, the
number of new death judgments has declined to an average of 20 per year.
The following chart shows the growth of California’s death row from 1978
through 2007.

20

Steven F. Shatz and Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72
N.Y.U. L. Rev. 1283, 1331 (December, 1997).

18

CALIFORNIA DEATH JUDGMENTS AND DEATH ROW POPULATION 21
1978 - 2007
Year
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007

New Death Judgments
7
20
23
39
39
35
27
16
21
25
34
33
33
26
40
34
21
38
40
40
32
42
33
25
17
22
12
22
22
20

Death Row Population
7
25
42
80
113
143
161
159
179
203
223
247
279
305
345
374
391
426
461
493
518
558
589
610
618
639
642
654
662
670

21

California Dept. of Justice, Criminal Justice Statistics Center, Homicide in California, 2005, Table 35.
2006 and 2007 statistics courtesy of California Appellate Project.

19

The death row population does not precisely correspond with the
cumulative number of new death judgments rendered each year. This is
because death sentences may be set aside by the courts, persons may die in
prison without being executed, be re-sentenced to death, removed pending
retrial, re-sentenced to a penalty less than death, or freed.
The Commission’s researchers identified 822 sentences of death
imposed in California from 1977 through 2007, upon 813 different
defendants. (Nine defendants had sentences of death in more than one
county). The difference between the 813 individuals sentenced to death and
the 2007 population of California’s death row (670) is attributable to deaths
by natural causes (38), suicides (14), executions (13), and death judgments
which have been reversed by the courts and not reinstated on remand (98). 22
The number of persons on California’s death row is currently driven
by factors over which we have no direct control. If the current average of 20
new death judgments per year is maintained, full implementation of the
Commission’s recommendations could begin to reduce the size. But the
backlog is now so severe that California would have to execute five
22

Many of the reversals occurred from 1979 through 1986, when the California Supreme Court reversed 59
of 64 judgments of death it reviewed. Since the removal of three Justices in the election of 1986 and their
subsequent replacement, the affirmance rate of the California Supreme Court for death judgments has
exceeded 90%. See Uelmen, Review of Death Penalty Judgments By the Supreme Courts of California: A
Tale of Two Courts, 23 Loyola (L.A.) L. Rev. 237 (1989). In recent years, 32 California death judgments
have been set aside by federal courts in habeas corpus proceedings. Of the federal habeas petitions of
California death row inmates decided by federal courts since 1978, some relief has been granted in 70% of
the cases.

20

prisoners per month for the next twelve years just to carry out the sentences
of those currently on death row.
2. Excessive Delay in California.
A defendant sentenced to death in California has a right to three stages
of review of the conviction and sentence: an automatic appeal directly to the
California Supreme Court; a petition for a writ of habeas corpus filed in the
California Supreme Court; and a federal habeas corpus petition filed in the
Federal District Court. 23
At each of these three stages, the defendant is entitled to the
appointment of counsel if he or she is indigent. All of the 670 inmates on
California’s death row qualify as indigents, although counsel has been
retained in one case (Scott Peterson). Review of the California Supreme
Court’s decision of the direct appeal and the state habeas corpus petition can
be sought in the United States Supreme Court by petition for a writ of
certiorari. A Federal District Court ruling on a federal habeas corpus
petition can be appealed to the United States Court of Appeals for the Ninth
Circuit, and review of that Court’s decision can be sought in the United

23

Habeas corpus petitions provide a vital means of determining whether constitutional standards have been
met and a defendant received effective assistance of counsel at the guilt and penalty phases of the trial. An
independent investigation is required, and it often uncovers mitigating evidence that was available but was
not presented at trial. The leading ground for reversal of death verdicts in California in both state and
federal habeas proceedings is a denial of the constitutional right to effective assistance of counsel.

21

States Supreme Court. A defendant can also petition the Governor for
clemency prior to his or her execution.
The United States Department of Justice has tracked the elapsed time
from sentence to execution for all defendants who have been executed in the
United States since 1978. The average lapse of time has grown steadily
throughout the United States, from an average of 4.25 years during the
period of 1977 to 1983, to an average of 12.25 years in 2005. 24 The average
lapse of time between pronouncement of a judgment of death and execution
in California is 17.2 years, but using an “average” number may be
misleading since only thirteen have been executed. 25
While it is widely assumed that delays benefit those confined on death
row by prolonging their lives, it should be noted that California inmates with
meritorious claims are also denied prompt disposition of those claims. In
cases where the judgment of guilt and/or the sentence were vacated between
1987 and 2005, the average delay was 11 years. California death row
inmates whose convictions or sentences were vacated by a federal court
waited an average of 16.75 years.26

24

U.S. Bureau of Justice Statistics, 2006:11, table 11.

25

Two of the California executions have been of “volunteers,” who withdrew their appeals and habeas
petitions and requested execution.
26

Alarcon, Remedies for California’s Death Row Deadlock, supra n 2.

22

A recent study by Senior Judge Arthur Alarcon of the U.S. Court of
Appeals for the Ninth Circuit identified the critical periods of delay that
contribute to California exceeding the national average. 27
First is the delay in appointing counsel to handle the direct appeal.
There are currently 79 defendants on death row who have not yet had
counsel appointed to handle their direct appeal to the California Supreme
Court. There is now a wait of 3 to 5 years before appellate counsel is
appointed. Delay in appointing appellate counsel also delays certification of
the accuracy of the record, since the accuracy of the record cannot be
certified until appellate counsel is appointed. 28
Second is the delay in scheduling the case for a hearing before the
California Supreme Court after all of the briefs have been submitted. The
California Supreme Court now has a backlog of 80 fully briefed automatic
appeals in death cases awaiting argument. The Court ordinarily hears 20-25
of these cases each year, so the wait for an oral argument now averages 2.25
years.
Third is the delay in appointing counsel for the state habeas corpus
petition. There are now 291 inmates on California’s death row who do not
27

Id.

28

California Penal Code Section 190.8(g) requires the trial court to certify the record for accuracy no later
than 120 days after the record has been delivered to appellate counsel. Certification of the record for
completeness ordinarily takes place within 90 days of the imposition of the death sentence.

23

have counsel appointed to handle their habeas corpus petitions. Delays of 810 years after sentence in appointing habeas counsel mean that investigation
and preparation of habeas petitions is usually delayed until after the direct
appeal is decided. Prompt appointment of habeas counsel would permit the
habeas petition to be prepared while the appellate briefing is being prepared,
so it can be promptly filed shortly after the direct appeal is decided, if the
death sentence is affirmed.
Fourth is the delay in deciding state habeas corpus petitions. The
California Supreme Court currently has 100 fully briefed habeas corpus
petitions awaiting decision. While these cases are rarely decided by
published opinions, there is now an average delay of 22 months between the
filing of the petition and the decision of the California Supreme Court.
Fifth is the delay in deciding federal habeas corpus petitions. The
average delay from the filing of a habeas petition to the grant or denial by a
federal district court is 6.2 years in California cases. 29 Another 2.2 years are
consumed by appeals to the Ninth Circuit. Much of this delay is attributable
to the absence of a published opinion and/or an evidentiary hearing in the
state courts. Often, the federal courts cannot ascertain why state relief was
denied. While the Antiterrorism and Effective Death Penalty Act

29

Alarcon, supra n.2 at, 707-708 .

24

(AEDPA) 30 requires federal deference to state factual findings and legal
conclusions, the typical denial of a habeas petition in a death case by the
California Supreme Court contains neither.
The following chart summarizes the lapse of time at each of the
various stages as the system currently operates in California. The total
lapsed time from judgment of death to execution is 20-25 years.

Hearing of direct appeal
by CA Supreme Court;

Ruling on federal

Appointment of habeas

habeas petItion by

counsel

US District

Court

Decision of dilect appeal

Ruling on appeal of

by CA Supreme Coult

District Court by 9th
CirCUIt Court of Appeal

Denial of state habeas
corpus petrtion by CA
Supreme Court

Ruling on cert
pehlJon by US

EntIY of judgmenl of death

AppcMntmenlof
lawyer for direct

"""""""
filing

Filing of federal

by taal coo,t

""""

of briefs

habeas corpus. petition

r:::

US SUPREME
COURT
US COURT OF APPEALS
FOR 9TH CIRCUIT
US FEDERAL
DISTRICT COURT
CA SUPREME
COURT

o

2

3

4

5

6

8

9

10

II

12

13

14

15

16

17

18

19

20 21

22

23

24

25

UNDER CURRENT CONDITIONS, TOTAL lAPSED TIME 20-25 YEARS

30

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that the Antiterrorism and Effective
Death Penalty Act (AEDPA) imposes a deferential standard of review that precludes a federal habeas court
from granting relief based simply on its independent assessment of federal law. Under AEDPA, federal
habeas courts must defer to a state court’s rejection of a petitioner's constitutional claim unless the state
court’s decision is either contrary to or involves an unreasonable application of established federal law.

25

The Commission recommends a series of related reforms that have the
potential to reduce the California delay to the national average of 11-14
years. The following chart summarizes the potential effects of these
proposed reforms:
Healing of direcl appeal by
CA Ct 01 Appeal
Filing of slale ""'beas petition
m Superl(l( Ct; heanng of
case by CA Cl of Appeal
DeciSIon of d,recl appeal
by Court of Appeal

Enby of judgmenl of
death by \Jial coort

Review of Cl of Appeal
ruhng by CA S1Jpreme Ct

Appoinlment of separate
Iawyeo-s fOt allecl appeal

and

Ruling on stale
""'beas by Superl(l( Cl

""'!:leas
Com~ted

Ruling on Federal Habeas
Petition by US Oislrict Ct

Review of state
habeas petItion by
Cl of Appeal

filing

of twiefs lOt
direct appeal

Ruhng Ofl appeal of Drst. Ct
by 9th Circuit Ct of Appeal
Rulmg on cerl. pellIJOll
by US Supreme Cl

Filing of federal
habeas corpus
pelltion

us SUPREME
COURT
US COURT OF APPEALS
FOR 9TH CIRCUIT
US FEDERAL
DISTRICT COURT
CA SUPREME
COURT
CA COURT
OF APPEAL
CA SUPERIOR
COURT

o

3

4

6

8

9

ill

11

12

G

M

ffi

16

U

lli

~

~

21

n

n

~

3

WITH RECOMMENDED REFORMS, TOTAL LAPSED TIME -11-14 YEARS

Delays grow worse every year. As the population of California’s
death row has grown, the length of the delay between sentence and
disposition of appellate reviews has grown as well. Thirty persons have
been on California’s death row for more than 25 years; 119 have been on
death row for more than 20 years; and 240 have been on death row for more

26

~

27

than 15 years. 31 The delay between sentence and execution in California is
the longest of any of the death penalty states. 32
3. Ineffective Assistance of Counsel.
Delay in post-conviction review is not the only dysfunction in
California’s death penalty law. Federal courts are granting relief in 70% of
the California death judgments they review, most often because of
ineffective assistance of counsel at the trial level. 33 Thus, the appointment
and performance of qualified trial counsel, and the resources available to
counsel to adequately investigate and prepare the case, are subjects of
serious concern in the administration of California’s death penalty law.
For counties without a public defender, the appointment of trial
counsel for death penalty cases is left to the discretion of the trial court,

31

Alarcon, supra n. 2 at p. 748.

32

One might fairly ask, why can’t California be as efficient as Florida, Texas or Virginia? The next two
largest death rows after California are Florida with 397 and Texas with 393. Florida has carried out 64
executions since 1978, Texas has executed 405, and Virginia has executed 94. Virginia is the most
expeditious in disposing of death penalty direct appeals, averaging less than one year compared to the
national average of four years. No one has been on Virginia’s death row longer than ten years. In Texas,
the average delay for the direct appeal is three years. The average time on death row before execution in
Texas is 10.26 years. The average in Florida is 14 years. Virginia now has a backlog of only 23 cases. It
should also be noted, however, that Florida, Virginia and Texas have high rates of exonerations of innocent
persons, including death row inmates. Florida has had 22 death row exonerations, more than any other
state. Since 1989, there have been 33 exonerations in Texas by DNA. Eight death row inmates have been
exonerated. Virginia has recorded eight exonerations, all but one by DNA. Two of the exonerees were
sentenced to death. It is also worth noting that none of these states have experienced the serious backlog
that has affected the California Supreme Court. The Virginia Supreme Court receives an average of three
new death judgments a year. In Texas, death penalty appeals are not heard by the State Supreme Court, but
by a special Court of Criminal Appeals that does not have the responsibility of determining state law in
other than criminal cases. The Florida Supreme Court reviews all death sentences for proportionality, and
has the highest reversal rate in the nation for death penalty cases.

33

See Appendix II, infra.

27

subject to California Rules of Court, Rule 4.117, which defines the
minimum qualifications for appointed trial counsel in capital cases. In most
cases, two attorneys are appointed, one to act as lead counsel, and one to
serve as associate counsel. 34 Some counties appoint a single lawyer. 35 The
American Bar Association Guidelines recommend that the defense team for
capital cases should consist of no fewer than two lawyers, an investigator,
and a mitigation specialist from the outset of representation. 36 Typically,
associate counsel directs an intensive investigation of the defendant’s social
history and background, to develop potential evidence of mitigation for the
penalty phase.
In Los Angeles County, approximately half of the ongoing death
penalty cases are handled by the Public Defender, and half are handled by

34

Lead counsel must have ten years of criminal litigation experience, including at least two murder cases
tried to conclusion. Associate counsel must have three years of criminal litigation experience, including
three serious felony cases tried to conclusion. The court may appoint an attorney who does not meet all
required qualifications if it makes a finding that “the attorney demonstrates the ability to provide competent
representation to the defendant.” California Rule of Court Rule 4.117(i) requires the filing of an order of
appointment which certifies that appointed counsel meets the necessary qualifications. A recent survey
found that 42 of California’s 58 County Superior Courts had no such orders on file. Testimony of Prof.
Elisabeth Semel, Director of Death Penalty Clinic, University of California Law School at Berkeley, Feb.
20, 2008.

35

Testimony of Prof. Semel, February 20, 2008, at pp. 14-15.

36

American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases, Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases, Guideline 4.1 (A)(1) (Revised Edition, Feb. 2003):
4.1 A. The Legal Representation plan should provide for the assembly of a defense team that will provide
high quality legal representation.
1. The defense team should consist of no fewer that two attorneys qualified in accordance with Guideline
5.1, an investigator, and a mitigation specialist.
2. The defense team should contain at least one member qualified by training and experience to screen
individuals for the presence of mental or psychological disorders or impairments.

28

the Alternate Public Defender or appointed counsel. Under Rule 4.117(g),
public defender offices are supposed to assign deputies who otherwise meet
the requisite qualifications for direct appointment, but no certification of
those qualifications is required. Many county public defender offices assign
two counsel to every death eligible case when the appointment is initially
accepted. Where private counsel is appointed, however, only one lawyer is
ordinarily appointed until the decision is made to file the case as a death
case, which will not occur until after the preliminary hearing, as much as one
year later. This may delay the mitigation investigation to the prejudice of
the defendant. The results of mitigation investigations are frequently
employed to persuade the district attorney not to seek the death penalty. If
the investigation is delayed until second counsel is appointed, the decision to
seek the death penalty has already been made.
The payment of appointed counsel varies from one county to another.
At least four counties use flat-fee contracts negotiated on a case-by-case
basis. 37 The flat fee typically includes investigative and paralegal expenses,
creating a conflict of interest for the lawyer when these services will reduce
his or her return on the contract. The bids for flat-fee contracts must be
submitted before the lawyer has fully investigated the case, which creates a
37

Testimony of Prof. Elisabeth Semel, Feb. 20, 2008, at pp. 19-23.

29

risk of underbidding. The Committee learned that there is a declining pool
of competent experienced criminal defense lawyers who are willing to
accept employment to handle death penalty trials, because they are not
supplied sufficient funding to provide competent representation.38
4. The Risk of Wrongful Executions, Wrongful Convictions and
Wrongful Death Sentences.
The Commission has learned of no credible evidence that the State of
California has ever executed an innocent person. Nonetheless, the
Commission cannot conclude with confidence that the administration of the
death penalty in California eliminates the risk that innocent persons might be
convicted and sentenced to death. All of the factors previously identified by
the Commission as enhancing the risk of wrongful convictions are equally
present in capital and non-capital trials. Nationally, there were 205
exonerations of defendants convicted of murder from 1989 through 2003.
Seventy-four of them had been sentenced to death. Fourteen of these 205
murder cases took place in California. 39 Since 1979, six defendants
sentenced to death, whose convictions were reversed and remanded, were
subsequently acquitted or had their murder charges dismissed for lack of

38

Testimony of Clifford Gardner, Feb. 20, 2008.

39

Gross, Jacoby, Matheson, Montgomery & Patil, Exonerations in the United States, 1989 Through 2003,
95 J. of Crim. Law & Criminology 523 (2005).

30

evidence. 40 While DNA testing was not available and these defendants were
not officially exonerated, the reversal of their convictions freed them. A
subsequent acquittal or dismissal of charges renders them legally not guilty,
although there was no determination of “factual innocence” pursuant to
California Penal Code Section 851.8 in these cases.
Nationally, erroneous eye-witness identifications have been identified
as a factor in 80% of exonerations, and false confessions were a factor in
15%. 41 California State Public Defender Michael Hersek reported to the
Commission that of the 117 death penalty appeals currently pending in his
office, seventeen featured testimony by in-custody informants, and another
40

In 1979, the California Supreme Court reversed the 1976 conviction and death sentence of Ernest
Graham for the murder of a state correctional officer because prosecutors improperly excluded prospective
African-American jurors. The defendants were convicted of violating Penal Code section 4500, aggravated
assault by a life prisoner. At the time the offense was committed, section 4500 prescribed the death penalty
as the automatic, mandatory punishment whenever the assault was directed against a non-prisoner and
resulted in the victim's death within a year and a day. People v. Allen, 23 Cal.3d 286 (1979). After his
fourth trial on remand, Graham was acquitted by the jury. In 1984, the California Supreme Court reversed
the 1980 conviction and death sentence of Jerry Bigelow for the murder of a kidnap victim. People v.
Bigelow, 37 Cal.3d 731 (1984). In a 1988 retrial, Bigelow was acquitted. Morain, Inmate Walks Away
From Death Row After His Acquittal, Los Angeles Times, July 6, 1989. In 1985, the California Supreme
Court reversed the 1979 conviction and death sentence of Patrick Croy for the murder of a police officer in
Placer County, although the Court upheld a conspiracy conviction. In a 1990 retrial, Croy was acquitted of
the murder, but placed on probation for the conspiracy charge. After Croy was returned to prison in 1997
for a probation violation, the conspiracy charge was vacated in federal court, and Croy was released in
2005. In 1996, the California Supreme Court vacated the 1981 conviction and death sentence of Troy Lee
Jones for murder. The Fresno County District Attorney dismissed all charges against Jones in November,
1996. In 1988, the California Supreme Court vacated the 1983 death sentence of Oscar Lee Morris for
murder, for prosecutorial misconduct in not revealing leniency granted to a witness in exchange for his
testimony. People v. Morris, 46 Cal.3d 1 (1988). Ten years later, his conviction was vacated, when the
witness admitted he had fabricated the entire case against Morris. Morris was released in 2000, when the
Los Angeles County District Attorney declined to retry him. In 1989, the California Supreme Court
overturned the 1981 death sentence of Lee Perry Farmer, Jr. for murder. People v. Farmer, 47 Cal.3d 888
(1989). A 1991 penalty phase retrial resulted in a life sentence. In 1997, the Ninth Circuit Court of Appeals
overturned his conviction because of ineffective assistance of counsel. At a 1999 retrial, Farmer was
acquitted of the murder.
41

Supra n. 39 at p. 544.

31

six included testimony by informants who were in constructive custody. 42
The Commission’s recommendations to reduce the risks of wrongful
convictions resulting from erroneous eye-witness identifications, false
confessions, and testimony by in-custody informants, although enacted by
the Legislature, were all vetoed by Governor Arnold Schwarzenegger.
These factors remain as risks in all criminal cases in California, including
death penalty cases.
Identifying “wrongful” death sentences presents greater complexity,
since 87% of those charged with murder in California are eligible for the
death penalty, but fewer than 10% of these defendants are sentenced to
death. 43 By definition, these death sentences would not be “wrongful” in the
same sense that convictions would be “wrongful,” if the defendant were
properly convicted of the underlying murder. Yet if the defendant were
inappropriately singled out for a death sentence, or if his lack of economic
resources increased the probability of his death sentence, or if his lawyer
failed to present mitigating evidence that might have convinced a jury to opt
for a life sentence, or if the prosecutor suppressed exculpatory evidence, we

42

California Commission on the Fair Administration of Justice, Report and Recommendations Regarding
Informant Testimony, p. 2 (2007).
43

Steven F. Shatz and Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72
N.Y.U. L. Rev. 1283, 1331 (December, 1997).

32

would certainly conclude that his death sentence was “wrongful.” An
illustrative example can be found in the recent ruling of the California
Supreme Court in the case of In Re Adam Miranda, No. SO58528 &
SO60781 (May 5, 2008). The defendant was convicted of a robbery-murder
in Los Angeles in 1982. His conviction was affirmed in 1987, and three
prior petitions for habeas corpus were denied. Yet, after 26 years on death
row, the unanimous Court vacated his death sentence and remanded for a
possible new penalty trial. The only evidence in aggravation offered at Mr.
Miranda’s penalty trial was the testimony of Joe Saucedo that the defendant
had also murdered another individual two weeks before the capital crime,
after an argument over drugs. Saucedo had himself been charged with that
murder, but after he testified against Miranda, the charge was reduced and
he was granted probation. In 1996, it was disclosed to Miranda for the first
time that the prosecutor had a handwritten letter from a fellow prisoner of
Saucedo’s, recounting in detail how Saucedo described committing the
murder himself. The Court concluded this was a clear violation of the
prosecutor’s obligations to disclose exculpatory evidence under Brady v.
Maryland, 373 U.S. 83 (1963). 44 Miranda is not “innocent,” nor was he

44

See California Commission on the Fair Administration of Justice, REPORT AND
RECOMMENDATIONS ON COMPLIANCE WITH THE PROSECUTORIAL DUTY TO DISCLOSE
EXCULPATORY EVIDENCE. (March 6, 2008).

33

“wrongfully convicted,” but we would certainly conclude his death sentence
was “wrongful.”
A national study of all death sentences imposed from 1973 to 1995
revealed that 82% (247 out of 301) of the capital judgments that were
reversed and returned for a retrial or a new penalty hearing were replaced
with a sentence less than death, or no sentence at all. In the latter regard, 7%
(22/301) of the reversals for serious error resulted in a determination on
retrial that the defendant was not guilty of the capital offense. 45
5. Recommendations for the Trial of Death Penalty Cases.
The decision to seek the death penalty in a pending murder
prosecution triggers a number of consequences that affect the duration,
complexity and cost of the trial proceedings. Death penalty trials clearly
take longer and cost more than murder trials in which the death penalty is
not sought.
Unfortunately, we have only a rough estimate of how many death
penalty trials are taking place each year in California. The trials that result
in a judgment of death and put an additional inmate on death row are a
fraction of the cases that are actually tried, and an even smaller fraction of
the cases that are death-eligible. During a five-year period in the early
45

Liebman et al., A Broken System: Error Rates in Capital Cases, 1973-1995 (Columbia Law School,

2000).

34

1980’s, the State Public Defender was systematically collecting data about
ongoing death cases. At that time, for every 100 cases that were charged as
capital cases, 40 actually went to trial on the guilt phase, 20 went to penalty
phase, and 10 resulted in a judgment of death. 46 The rate of juries returning
verdicts of death may have declined since then, but the Commission could
not ascertain this rate because no one is keeping track. 47 If the rate is still
the same, the twenty annual death judgments we currently see are the
product of 200 cases per year in which special circumstances are charged, of
which 80 cases proceed to trial, and 40 cases proceed to penalty phase.
When California’s death penalty law was originally enacted, the
legislature recognized that the trial of death penalty cases would impose
serious financial burdens upon counties. Section 987.9 was added to the
California Penal Code, to provide that defense counsel in capital cases “may
request the court for funds for the specific payment of investigators, experts,
and others for the preparation or presentation of the defense,” and further
provides “the Controller may reimburse extraordinary costs in unusual cases

46

California Appellate Project, RECAP RE:CAPITAL LITIGATION, Issue 10, June 17, 1985. Collecting
all statewide special circumstance filings from August 11, 1977 through December 31, 1984, CAP
reported 2,219 filings, 960 guilty trials, 394 penalty trials, and 190 death verdicts, with 372 cases still
pending.

47

The Los Angeles County Public Defender’s Office reports that they normally have 60 cases at a time in
their office that are death-eligible, but only 10-12 of those cases will typically go to trial as death cases.
Testimony of Greg Fisher, Deputy Public Defender; Special Circumstance Case Coordinator, Los Angeles
County Public Defender’s Office, Feb. 20, 2008.

35

if the County provides sufficient documentation of the need for those
expenditures.” In fact, no funds have been appropriated for such
reimbursement for more than fifteen years, leaving counties to foot the bill.
As a result, the willingness of courts to grant Section 987.9 requests varies
significantly from county to county, with greater reluctance to grant requests
in cash-strapped counties. Access to investigators and experts necessary for
the defense of death penalty cases should not depend upon the vagaries of
county budgets. The State of California should meet the obligation
undertaken as part of the original death penalty law, to reimburse counties
for funds awarded pursuant to California Penal Code Section 987.9. The
Commission recommends that counties be fully reimbursed for payments for
defense services pursuant to California Penal Code Section 987.9. The
estimated annual cost of Section 987.9 payments for death penalty cases in
Los Angeles County in 2007 was $4.5 million.48 Los Angeles County
accounts for approximately one-third of California’s death sentences. Thus,
this recommendation will require an annual shift of roughly $13.5 million of
the current cost of death penalty trials in California from the counties to the
State.

48

Email to Commission from Robert E. Kalunian, Chief Deputy Public Defender, Los Angeles County,
May 14, 2008.

36

Another device for the State to reimburse smaller counties for the
costs incurred in connection with homicide trials is provided by California
Government Code Section 15200-15204. This provides that costs incurred
by the district attorney, sheriff and public defender or court-appointed
attorneys, except normal salaries and expenses, can be reimbursed by the
State “if such costs will seriously impair the finances of the county.” There
are two limitations upon these provisions that should be revisited by the
Legislature, however. Reimbursement is limited to costs “in excess of the
amount of money derived by the county from a tax of 0.0125 of 1 percent of
the full value of property assessed for purposes of taxation within the
county.” Section 15202(b). This formula will subject both the State and
smaller Counties to unpredictable fluctuations as property assessments rise
and fall in today’s housing market. Such factors have no relationship to the
need for reimbursement of unpredictable costs of homicide trials.
Second, Sections 15202(b) and 15202.1(a) require advance approval
of the Attorney General to reimburse costs of travel in excess of 1,000 miles.
Insofar as it applies to travel by defense counsel in homicide cases, this is an
inappropriate limitation. The Attorney General will be opposing counsel in
any appeals, creating a conflict of interest. The Commission recommends
that the California Legislature reexamine the limitations on reimbursement

37

to counties for the expenses of homicide trials contained in Government
Code Sections 15200-15204.
In an effort to identify the costs of death penalty trials, the ACLU of
Northern California, through a series of Public Records Act requests,
obtained all documents pertaining to reimbursements to smaller counties for
homicide trials for a ten year period, 1996 through 2005. The records
encompass claims submitted by 20 counties in 21 identifiable homicide trials
and 317 unidentified trials and hearings. The state paid $45.8 million to
reimburse counties during this ten-year period. The request yielded
relatively comprehensive accounting for ten trials each involving a single
defendant. Eight of these trials were death penalty cases, and two were not.
The three most expensive cases were the Charles Ng trial ($10.9 million to
Calaveras County), 49 the Donald Bowcutt case ($5 million to Siskiyou
County), 50 and the Scott Peterson case ($3.2 million to Stanislaus County). 51
Comparing the least expensive death penalty trial to the most expensive nondeath trial yielded a difference of $1.1 million more for the death case, but it

49

The Ng trial costs included $1.24 million for Court expenses, $2.2 million for Prosecution expenses, and
$6.42 million for Defense expenses.

50

The Bowcutt reimbursement was an advance payment of $5 million for anticipated costs. Actual costs
were not documented.
51

The Peterson reimbursement included $1.4 million for prosecution expenses and $1.4 million to the City
of Modesto for police expenses. Defense expenses were not reimbursed, since Peterson had retained
counsel.

38

is impossible to project this difference to all death penalty trials. As the
author of this study concedes, “Because there is no consistent or
comprehensive tracking of trial level costs across the state and so many costs
are hidden, it is impossible to say for certain how much more counties are
spending in pursuit of execution.” 52 It can certainly be said that death
penalty trials take longer and cost considerably more than non-death murder
trials. The records reviewed also confirm that it is feasible to track the trial
level costs in death penalty cases, if a uniform system of reporting data is
imposed.
During the penalty phase, it is the obligation of defense counsel to
present all available mitigating evidence which might persuade the jury to
reject a penalty of death. The leading cause of reversal of death judgments
in California is the failure of counsel to adequately investigate potential
mitigating evidence. In subsequent habeas corpus proceedings, in which
funds are made available for a complete investigation of the defendant’s
background, evidence is uncovered which, if presented at the penalty phase,
might have persuaded a jury to reject a death sentence. In Wiggins v. Smith,
539 U.S. 510 (2003), the U. S. Supreme Court held that trial counsel’s

52

Natasha Minsker, The Hidden Death Tax: The Secret Costs of Seeking Execution in California, A Report
by the ACLU of Northern California, p.32 (2008).

39

failure to investigate the defendant’s background and to present evidence of
the defendant’s unfortunate life history at the penalty phase of his trial was a
violation of defendant’s Sixth Amendment right to counsel, because his
failure had fallen below the standard of reasonableness under prevailing
professional norms. In defining prevailing professional norms, the Court
relied upon the guidelines for capital defense work articulated by the
American Bar Association (ABA Guidelines), “standards to which we long
have referred as ‘guides to determining what is reasonable.’” Id. at 524. The
Court cited the “well-defined norm” of Section 11.4.1 (C), which provides
that investigations into mitigating evidence “should comprise efforts to
discover all reasonably available mitigating evidence and evidence to rebut
any aggravating evidence that may be introduced by the prosecutor.” 53
In a number of cases, the California Supreme Court has concluded
that defense counsel’s investigation of mitigating circumstances was
inadequate, requiring reversal of the jury’s penalty determination in a death
case. 54 Most recently, in In Re Lucas, 33 Cal. 4th 682 (2004), the California
Supreme Court followed the Wiggins case in finding defense counsel’s
53

In the February, 2003 Revised Edition of the Guidelines, portions of Guideline 11.4.1(C) were moved to
Guidelines 10.5 and 10.7. Guideline 10.7 (A) now provides: “Counsel at every stage have an obligation to
conduct thorough and independent investigations relating to the issues of both guilt and penalty.” The
commentary to the Guideline lists all of the elements of an appropriate investigation.
54

In Re Marquez, 1 Cal. 4th 584 (1992); In Re Jackson, 3 Cal. 4th 578 (1992).

40

representation at the penalty phase constitutionally defective, because his
tactical decisions were not informed by an adequate investigation of
available mitigating evidence. The Court concluded:
Lead counsel’s failure to investigate petitioner’s early social history
was not consistent with established norms prevailing in California at
the time of trial, norms that directed counsel in death penalty cases to
conduct a reasonably thorough independent investigation of the
defendant’s social history – as agreed by respondent’s own expert and
as reflected in the American Bar Association standards relied upon by
the court in the Wiggins case. 55
The Wiggins and Lucas rulings clearly recognize the ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases
as establishing norms for competent representation in death penalty cases.
The Commission has learned that in a number of important instances, the
provisions for appointment of trial counsel in California death penalty cases
do not meet the standards of the ABA Guidelines:
1. The ABA Guidelines provide that flat fees, caps on compensation,
and lump-sum contracts are improper in death penalty cases.
Guideline 9.1 (B)(1). 56 In a number of California counties, flat fee

55

33 Cal. 4th at 725 (emphasis supplied).

56

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,
Guideline 9.1.B:
Counsel in death penalty cases should be fully compensated at a rate that is commensurate with the
provision of high quality legal representation and reflects the extraordinary responsibilities in death penalty
representation.
1.

Flat fees, caps on compensation, and lump-sum contracts are improper in death penalty cases.

41

contracts have become the prevailing method of appointment of
counsel in death cases.
2. The ABA Guidelines recommend that the selection of lawyers for
particular cases should be by a responsible agency that is
“independent of the judiciary.” Guideline 3.1 (B). 57 In many
California counties, appointments of trial counsel in death penalty
cases are made by the courts.
3. The ABA Guidelines recommend that the defense team consist of
“no fewer than two attorneys…, an investigator, and a mitigation
specialist.” Guideline 4.1 (A)(2). 58 In some California cases, a
single lawyer is appointed, or the appointment of a second lawyer
is delayed.
The Commission recommends that California counties provide adequate funding
for the appointment and performance of trial counsel in death penalty cases in full

2.
3.

Attorneys employed by defender organizations should be compensated according to a salary scale
that is commensurate with the salary scale of the prosecutor’s office in that jurisdiction.
Appointed counsel should be fully compensated for actual time and service performed at an hourly
rate commensurate with the prevailing rates for similar services performed by retained counsel in
the jurisdiction, with no distinction between rates for services performed in or out of court.
Periodic billing and payment should be available.

57

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,
Guideline 3.1 (B) provides:
The responsible agency should be independent of the judiciary and it, not the judiciary or elected officials,
should select lawyers for specific cases.
Under Guideline 3.1 (C), the Responsible Agency must be either a defender organization or an independent
authority run by defense attorneys with demonstrated knowledge and expertise in capital representation.
58

See fn. 36, supra.

42

compliance with ABA Guidelines 10.7 (A), 9.1(B)(1), 3.1(B), and 4.1(A)(2). Flat
fee contracts that do not separately reimburse investigative and litigation expenses
should not be permitted. Such contracts should not be utilized unless an hourly
alternative exists. In all cases, attorneys must be fully compensated at rates that
are commensurate with the provision of high quality legal representation and
reflect the extraordinary responsibilities in death penalty representation.
The cost of meeting the standards of the Guidelines is very difficult to
estimate, but it will be substantial. The Guidelines should be met in every
potential capital case from the outset. Thus, two qualified counsel as well as
an investigator and mitigation specialist should be appointed for as many as
200 cases each year, even though only 20 of them may end in a judgment of
death. The breadth of our death penalty law requires a much heavier
investment at the trial level than for the appeals or habeas proceedings, since
in nine out of ten cases, a case in which the investment has been made will
not result in a death judgment. Adequate representation by a full
complement of two attorneys, an investigator and a mitigation specialist at
the outset of the case may save money in the long run, however, if it results
in a decision by the prosecutor not to seek the death penalty.

43

6. Recommendations for the Direct Appeal of Death Penalty Cases.
The California Supreme Court has exclusive jurisdiction to consider
appeals from a judgment of death in California. Since 1935, appeal has been
automatic in all death cases. 59 After the filing of the trial record in the
California Supreme Court, 60 indigent death row inmates must await the
appointment of counsel to handle the appeal. Currently, a delay of three to
five years elapses before counsel is appointed. Once counsel is appointed,
he or she must read the record which averages in excess of 9,000 pages of
Reporter's and Clerk's transcripts, research the law, and then file an opening
brief with the Court. The average delay between appointment of counsel
and the filing of the opening brief is 2.74 years. The prosecution,
represented by the California Attorney General, then files a responsive brief,
ordinarily within six months. The defendant is then permitted to file a reply
brief, again ordinarily within six months. The case then awaits the
scheduling of an oral argument before the Supreme Court. Currently, the
Court has 80 fully-briefed death appeals awaiting oral argument. Since the

59

California Penal Code Section 1239. Section 1239 was enacted when a defendant was executed while his
appeal was still pending, due to confusion whether he had filed a notice of appeal. See Alarcon, Remedies
for California’s Death Row Deadlock, supra n.2 at 714-15 .
60

Delays in the certification of the record by the trial court have been substantially reduced by the 1996
enactment of California Penal Code Section 190.8 (d), which requires the trial court to certify the record for
completeness and for incorporation of all corrections no later than 90 days after imposition of a death
sentence, unless good cause is shown. Certification of the accuracy of the record, however, must await the
appointment of appellate counsel.

44

Court ordinarily hears only 20-25 of these cases per year, the wait for oral
argument will be 2-3 years. A decision is announced within 90 days after
the case is argued and submitted. Thus, the average delay between judgment
of death and final disposition of the automatic appeal is currently between
11.7 and 13.7 years. The duration of this delay has steadily increased. For
condemned prisoners convicted between 1978 and 1989, the average delay
was 6.6 years. For condemned prisoners convicted between 1990 and 1996,
the average delay was 10.7 years. The Supreme Court has issued only one
opinion disposing of an automatic appeal of a prisoner convicted after
1997.61
Delays in the appointment of counsel to handle direct appeals are
attributable to the small pool of qualified California lawyers willing to
accept such assignments. Many of the experienced appellate lawyers who
have handled California death cases are retiring or decline to take new cases
that will tie them up for ten or twelve years. The requisite qualifications for
appointment to handle death penalty appeals before the California Supreme
Court appear in Rule 8.605(d) of the California Rules of Court. A lawyer
must have four years of active practice of law, including service as counsel
of record in seven completed felony appeals, including at least one murder

61

Alarcon, supra n. 2 at 722-23.

45

case, or service as counsel of record in five completed felony appeals and as
supervised counsel in two death penalty appeals. Completion of training and
demonstrated proficiency in appellate skills is also required. The State
Public Defender can accept appointment, but must assign deputies who meet
these minimum qualifications.
The State Public Defender was created in 1976 to handle indigent
appellants in all criminal cases. In the early 1990’s, under a gubernatorial
directive, the office was asked to focus on capital cases only. In 1997, the
office was expanded to 128 funded positions, which somewhat alleviated the
backlog of 170 death row inmates then awaiting appointment of counsel to
handle their direct appeal. That backlog has now been reduced to 79
inmates. But by 2003, budget cuts reduced the staff of the State Public
Defender by 41 positions, more than half of which were attorneys. With an
annual budget of approximately $12 million, the office is currently handling
125 automatic appeals for death row inmates, and cannot accept additional
appointments. The office is facing another 10% cut in next year’s budget,
which will result in the loss of additional attorney positions.
There is no dearth of lawyers who want to make a career of death
penalty defense within the security of an agency setting. The Office of State
Public Defender has a pool of 150 applicants for attorney positions. These

46

positions provide excellent training for those who will fill the ranks of
appointed lawyers in the future. The most direct and efficient way to reduce
the backlog of death row inmates awaiting appointment of appellate counsel
would be to again expand the Office of the State Public Defender. Instead,
California is cutting its budget and reducing its staff.
Currently, private lawyers who accept an appointment to handle death
row appeals are compensated at a rate of $145 per allowable hour. 62 In
determining how many hours are allowable for a given task, the Court sets
benchmarks, which create presumptions of what will and what will not be
paid. Lawyers handing death penalty appeals in California complain that the
benchmarks are set too low, and the hassle of challenging them is demeaning
and time-consuming. The Commission learned that at least twenty of the
lawyers handling California death penalty appeals can no longer afford to
live in California, and are currently residing in other states. For the level of
experience required and the rigorous demand of death appeals, the low level
of income is certainly a significant factor in the decline of the pool of
attorneys available to handle death penalty appeals.
The payment of appointed lawyers to handle death penalty appeals in
California does not meet the standard established by the federal courts for

62

See http://www.courtinfo.ca.gov/courts/supreme/documents/SupremeCourtBrochure2008.pdf.

47

lawyers appointed to handle federal habeas corpus proceedings in death
cases. The Ninth Circuit rate varies from $135 to $170 per hour, depending
upon the level of experience. Judge Alarcon concludes:
The California legislature must provide sufficient funds to compensate
qualified lawyers who are willing to accept an appointment to
represent death row inmates in their automatic appeals. There is no
justification for the Legislature’s failure to address the longstanding
shortage of qualified counsel. Private practitioners who can bear the
financial sacrifice of accepting court-appointment at the present
hourly rates are scarce. 63
Chief Justice Ronald M. George expressed his full agreement with Judge
Alarcon’s call for more funding for counsel. 64 The California Supreme
Court has an annual budget of $15,406,000 to compensate and reimburse
expenses for appointed lawyers doing both direct appeals and habeas corpus
cases for death row inmates. $5.585 million of that is allocated to the
California Appellate Project (CAP), which maintains a full time staff of 40
(18 attorneys) in San Francisco to supervise and assist private lawyers who
accept appointments to handle death penalty appeals. Currently, 188 private
lawyers have contracted with the Court to handle direct appeals, and 141
have accepted appointment to provide representation in habeas corpus
proceedings. The Commission recommends that the remaining backlog of
cases awaiting appointment of counsel to handle direct appeals in death
63

Alarcon, supra n. 2 at 734.

64

Testimony of Chief Justice Ronald M. George, p. 7.

48

penalty cases be eliminated by expanding the Office of the State Public
Defender. This will require increasing the OSPD budget to $16 million per
year, a one-third increase over its current budget. The increase could be
phased in over a four year period.
The existing appointments of private lawyers should, of course, be
continued, and the budget of CAP should be maintained. With enhanced
staffing, OSPD would be able to take on 18-20 new appointments per year to
handle death penalty appeals. The current backlog of 79 unrepresented
death row inmates could be reduced to a one year wait if the number of new
death judgments does not begin to increase again. The Commission
recommends that, to the extent appointments of private counsel are utilized,
such appointments should comply with ABA Guideline 4.1(A)(2), 65 and
should be fully compensated at rates that are commensurate with the
provision of high quality legal representation and reflect the extraordinary
responsibilities in death penalty representation. Flat fee contracts should not
be utilized unless an hourly alternative is available, and any potential
conflicts of interest between the lawyer maximizing his or her return and
spending for necessary investigation, and expert assistance and other
expenses are eliminated.

65

See fn. 36, supra.

49

7. Recommendations for State Habeas Corpus Review of Death
Judgments.
In addition to the direct appeal, a defendant sentenced to death is also
permitted to file a petition for a writ of habeas corpus in the California
Supreme Court. A habeas corpus petition challenges the legality of a
prisoner’s confinement based upon factual issues that normally cannot be
determined by the appellate record, such as whether the defendant received
effective assistance of counsel, or the availability of new evidence of
innocence that was not available at trial. Frequently, a claim of ineffective
assistance of counsel requires a reinvestigation of the case, to demonstrate
that additional evidence was available that could have been presented to
mitigate the sentence, but was not due to the inadequacy of counsel’s pretrial
investigation. Representation of the prisoner in habeas corpus proceedings
includes the duty to review the trial records; conduct an investigation of
potential constitutional and statutory defects in the judgment of conviction
or death sentence; prepare and file a petition for a writ of habeas corpus;
represent the prisoner at the hearing to set an execution date pursuant to
Penal Code section 1227; and prepare a request for executive clemency from
the Governor of California.
Currently, 291 California death row inmates do not have habeas
counsel. The average wait to have habeas counsel appointed is eight to ten
50

years after the imposition of sentence. Attorneys representing death row
inmates in state habeas proceedings have three years from the date of their
appointment to file a state habeas petition. If counsel is appointed while the
direct appeal is still pending, the investigation can be concluded and the
petition filed shortly after the appeal is decided, if the death sentence is
affirmed. The average delay between the filing of a state petition for a writ
of habeas corpus and the filing of the California Supreme Court’s decision is
22 months. In the vast majority of cases, the California Supreme Court
decides the case on the basis of an informal response from the Attorney
General. Out of 689 state habeas corpus proceedings filed in the Supreme
Court since 1978, the Court has issued orders to show cause, requiring the
Attorney General to respond to the petition, in only 57 cases, and held
evidentiary hearings only 31 times. 66
Initially, the California Supreme Court attempted to consolidate its
consideration of the direct appeal and the habeas petition, appointing the
same lawyer to handle both. That proved impractical for a variety of
reasons. 67 California Government Code Section 68663 now provides for

66

Alarcon, supra n. 2, at p. 741.

67

Representing death row inmates on direct appeal and representing them on habeas corpus call for
different skill sets that are rarely found in the same lawyer. By experience, training and inclination,
appellate lawyers are rarely interested in assuming responsibility for habeas representation, and vice versa.

51

separate counsel to be appointed unless the prisoner and counsel request
representation by the same attorney in both aspects of the capital case.
While the Court now appoints separate lawyers to handle the direct
appeal and the habeas petition, the appointment of the habeas lawyer lags far
behind the appointment of the appellate lawyer, creating a variety of
problems. First, the factual investigation of habeas claims is delayed for
many years. Inevitably, records are lost, witnesses become unavailable, and
memories fade. Second, the one-year statute of limitations upon federal
habeas claims begins to run when the State direct appeal proceedings have
concluded. If a state habeas claim is not filed within that period, federal
habeas review may be unavailable. Speeding up the disposition of death
penalty appeals and addressing the delays in appointment of habeas counsel
go hand in hand, since inmates must have habeas counsel while the clock is
running on their federal habeas rights.
Those that have lawyers for their habeas proceedings are represented
by private attorneys who accept appointment from the California Supreme
Court, or lawyers employed by the California Habeas Corpus Resource
Center [HCRC]. Established in 1998, HCRC is authorized to employ up to
34 attorneys to handle death penalty habeas petitions in state and federal

52

court. With an annual budget of $14.9 million, 68 it has provided
representation that meets the ABA Guidelines for 70 clients in state habeas
corpus proceedings. A total of 141 habeas cases are now being handled by
private court appointed counsel.
Private lawyers appointed to handle habeas claims must meet
qualifications similar to those required for appointment to handle direct
appeals. 69 In addition, if an evidentiary hearing is ordered, the lawyer must
have trial experience, or engage an attorney who has such experience. 70
Like the attorneys handling appeals, appointed habeas counsel are paid $145
per hour. In addition, a recently increased maximum of $50,000 is available
to cover expenses. The expenses for a habeas investigation and the retaining
of necessary experts can easily exceed this maximum. Frequently, volunteer
counsel handling habeas proceedings pay out of pocket expenses far in
excess of available reimbursement, on a pro bono basis. 71 Currently, the
State Supreme Court allocates approximately half of its $15.4 million annual
68

The HCRC receives $13.9 million from the State’s General Fund, and is authorized to receive up to $1
million from the federal government in reimbursements for work done in federal court. Given the backlog
of death-row inmates needing appointment of state habeas corpus counsel, the HCRC has focused its
efforts on state appointments, and accepted only nine federal appointments.

69

Rule 8.605 (e), California Rules of Court.

70

Rule 8.605 (g), California Rules of Court.

71

For the successful habeas petition in In Re Lucas, 33 Cal.4th 682 (2004), the law firm of Cooley Godward
LLP provided 8,000 hours of pro bono attorney time, 7,000 hours of paralegal time, and litigation expenses
of $328,000. Testimony of Elisabeth Semel, February 28, 2008.

53

capital defense budget to habeas counsel. At this level of funding, there is
little prospect that appointed private lawyers can ever meet the needs of the
284 unrepresented death row inmates for habeas counsel. California
Appellate Defense Counsel, an organization of lawyers who accept
appointments in capital cases, recently surveyed its membership to identify
lawyers willing to accept habeas cases if expense reimbursement were
increased to the current $50,000 level. They received one positive
response. 72
Representation by appointed private lawyers does not currently meet
ABA Guidelines. Just as in the case of trial counsel, lump sum contracts are
sometimes utilized, payment is lower than federal rates, and two counsel are
not always appointed. Private lawyers are reluctant to accept appointments,
knowing the client would receive better representation from HCRC. As one
such lawyer told the Commission:
If you want private counsel to shoulder the burden, you have to fund
them at the level you would fund a public agency so that we have
investigators, paralegals, etc. so that when we file a petition, if you
don’t win in State Court, at least you don’t hurt the clients by filing a
petition that doesn’t have all the claims and facts that need to be in
that petition. 73

72

Testimony of Clay Seaman, February 28, 2008.

73

Testimony of Cliff Gardner, February 28, 2008.

54

The Commission recommends that the need for additional habeas
counsel be immediately met by expanding the California Habeas Corpus
Resource Center to an authorized strength of 150 lawyers, phased in over a
five year period. This will require a five-fold increase over the current $14.9
million annual budget of HCRC. The Commission also recommends that, to
the extent they are available for conflicts, such appointments include
qualified lawyers employed by the State Public Defender as well as private
lawyers. Such appointments should comply with ABA Guideline
4.1(A)(2),74 and should be fully compensated at rates that are commensurate
with the provision of high quality legal representation and reflect the
extraordinary responsibilities in death penalty representation. Flat fee
contracts should not be utilized unless an hourly alternative is available, and
any potential conflicts of interest between the lawyer maximizing his or her
return and spending for necessary investigation, and expert assistance and
other expenses are eliminated.

74

See fn. 36, supra

.

55

8. Recommendations for Federal Habeas Corpus Review of California
Death Judgments.
A state prisoner, including one under sentence of death, may file an
application for a writ of habeas corpus in federal court “on the ground that
he is in custody in violation of the Constitution or laws or treaties of the
United States.” 75 Federal courts can grant a request for the appointment of
counsel, who can be paid and reimbursed for expenses from federal funds. 76
A federal application for habeas corpus cannot be granted “unless it appears
that . . . the applicant has exhausted the remedies available in the courts of
the State.” 77 Thus, a federal application would be filed after the direct
appeal and habeas petition in state court have been denied or rejected. The
federal petition must be filed within one year of the conclusion of the state
direct appeal, but this period is stayed while a state habeas petition is
pending.
Access to federal habeas review is a crucial step for death row
inmates, especially in states with a high rate of death penalty affirmance. A
national study conducted by Columbia University researchers examined the
review of all death judgments from 1973-1995, and found that 59% were
75

28 U.S.C. Section 2254 (a).

76

18 U.S.C. Section 3599 (a)(2).

77

28 U.S.C. Section 2254 (b)(1)(A).

56

affirmed by state supreme courts. 78 A more recent study of fourteen death
penalty states from 1992 through 2002 reported an affirmance rate of 73.7%
in death appeals. 79 The California Supreme Court has affirmed death
judgments at a rate in excess of 90% since 1987, and denied state habeas
relief at an even higher rate. The Liebman study found that 40% of death
judgments reviewed on federal habeas corpus were set aside, and this
number increased where the state courts had a higher affirmance rate than
the national average. In California, 70% of habeas petitioners in death cases
have achieved relief in the federal courts, even though relief was denied
when the same claims were asserted in state courts. There may be a number
of explanations for this, including the availability of sufficient funds for
investigation of the defendant’s claims in federal court, the opportunity to
develop a more comprehensive record at a federal evidentiary hearing, and
the greater independence of federal judges with lifetime appointments.
The average delay from the filing of an application for federal habeas
relief in a California death case until the grant or denial of relief by a federal
district judge is 6.2 years. If the federal petition includes claims that have
not been exhausted in state court, the court can stay the proceedings while

78

Liebman et al., A Broken System: Error Rates in Capital Cases, 1973-1995 (June, 2000).

79

Latzer & Cauthen, Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study, p. 23
(2005).

57

the defendant returns to state court to exhaust the remedies available in the
state courts. 80 This increases the delay in disposing of the federal habeas
petition by two years. Because California does not provide adequate
resources to lawyers handling state habeas claims, 74% of federal habeas
applications filed by California death row inmates are stayed for the
exhaustion of state remedies. 81 Thus, the under-funding of state habeas
proceedings in California increases the burden on federal courts and delays
the administration of justice:
The failure of the California legislature to provide sufficient funding
to permit state habeas counsel to investigate each death row inmate’s
federal constitutional claims cannot be understated. It shifts to the
federal government the burden of providing sufficient funds to permit
federal habeas counsel to discover evidence to demonstrate additional
federal constitutional violations. 82
The grant or denial of habeas relief by the federal district court can then be
appealed to the U.S. Court of Appeals for the Ninth Circuit. The average
delay for appellate review, including a petition for en banc review and a
petition for certiorari to the U.S. Supreme Court is 4.2 years. 83
Continuity of representation by the same lawyer in both state and
federal habeas corpus proceedings helps to reduce many of the delays that
80

Rose v. Lundy, 455 U.S. 509 (1982).

81

Alarcon, supra n. 2, at p. 749.

82

Id. at p. 748.

83

Id. at p. 749.

58

now occur in state and federal habeas proceedings, especially where
exhaustion of claims in state court is a problem. With private appointed
lawyers, however, continuity cannot be assured. The appointment authority
of the California Supreme Court only extends to state habeas proceedings.
Representation by HCRC, on the other hand, assures continuity of
representation, since the agency is available to accept federal appointments
after the state proceedings are concluded, and seeks to investigate and
present all federal constitutional claims in state court before a federal
petition is filed. Thus, a return to state court for exhaustion of claims may
be obviated. Currently, only 7.3% of the habeas appointments of HCRC are
for purposes of exhaustion, while 23.7% of the habeas appointments of
private attorneys are for exhaustion purposes. The Commission
recommends that continuity of representation by the same attorney for state
and federal habeas claims be encouraged. The Commission’s
recommendation that the unmet need for habeas counsel be met by
expanding HCRC, rather than expanding the number of appointments of
private counsel, would address the need for continuity of counsel between
state and federal habeas proceedings.

59

PART B: AVAILABLE ALTERNATIVES.
In addition to the choices presented in Part A, to leave the present
broken system in place, or to provide the recommended resources to enable
California to achieve the national average in death penalty delays, the
Commission examined two other available alternatives: a significant
narrowing of special circumstances to reduce the number of death penalty
cases coming into the system, or replacing the death penalty with a
maximum sentence of lifetime incarceration. The Commission makes no
recommendation regarding these alternatives, but presents information
regarding them to assure a fully informed debate. An effort is made to
compare the costs for all four of these alternatives, but the figures presented
are only rough estimates, due to the unavailability of accurate data.

1. The Alternative of Narrowing the List of Special Circumstances.
Several of the witnesses who testified before the Commission suggest
the primary reason that the California Death Penalty Law is dysfunctional is
because it is too broad, and simply permits too many murder cases to be
prosecuted as death penalty cases. The expansion of the list of special
circumstances in the Briggs Initiative and in subsequent legislation, they
suggest, has opened the floodgates beyond the capacity of our judicial
system to absorb. As former Florida Supreme Court Chief Justice Gerald
60

Kogan told the Commission, having 21 special circumstances is
“unfathomable. The problem is the front-end of the system. There are too
many people eligible to receive the death penalty.” 84 A number of research
projects have concluded that the narrower the category of those eligible for
the death penalty, the less the risk of error, and the lower the rate of racial or
geographic variation. 85
An initiative of the Constitution Project, based in Washington, D.C.,
established a blue-ribbon bipartisan commission of judges, prosecutors,
defense lawyers, elected officials, FBI and police officials, professors and
civic and religious leaders to examine the administration of the death penalty
throughout the United States. The Constitution Project achieved broad
consensus on two key recommendations to reserve capital punishment for
the most aggravated offenses and most culpable offenders:

5. Death Penalty Eligibility Should Be Limited to Five Factors:
The murder of a peace officer killed in the performance of his or her
official duties when done to prevent or retaliate for that performance;
The murder of any person (including but not limited to inmates, staff,
and visitors) occurring at a correctional facility;
The murder of two or more persons regardless of whether the deaths
occurred as the result of the same act or of several related or unrelated
acts, as long as either (a) the deaths were the result of an intent to kill
more than one person, or (b) the defendant knew the act or acts would
84

Testimony of Gerald Kogan, at p. 30.

85

See Liebman & Marshall, Less Is Better: Justice Stevens and the Narrowed Death Penalty, 74 Fordham
L. Rev. 1607 (2006).

61

cause death or create a strong probability of death or great bodily
harm to the murdered individuals or others;
The intentional murder of a person involving the infliction of torture.
In this context, torture means the intentional and depraved infliction
of extreme physical pain for a prolonged period of time before the
victim’s death; and depraved means that the defendant relished the
infliction of extreme physical pain upon the victim, evidencing
debasement or perversion, or that the defendant evidenced a sense of
pleasure in the infliction of extreme physical pain;
The murder by a person who is under investigation for, or who has
been charged with or has been convicted of, a crime that would be a
felony, or the murder of anyone involved in the investigation,
prosecution, or defense of that crime, including, but not limited to,
witnesses, jurors, judges, prosecutors, and investigators.
6. Felony Murder Should Be Excluded as the Basis for Death
Penalty Eligibility.
The five eligibility factors in Recommendation 5, which are intended
to be an exhaustive list of the only factors that may render a murderer
eligible for capital punishment, do not include felony murder as a
basis for imposing the death penalty. To ensure that the death penalty
is reserved for the most culpable offenders and to make the imposition
of the death penalty more proportional, jurisdictions that nevertheless
choose to go beyond these five eligibility factors should still exclude
from death eligibility those cases in which eligibility is based solely
upon felony murder. Any jurisdiction that chooses to retain felony
murder as a death penalty eligibility criterion should not permit using
felony murder as an aggravating circumstance. (2005 Update). 86
Similarly, the Illinois Governor’s Commission on Capital Punishment,
a bipartisan group of seventeen current or former prosecutors, defense
lawyers, judges and civic leaders established to determine what reforms
would ensure that the Illinois capital punishment system is fair, just and
86

The Constitution Project, Mandatory Justice: The Death Penalty Revisited, p. xxiv-xxv (2001; 2005
Update).

62

accurate, unanimously concluded that the Illinois death penalty law be
narrowed to the functional equivalent of the Constitution Project
recommendation:
The Commission unanimously concluded that the current list of 20
factual circumstances under which a defendant is eligible for a death
sentence should be eliminated in favor of a simpler and narrower
group of eligibility criteria. A majority of the Commission agreed that
the death penalty should be applied only in cases where the defendant
has murdered two or more persons, or where the victim was either a
police officer or a firefighter; or an officer or inmate of a correctional
institution; or was murdered to obstruct the justice system; or was
tortured in the course of murder. 87
Hon. Alex Kozinski, now presiding judge of the U.S. Court of Appeals for
the Ninth Circuit, suggested thirteen years ago that narrowing of the death
penalty laws was the most appropriate way to address the “illusory” nature
of the death penalty. Noting the growing gap between the numbers of
people sentenced to death and the numbers we were actually willing to
execute, he suggested decreasing the number of crimes punishable by death
and the circumstances under which death may be imposed so that we only
sentence to death “the number of people we truly have the means and the
will to execute.” 88 The goal of narrowing, then, is to limit the numbers of

87

State of Illinois, Report of the Governor’s Commission on Capital Punishment (April 2002).

88

Hon. Alex Kozinski & Sean Gallager: Death: The Ultimate Run-on Sentence, 46 Case W. Res. L. Rev.
1,3 (1995).

63

death row inmates to those whom we truly have the means and the will to
execute.
Our Commission undertook a comprehensive review to determine
which special circumstances were found in all cases in which the death
penalty was imposed in California from 1978 through 2007. Despite the
difficulties in gathering data because of the lack of a systematic data
reporting requirement in California, the researchers, led by Professor Ellen
Kreitzberg of Santa Clara University School of Law, were able to locate 822
death penalty judgments, and identify the special circumstances utilized in
all but 26 of these cases. They concluded that since 1978, one of the five
special circumstances identified by the Constitution Project was found in
55% of California death cases, or a total of 451 of the cases examined. This
means that if the California death penalty law had limited itself to the “worst
of the worst” as identified by the Constitution Project and the Illinois
Commission, we would have approximately 368 on death row, rather than
670. The researchers also analyzed trends in the use of California’s special
circumstances over time. They found that there is a growing trend to narrow
the use of special circumstances to the five which were identified in the
Mandatory Justice report of the Constitution Project:
Our analysis of the special circumstances found by juries in California
death penalty cases shows a growing trend in the percentage of cases
64

where at least one Mandatory Justice factor is found. Compare 1980,
where only 37% of the cases that year had at least one Mandatory
Justice factor, with 2007, where 79% of the cases had at least one
factor. Since 1998, a Mandatory Justice factor has been found in at
least 59% of the cases each year – most years over 65% of the total
cases. However, there is significant disparity from county to county
with several counties falling far below the state average. California
needs to determine how to eliminate these geographic disparities in
the imposition of the death penalty. 89
Thus, a narrowing of the California special circumstances to the five factors
recommended by Mandatory Justice and the Illinois Commission could
largely eliminate the geographic variation in use of the death penalty which
the Commission notes below. 90 The following chart illustrates the
percentage of death penalty cases which included at least one Mandatory
Justice factor for 1978 through 2007 from each of the fourteen counties
which most frequently utilize the death penalty:

89

Kreitzberg, et al., A Review of Special Circumstances in California Death Penalty Cases, p. 8 (2008).

90

See Section C-2 of this Report, infra

.

65

PERCENTAGE OF CALIFORNIA DEATH CASES WITH AT LEAST
ONE MANDATORY JUSTICE FACTOR BY COUNTY 91
County

Total Death Sentences

Alameda
Contra Costa
Fresno
Kern
Los Angeles
Orange
Riverside
Sacramento
San Bernardino
San Diego
San Mateo
Santa Clara
Tulare
Ventura

55
20
18
29
247
60
65
43
46
43
18
30
17
17

Percentage With At
Least One Factor
51%
65%
50%
55%
64%
38%
48%
37%
52%
63%
78%
57%
41%
41%

The Kreitzberg study was also critical of the use of felony murder as a
special circumstance:
The use of felony murder as a special circumstance should be
reviewed. Over the years felony murder (robbery) was either the first
or second most frequently used special circumstance. While many
felony murders are among the most intentional and aggravated
killings, the felony murder circumstance fails to differentiate between
these aggravated murders and a minimally culpable defendant who
would still qualify under this factor. 92
Some of the gravest concerns about the fairness of the death penalty might
be alleviated or eliminated if its use were limited to the most aggravated
cases. The current list of 21 factual circumstances under which a defendant
91

Id. at pp. 45-46.

92

Id. at p. 8.

66

is eligible for a death sentence could be eliminated in favor of a simpler and
narrower group of eligibility criteria.
The use of the Mandatory Justice factors is not the only option
available to narrow the use of California’s death penalty. Other alternatives
could be considered as well. Commissioner Jon Streeter suggests adding to
the Mandatory Justice factors the further limitation that the crime in
question must be found to have “legally affected all citizens of the State of
California.” According to this approach, any killing of a peace officer, a
correctional officer, or a participant in the justice system would be presumed
to have the requisite “citizen impact,” since those crimes are, in effect,
attacks on the State itself and on the State's ability to mete out justice on
behalf of all of its citizens. For multiple murder and murder involving
torture, there would be no such presumption; it would take more than a
simple allegation of “murder of more than two persons” or “infliction of
torture” to justify a capital charge. In those cases, “citizen impact” would
have to be proved by the prosecution.93 Unquestionably, some case-by-case
line-drawing would be required, but the courts already do that kind of line-

93

By way of illustration, mass murderers (e.g. the Oklahoma City bomber, the September 11 assassins) and
serial murderers whose crimes are notorious for their depravity and the widespread fear they create (e.g. the
Zebra killings, the D.C. sniper killings) are examples of cases in which a state-wide “citizen impact” seems
readily apparent and readily provable.

67

drawing in interpreting and applying our current death penalty special
circumstances. As Commissioner Streeter puts it:
The overall idea behind this approach would be to impose a limitation
that distinguishes between purely local crimes (where the costs of
prosecution will be borne largely by county taxpayers) from crimes of
state-wide import (where the costs of prosecution will be borne
largely by all taxpayers of the state). Not only does this approach
directly address the issue of geographical disparity, but, by
introducing the principle that no crime may qualify for the death
penalty unless it is a matter of some state-wide consequence, it also
minimizes the need to draw potentially arbitrary distinctions between
different types of heinous crimes. Most importantly, because the
number of capital-eligible crimes would shrink dramatically – yet
leave open the option of using capital punishment in cases that are
often used as examples for why we should have the death penalty –
this approach accomplishes a substantial narrowing of deatheligibility, yet does so in a way that acknowledges and respects the
strongly-felt views of many citizens that the ultimate punishment is
appropriate in some cases. In effect, we would propose to 'right size'
the death penalty in the State so that the citizens end up with a
workable, yet fair, system that we can afford.
The Commission is not suggesting any particular formula or list to
narrow California’s death penalty law. This judgment is best left to the
legislative process. Other criteria, such as the murder of children, could be
included on the list. But the list must be carefully measured to actually
achieve the benefits of narrowing that have been identified. However the list
of special circumstances is narrowed, this narrowed list would only be
applied in death penalty cases. The current list of special circumstances

68

could still be utilized to impose sentences of life without possibility of
parole.
If California’s death penalty law were narrowed, it would be unwise
to proceed with the execution of defendants whose death judgment was not
based upon one of the identified special circumstances. With respect to the
thirteen executions conducted by California since 1978, ten of them would
have met the recommended special circumstance for multiple murders. Only
the executions of Thomas M. Thompson, Manuel Babbitt and Stephen
Wayne Anderson would not have resulted in a death sentence using the
Mandatory Justice factors. The death sentence of any death row inmate
whose conviction did not include a finding of one or more of the enumerated
special circumstances could be commuted to a sentence of life without
possibility of parole. Taking this step would actually have little impact for
the death row inmates involved. Most of them will never be executed, but
will die in prison. Changing their sentence to one of lifetime incarceration
would only change the location in which they will serve their sentence. But
just that change could save the State of California $27 million dollars each
year over the current cost of confining these prisoners on death row.
The additional cost of confining an inmate to death row, as compared
to the maximum security prisons where those sentenced to life without

69

possibility of parole ordinarily serve their sentences, is $90,000 per year per
inmate. 94 With California’s current death row population of 670, that
accounts for $63.3 million annually. Reducing the death row population to
those whose death judgment is based upon one or more of the five special
circumstances recommended by the Constitution Project would immediately
reduce the size of California’s death row to 368, who could be confined on
death row at an annual cost of $35 million. With respect to those no longer
subject to the death penalty, millions more would be saved by eliminating
the need to litigate their appeals and habeas petitions.
In terms of the future growth of California’s death row, the Kreitzberg
study suggests that for the past four years, 70% of the new death judgments
in California have included at least one of the recommended circumstances.
Thus, an average of 11 or 12 new death judgments could be anticipated, if
prosecutors seek the death penalty at the same rate. The numbers, both in
terms of backlog and new judgments, could be managed with substantially
less resources than we currently devote to our death penalty system. The
cost of implementing many of the reforms recommended by this
Commission to fix the current system would be reduced by 30 to 40%.

94

Tempest, Death Row Often Means a Long Life, Los Angeles Times, Mar. 6, 2005, quoting Corrections
Department Spokeswoman Margot Bloch.

70

A 45% reduction in the size of death row would also reduce the otherwise
necessary expansion of the State Public Defender, the Habeas Corpus
Resource Center, and the Court staffing needed.
2. The Alternative of Establishing the Maximum Penalty at Lifetime
Incarceration.
After a comprehensive review of the costs and benefits of the death
penalty, the New Jersey Death Penalty Commission reached the following
conclusions: 95
1. There is no compelling evidence that the death penalty rationally serves a
legitimate penological purpose;
2. The costs of the death penalty are greater than the costs of life in prison
without parole;
3. There is increasing evidence that the death penalty is inconsistent with
evolving standards of decency;
4. The penological interest in executing a small number of persons is not
sufficiently compelling to justify the risk of making an irreversible mistake;
5. The alternative of life imprisonment in a maximum security institution
without the possibility of parole would sufficiently ensure public safety and
address other legitimate social and penological interests, including the
interests of the families of murder victims;
95

Final Report, New Jersey Death Penalty Study Commission Report, p. 1 (January, 2007).

71

6. Abolition would make sufficient funds available to ensure adequate
services and advocacy for the families of murder victims.
These considerations led the State of New Jersey to abolish the death penalty
this year, in favor of the alternative of life imprisonment without parole.
(LWOP). We have the same alternative available in California.
California has had a sentence of life imprisonment without possibility
of parole available since 1978. According to the California Department of
Corrections, as of January 1, 2008, 3,622 defendants are serving LWOP
sentences, including some who were initially charged in death penalty cases.
Thus, throughout the past thirty years, we have increased our LWOP
population at an average rate of 120 defendants per year. It is appropriate to
label these as cases of lifetime incarceration. The term of imprisonment is
the defendant’s life. He is being sentenced to die in prison. Not only are
the costs of confinement significantly reduced, compared to the cost of
confinement on death row, many of the costs of trial and appellate review
for death cases are eliminated.
At the trial level, substantial savings would result from the elimination
of the necessity for death-qualified juries. Among the increased costs
necessitated by death penalty trials are the heavier burdens imposed upon
potential jurors than non-death cases. In Los Angeles County, 800 potential

72

jurors may be summoned for a death penalty case. California jury
commissioners rely solely upon voter registration and DMV lists to summon
jurors, although state law permits expansion of source lists. 96 Seventy-five
percent of potential jurors will be excused for financial hardship because of
the length of the trial. California courts pay jurors at a rate of $15 per day. 97
Many employers do not pay employees for jury service, and those who do
frequently limit the payment to no more than two weeks. The remaining
jurors must undergo individual questioning to determine whether they have
opinions about the death penalty that would preclude their serving in a death
case. This process of “death qualification” has resulted in larger numbers of
potential jurors being excused as public opinion against the death penalty
has grown.
While a jury is normally selected in one or two days in most felony
cases, the selection of a death-qualified jury normally takes 8-10 days of
court time. The use of limited source lists, the exclusion of a higher
proportion of potential jurors for economic hardship, together with the
exclusion of those who disapprove of the death penalty, results in juries that

96

California Code of Civil Procedure, Section 197(a). In contrast, New York uses five source lists,
including state income taxpayers, state unemployment, and welfare rolls. Testimony of Lois Heaney,
March 28, 2008.
97

At least 31 states and the Federal Courts pay jurors more than California. In Federal Courts, jurors
receive $50 per day. Testimony of Lois Heaney, March 28, 2008.

73

do not reflect a cross-section of the community to the extent that non-death
juries do.
Upon conviction of first-degree murder and a finding of at least
one special circumstance, the same jury is required to return for a second
trial, the penalty phase in which the jury decides between a sentence of death
or a sentence of life imprisonment without possibility of parole. This is a
full trial, with opening statements, presentation of evidence by both sides,
closing arguments and jury instructions. The jury is asked to weigh
aggravating and mitigating circumstances, and impose a sentence of death if
aggravating circumstances outweigh mitigating circumstances, or a sentence
of life imprisonment without possibility of parole if mitigating
circumstances outweigh aggravating circumstances. The jury must
unanimously agree as to the penalty; if they are unable to achieve unanimity,
another jury must be impaneled to decide the penalty. 98
The expenses for trial and appellate counsel would also be
substantially reduced if lifetime incarceration became the maximum penalty
in California. Only one defense lawyer would have to be appointed for the
trial. There would be no automatic appeal to the California Supreme Court,
so appeals would be handled much more expeditiously by the Courts of
98

California Penal Code Section 190.4 (b).

74

Appeal. Between June 2005 and June 2006 the California Courts of Appeal
decided 100 LWOP appeals after an average delay of 18.6 months. 99 While
habeas corpus petitions are available, there is no right to appointed counsel,
as there is for appeals and for habeas petitions in death cases. And since
there is no discretion in the exercise of the sentencing function, there is no
issue regarding the adequacy of investigation of mitigating evidence or the
effective assistance of counsel at a sentencing trial. Finally, although the
risks of wrongful convictions remain, there would be no wrongful
executions. New trials could be ordered if necessary, and the exonerated
would be released.
If the New Jersey approach were used in California, the death penalty
backlog would immediately disappear. The issues being litigated in direct
appeals and habeas petitions would no longer have to be decided by the
California Supreme Court. Penalty issues would not have to be decided at
all. The forty death penalty trials each year would simply be added to the
existing schedule of LWOP cases; instead of 120 LWOP cases per year, we
would have 160.

With a dysfunctional death penalty law, the reality is that

most California death sentences are actually sentences of lifetime
incarceration. The defendant will die in prison before he or she is ever

99

Alarcon, supra n. 2 at p. 731.

75

executed. The same result can be achieved at a savings of well over one
hundred million dollars by sentencing the defendant to lifetime incarceration
without possibility of parole.
A significant one-time savings is also available to California under
this option. According to the California State Auditor Report for 2006, the
current condemned-inmate facilities at San Quentin do not meet many of the
Department of Corrections standards for maximum security facilities. The
Department received spending authority of $220 million to build a new
condemned-inmate complex, but the audit found the analysis of alternative
locations and costs was incomplete. 100 Governor Schwarzenegger has set
aside $136 million to proceed with construction of a new death row at San
Quentin. The Department of Corrections estimate for completion of the
project is $356 million, up $19 million from the year before. 101 The
California State Auditor reported in June, 2008 that this estimate is too low:
Analyses by our consultant suggest that the cost to construct the CIC
will exceed Corrections’ recent estimate. Although Corrections
reasonably estimated construction costs, it was precluded from
applying realistic escalation rates, and delays from the anticipated
100

California State Auditor Report 2006-406, p.281.

101

Halstead, $136 Million Requested for New Death Row at San Quentin, Marin Independent Journal, April
30, 2008.

76

start date will add to project costs. Additionally, Corrections did not
include the costs to activate and operate the CIC in its estimated costs.
Our consultant estimates the cost to construct the CIC will exceed
Corrections’ estimate of $356 million by $39.3 million and that the
cost to activate the new CIC will reach $7.3 million. Furthermore, our
consultant estimates that the average new staffing costs to operate the
new CIC will average $58.8 million per year, for a total of
approximately $1.2 billion over the next 20 years. 102
3. Estimating and Comparing the Annual Costs of Available
Alternatives.
As we have previously noted, it is impossible to ascertain the precise
costs of the administration of California’s death penalty law at this time.
But the choices that California faces require some comparison of projected
costs; for this purpose, rough estimates will have to do.
In recent years, a number of states have attempted to compare the
costs imposed by a death penalty trial to a murder trial where the death
penalty is not sought, with quite consistent results. A performance audit
report prepared for the State of Kansas in 2003 compared the average cost of
cases in which a death sentence was imposed ($1.2 million) with the average
102

California State Auditor, California Department of Corrections and Rehabilitation: Building a
Condemned Inmate Complex at San Quentin May Cost More Than Expected, June 2008 Letter Report
2007-120.1.

77

cost of murder cases in which the death penalty was not sought ($.7 million)
and concluded that seeking the death penalty adds 70% to the cost of a
murder case. 103 A report by the Comptroller of the Treasury for the State of
Tennessee concluded that seeking the death penalty in murder trials adds an
average of 48% to the cost of the trial. 104 A study of Indiana death penalty
trials concluded that the cost of a death penalty trial and direct appeal alone
is more than five times the cost of a life without parole trial and direct
appeal. Including the relative costs of incarceration, the study concluded that
obtaining the death penalty increases the cost by 38%. 105 Michael Ebert of
the George Mason University School of Public Policy evaluated these
studies, and concluded that “the Indiana analysis may well be the new ‘gold
standard’ in this unique area of capital vs. non-capital cost assessments. The
American Bar Association (ABA) examined the Indiana study and has
commented very favorably on its techniques.” 106

103

Performance Audit Report: Costs Incurred for Death Penalty Cases, A Report to the Legislative Post
Audit Committee, State of Kansas, December 2003.

104

Wilson, Doss & Phillips, Tennessee’s Death Penalty: Costs and Consequences, State of Tennessee, July
2004.
105

Janeway, The Application of Indiana’s Capital Sentencing Law: Findings of the Indiana Criminal Law
Study Commission (2002).

106

Ebert, Weighing the Costs of Capital Punishment v. Life in Prison Without Parole: An Evaluation of
Three States’ Studies and Methodologies, Volume I, New Voices in Public Policy (Spring 2007).

78

A recent report for the Washington State Bar Association elicited
estimates from prosecutors and public defenders of the costs added to trials
when the death penalty was sought. The report concluded “that the
prosecutor’s average estimate of $217,000 and the public defenders average
estimate of $246,000 were realistic estimates of the cost difference for death
penalty cases at the trial level.” 107
Not surprisingly, California estimates for trial costs have been
somewhat higher. A U.C. Berkeley School of Public Policy researcher in
1993 reported that a capital murder trial cost $1.9 million, compared to
$630,000 for a non-capital murder case, a difference of $1.27 million. 108
The ACLU comparison of death penalty cases and non-death penalty cases
in which counties were reimbursed by the state found the difference between
the least expensive death penalty trial with the most expensive non-death
penalty trial was $1.1 million. 109
For comparative purposes, the Commission adopted a very
conservative estimate that seeking the death penalty adds $500,000 to the

107

Washington State Bar Association, Final Report of the Death Penalty Subcommittee on the Committee
on Public Defense, December 2006, at p. 18.

108

Tempest, Death Row Often Means a Long Life, Los Angeles Times, March 6, 2005 at p. B1. Based on
Erickson, Capital Punishment at What Price?, available at
http://death.live.radicaldesigns.org//downloads/Erickson1993COSTSTUDY.pdf

109

Minsker, The Hidden Death Tax: The Secret Costs of Seeking Execution in California, March 2008, at
p. 32.

79

cost of a murder trial in California. The costs of a second defense lawyer,
the background investigation for the penalty phase, and the added duration
and expense of the trial for jury selection and penalty trial alone would
easily add up to $500,000 in most cases. The current rate of 20 death
sentences per year would require 40 death penalty trials per year, for a total
added cost of $20 million. The Commission’s recommendations for
adequate funding of defense costs for death penalty trials, especially the
necessary investigation of mitigation, will easily increase this cost
differential by 50%. If the same pace of 40 death penalty trials were
maintained, the needed reforms would then require an annual expenditure of
$30 million, rather than $20 million. This expenditure would be at the
county level, but $13.5 million of it would be reimbursed by the State
pursuant to Penal Code Section 987.9.
If California’s death penalty law were narrowed to a more selective
list of special circumstances, the number of death penalty trials would be
reduced to 24, requiring the expenditure of $18 million including the
recommended reforms. If California opted in favor of terminal confinement
[LWOP] as the maximum penalty, there would no longer be the enhanced
costs of death penalty trials, but the number of LWOP trials would probably
increase. In some cases, the risk of facing the death penalty provides an

80

incentive to plead guilty and accept an LWOP sentence. If the incentive is
removed, more LWOP cases may have to be tried. And if more LWOP cases
are tried, more will be appealed. California currently processes
approximately 120 LWOP cases each year, but fewer than 5% of them are
disposed of by a plea of guilty. 110 Even if all cases formerly charged as
death cases become LWOP cases and all of those cases go to trial, that
would add approximately $5 million to the cost of LWOP trials and $3
million to the cost of LWOP appeals. Both the trials and appeals would be
considerably less expensive than death cases, because there would be no
penalty phase, and no right to counsel for a habeas petition.
The costs of appellate and habeas corpus review for death cases can
be estimated with somewhat more precision. The current budgets of the
California Supreme Court for the appointment of private lawyers ($15.4
million), of the State Public Defender for death penalty appeals ($12.1
million) and the California Habeas Corpus Resource Center for habeas
representation ($14.9 million) total $42.4 million. Former Attorney General
Bill Lockyer estimated that 15% of his criminal division budget is devoted
to capital cases. That currently amounts to $12 million per year. Thus, at
least $54.4 million is currently devoted to post-trial review of death cases in

110

This estimate is based upon a 2008 survey of the California Appellate Projects.

81

California. The recommended budget increases proposed by the
Commission in Part A would increase this figure by $85 million. The added
charges to the State general fund would include $6 million for the State
Public Defender, $70 million for the California Habeas Corpus Resource
Center, $6 million to the Attorney General, and $3 million to the State
Supreme Court for appointed counsel. The reduction of the backlog by
adopting the narrowing proposal would reduce these enhanced budgets by
45%, to a total of $68 million.
The costs of confinement can also be estimated with some precision,
based upon the Department of Corrections estimate that confinement on
death row adds $90,000 per year to the cost of confinement beyond the
normal cost of $34,150. Thus, just the enhanced confinement costs for the
670 currently on California’s death row totals $63.3 million. This figure
increases each year as the population of California’s death row grows.
The needed reforms recommended by the Commission would reduce the
delays and eventually lead to reductions in the death row population. The
alternative of narrowing the death penalty law could result in a 45%
reduction in the size of death row, and a corresponding 45% reduction in the
costs of confinement to $35 million per year. This number would also
decline as the backlog was reduced. The alternative of terminal confinement

82

would not reduce confinement costs to zero, since current death row inmates
who might have been executed will be confined for their full life expectancy,
although at the lower confinement rate of $34,150 per year. Assuming 100
inmates might otherwise have been executed, the cost of their continued
confinement would amount to $3.5 million per year.
Thus, using conservative, rough estimates, the total cost of the
available alternatives would be (1) to continue spending at least $137.7
million per year to maintain our dysfunctional system; (2) to spend $216.8
million to reduce delays in resolving cases from 20-25 years down to the
national average of 12 years; (3) to spend $121 million per year for a
narrowed death penalty producing 10-12 new death sentences per year; (4)
or to adopt a policy of terminal confinement at an annual cost of $11.5
million.
These estimates make no effort to measure opportunity costs or
savings. For example, the California Supreme Court currently devotes 2025% of its time and resources to processing death penalty appeals and
habeas petitions. If California’s death penalty law were significantly
narrowed, the Supreme Court caseload would be correspondingly lighter.
The reduction would be even more dramatic with the alternative of lifetime
incarceration as the maximum penalty.

83

The following chart summarizes the additional annual charges to the
California state budget which each of four alternatives would impose: the
present system, the present system with the reforms recommended in Part A
of this Report, a significantly narrowed death penalty law, and a maximum
punishment of lifetime incarceration without possibility of parole.
ESTIMATING THE ANNUAL COSTS OF FOUR ALTERNATIVES
CURRENT
SYSTEM

CURRENT
SYSTEM WITH
PART A
ADDITIONS

NARROWED
DEATH
PENALTY LAW
WITH PART A
ADDITIONS

MAXIMUM OF
LIFETIME
INCARCERATION
[LWOP]

ADDITIONAL
$20 Million
COST OF TRIALS

$30 Million

$18 Million

$5 Million

ADDITIONAL
COST OF APPEAL
$54.4 Million
AND HABEAS
PROCEEDINGS

$139.4 Million $77 Million

$3 Million

ADDITIONAL
COST OF
CONFINEMENT

$63.3 Million
[Increasing]

$63.3 Million
[Declining]

$3.5 Million

TOTAL

$137.7 Million $232.7 Million $130 Million
[Increasing]
[Declining]
[Declining]

84

$35 Million
[Declining]

$11.5 Million

PART C: ADMINISTRATIVE REFORMS.
1. Reducing the California Supreme Court Backlog.
Despite extraordinary efforts and the investment of substantial
resources, the California Supreme Court has been unable to stay abreast of
the rising tide of death cases arriving at its door. As already noted, the
delays in appointment of counsel for both direct appeals and state habeas
proceedings are attributable to lack of adequate funding rather than any
failure on the part of the Court. The Court has no control over the number of
death verdicts returned each year, and the numbers have far surpassed the
capacity of the court to promptly process and decide the cases. The Court
has added attorneys to the staff of each Justice’s chambers, and created a
central staff of ten attorneys dedicated to death penalty motions, appeals and
habeas proceedings. These cases arrive with lengthy records, and the
opinions issued by the Court addressing the issues raised on appeal are
lengthy and complex. Ordinarily, the Court will issue published opinions
deciding 20 to 25 death appeals each year, and an additional 30
memorandum opinions deciding habeas petitions. There is now a delay of as
much as two or three years from the time a death case is fully briefed until it
is set for oral argument. The Court has 80 direct appeals fully briefed and

85

awaiting oral argument. Another 100 fully briefed habeas petitions are
before the Court.
According to Chief Justice Ronald M. George, the Court now faces a
crisis, in which the death penalty backlog is threatening the Court’s ability to
resolve other statewide issues of law and settle conflicts at the appellate
level, which is its primary duty and responsibility. The California Supreme
Court has formulated a proposal to address the delay in deciding fully
briefed death penalty appeals by amending the California constitution to
give the Supreme Court discretion to transfer fully briefed cases to the
intermediate Courts of Appeal for decision. 111 The Supreme Court would
review the Court of Appeals judgment and could summarily affirm it, or
hold oral argument and issue its own decision with reasons stated,
addressing all or part of the Court of Appeal’s decision. 112 On March 25,
2008, the Chief Justice announced that in view of the budget situation, the
Court is not asking that the proposal be advanced at this time. The
Commission recommends that this proposal be advanced only in conjunction
with implementation of recommendations it is presenting in this report to

111

A constitutional amendment would be required because the California constitution gives the Supreme
Court exclusive jurisdiction over appeals involving judgments of death. Cal. Const., art. VI, Section 12.

112

News Release, Supreme Court Proposes Amendments to Constitution in Death Penalty Appeals, Nov.
19, 2007.

86

adequately fund the appointment of both appellate and habeas counsel in
death cases, and the provision of adequate staffing for the Courts of Appeal.
Witnesses before the Commission have addressed a number of other
concerns regarding the implementation of this proposal. Concern has been
expressed that transferring as many as thirty death appeals each year to the
nineteen different divisions and districts of the Court of Appeal will result in
inconsistent rulings, especially in resolving issues such as harmless error.
The lack of formal proportionality review in California, coupled with the
patterns of geographic disparity, give added weight to concerns regarding
the consistency of death penalty review.
The assurance of the Supreme Court that Court of Appeal rulings
would be carefully scrutinized should be accepted. An annual evaluation of
the effects of this proposal could be assured by the implementation of the
Commission’s recommendation to establish a California Death Penalty
Review Panel (infra, pp. 102-103). The Commission majority recommends
adoption of the proposed constitutional amendment if the recommendations
contained in Part A of this Report are implemented.
While the California Supreme Court is also considering proposals to
address the backlog of state habeas cases, Senior Judge Arthur Alarcon of
the U.S. Court of Appeals for the Ninth Circuit has suggested that California

87

law be changed to permit original habeas petitions in death cases to be filed
in the Superior Courts, with right of appeal to the Courts of Appeal and
discretionary review by the Supreme Court. 113 He suggests:
The potential for reducing the delay of finally adjudicating a sentence
of death by having the original habeas corpus petition filed in the
superior court is tremendous. There are 1499 superior court judges in
California. An average of thirty-eight state habeas corpus petitions in
death penalty cases are filed each year in the California Supreme
Court. Spreading these state habeas corpus petitions among the trial
courts would dramatically reduce the Supreme Court’s caseload while
having a minimal impact on the superior courts. Trial court judges are
uniquely qualified to hear original habeas corpus claims because they
are already familiar with the evidence presented at trial. And in order
to facilitate appellate review, the superior court judge hearing the
petition should be required to issue a written order explaining the
reasons for granting or denying habeas corpus relief. 114
The Alarcon proposal may not require amendment of the California
constitution. The Supreme Court, the Courts of Appeal and Superior Courts
share original jurisdiction over habeas corpus proceedings.115 The reason
habeas cases are filed directly in the Supreme Court is because only the
Supreme Court is authorized to pay counsel. The California Supreme Court
has adopted a policy which declares:
Absent prior authorization by this court, this court will not
compensate counsel for the filing of any other motion, petition or
pleading in any other California or federal court or court of another
113

Alarcon, supra n. 2, at 743-49.

114

Id. at p. 743.

115

Cal. Const., art. VI, Section 10.

88

state. Counsel who seek compensation for representation in another
court should secure appointment by, and compensation from, that
court. 116
Adoption of the Alarcon proposal could also expedite the consideration of a
subsequent habeas corpus petition in federal court. Under the existing
system, federal courts do not have the benefit, in most cases, of a prior
evidentiary hearing or a written order from the Supreme Court explaining
the reasons for its decision. After the California Supreme Court rejected
requests from the judges of the Ninth Circuit Court of Appeals that the Court
spell out its reasons for denying petitions for habeas corpus, due to lack of
time and resources, Senator Dianne Feinstein wrote to Governor Arnold
Schwarzenegger requesting assistance in addressing this problem. She
concluded that “[t]he absence of a thorough explanation of the [California
Supreme] Court’s reasons for its habeas corpus decisions often requires
federal courts to essentially start each federal habeas death penalty appeal
from scratch, wasting enormous time and resources.” 117
The Commission majority recommends that changes to California
statutes, rules and policies be seriously considered to encourage more
hearings and formal findings in considering state habeas corpus petitions in

116

Supreme Court Policies Arising From Judgments of Death, at Policy 3, 2-1 (1989).

117

Alarcon, supra n. 2, at 742-43.

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death penalty cases. The California Supreme Court’s summary denial of
habeas petitions without evidentiary hearings and without any explanation of
the reasons 118 does not save time, since it adds to the delay in resolution of
the inevitable subsequent federal habeas corpus claim. Simply adopting the
Alarcon proposal to shift the initial consideration of habeas petitions to the
Superior Courts, however, would only add to the delays if the Superior
Courts summarily deny the petitions at the same rate, competency standards
for the appointment of counsel are not ensured, or additional resources are
not provided for full development of the facts necessary to resolve claims for
relief. Among the statutory changes to be considered should be a
reexamination of the standards for requiring the Attorney General to file a
return, and the standards for requiring an evidentiary hearing. Written
findings should also be required.
2. Explaining Racial and Geographic Disparities.
The decision to pursue the death penalty for a death eligible defendant is the
responsibility of the elected District Attorney in each California county.
Although there is no current data to show what proportion of California
homicides are charged as first degree murder and/or death penalty cases,

118

The California Supreme Court issues an order to show cause requiring the Attorney General to respond
in only 8% of death penalty habeas corpus petitions, and orders an evidentiary hearing before a referee in
only 4.5% of the cases.

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there has been research focused upon the cases that actually result in a
sentence of death. Professors Glen Pierce and Michael Radelet examined
the racial, ethnic and geographical variation in the imposition of the death
penalty based on an analysis of homicides that occurred in California
between January 1, 1990 and December 31, 1999.119 They found that for the
33,914 homicides occurring in California during this period, 302 defendants
were sentenced to death. The statewide ratio for this ten-year period was .89
death sentences for every 100 homicide victims. The authors then examined
variations in this ratio based upon the race of the victim and the geographical
location of the homicide. They found the ratio varied substantially among
California counties. Excluding counties in which fewer than five death
sentences were imposed, 120 death sentencing ratios varied from .58 for each
100 homicides to rates nearly ten times higher.
These ratios do not take into consideration variations in arrest rates
across counties. Larger urban counties may have higher proportions of
stranger-to-stranger homicides, which often remain unsolved and produce
correspondingly lower arrest rates. Pierce and Radelet adjusted for variance
119

Pierce & Radelet, The Impact of Legally Inappropriate Factors on Death Sentencing for California
Homicides, 1990-1999, 46 Santa Clara L. Rev. 1 (2005).

120

In almost half the counties, 28 of the 58, no death sentences were imposed during the 1990’s, although
1,160 homicides took place in these counties. The current District Attorney for San Francisco, Kamala
Harris, and her predecessor, Terrence Hallinan, pledged never to seek the death penalty. Since 1979, only
two defendants have been sentenced to death for murders in San Francisco. Id. at 26, n.128.

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in arrest rates by counting homicides in which an offender was identified
(ordinarily by making an arrest), and then comparing the death sentencing
rate to the urban character of the county as measured by population density,
and the proportion of the county’s population that were non-Hispanic whites.
This comparison strongly suggested that those counties with the highest
death sentencing rates tend to have the highest proportion of non-Hispanic
whites in their population, and the lowest population density. The more
white and more sparsely populated the county, the higher the death
sentencing rate.
Pierce and Radelet also subjected their data to logistic regression
analysis to ascertain whether the race and ethnicity of homicide victims is
associated with imposition of the death penalty in California. Overall,
controlling for all other predictor variables, they found all those who kill
African Americans, regardless of the ethnicity or race of the perpetrator, are
59.3% less likely to be sentenced to death than those who kill non-Hispanic
whites. This disparity increases to 67% when comparing the death
sentencing rates of those who kill whites with those who kill Hispanics,
again without regard to the ethnicity or race of the perpetrator.
It should be clearly understood that this data does not establish that
prosecutorial discretion is affected by race and class bias, unconscious or

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otherwise. There are many other plausible explanations for the consistent
patterns based on race of victim that appear in every death penalty state.
Similar patterns have been found in other states in recent studies, including
Florida, Illinois, Nebraska, Arizona, Maryland, North Carolina and
Pennsylvania, as well as in studies of death sentencing in federal cases. 121
More detailed analysis of more data is necessary to identify the reasons for
patterns of disparity based upon the race of the victims. 122
Professors Pierce and Radelet noted broad concerns about data quality
and availability in California:
Such issues raise crucial questions about the interest, and, more
fundamentally, the ability of the State to monitor its death sentencing
process. A comprehensive and effective monitoring program needs to
track all homicide cases from arrest through appeal. To accurately
assess the full range of factors that may or may not affect criminal
justice decisions, all links and actors in the decision-making process
must be monitored. This necessitates collecting information from the
very start of the process, including information on the character of
police investigations and prosecutorial charging decisions. 123

121

Pierce and Radelet, supra n. 119, at 38-39.

.
122

Analysis of racial data should include all cases in which the death penalty was sought and those in
which it was rejected as well as those in which it was imposed. Data from San Mateo County illustrates the
difficulty of drawing any conclusions from a simple comparison of the race of the defendant and the race of
the victim in cases where the death penalty was imposed. Since 1983, 26 capital cases were tried to penalty
phase to a jury. 13 of the defendants were white, and 13 were persons of color. There were a total of 42
victims: 27 were white and 15 were persons of color. Death verdicts were returned in 14 of the cases, 8
against white defendants, and 6 against defendants of color. In those 14 cases, there were 27 victims, 16
white and 11 persons of color. In the twelve cases where the jury rejected a death verdict, 5 defendants
were white and 7 were persons of color. There were 15 victims in those 12 cases: 11 were white, and 4
were persons of color.

123

Supra, n. 119 at p. 37.

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The systematic collection and monitoring of more comprehensive data
about how homicide cases are selected for prosecution as death cases could
yield valuable insights into the impact of the race of the victim. This data
should be regularly collected and analyzed.
Prosecutors suggest that geographical variation in utilizing the death
penalty is not a problem, because locally elected District Attorneys are
responding to the demands of the electorate which they represent. The
California Supreme Court has consistently rejected claims that the discretion
conferred on the district attorney of each county to seek the death penalty
results in a county-by-county disparity in capital prosecutions, causing
arbitrariness forbidden by the federal Constitution. 124 Others suggest that
since the death penalty is administered in the name of the State, there should
be a uniform statewide standard applied to determine if the death penalty
should be employed. 125 A local decision to seek the death penalty may
impose tremendous costs that will be borne by the State as a whole,
including the costs of subsequent appeal and habeas proceedings and the
costs of confinement on death row.

124

See, e.g., People v. Ayala, 23 Cal.4th 225 (2000); People v. Holt, 15 Cal.4th 629, 702 (1997); People v
Ochoa, 19 Cal.4th 353, 479 (1998).
125

See, e.g., the suggestion of Commissioner Jon Streeter, pp. 67-68 supra.

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Many states address the problem of geographical variation by
imposing a requirement of comparative proportionality in death sentences.
The United States Supreme Court has ruled that the Eighth Amendment of
the U.S. Constitution does not require comparative proportionality review in
death penalty cases, concluding that disparities in death sentences cannot be
labeled as cruel and unusual punishment. The Court also held that death
penalty statutes without proportionality review do not violate the Fourteenth
Amendment’s guarantee of equal protection. Indeed, these rulings came in a
case challenging California’s death penalty statute for failing to provide
proportionality review. 126 Nevertheless, the majority of states which provide
for the death penalty do require comparative proportionality review to
achieve a consistent statewide standard. 127 Gerald Kogan, former Chief
Justice of the Florida Supreme Court, told the Commission that Florida has
one of the highest rates of state Supreme Court reversal of death penalties in
the nation, because of its employment of proportionality review. 128
The Commission majority has concluded that geographical and
racial variation should be subjected to further study and analysis in

126

Pulley v. Harris, 465 U.S. 37 (1984).

127

Kaufman-Osborn, Capital Punishment, Proportionality Review, and Claims of Fairness (With Lessons
From Washington State), 79 Wash. L. Rev. 775, 790-92 (2004) (21 of the 39 states with death penalty laws
impose a requirement of comparative proportionality review).

128

Testimony of Hon. Gerald Kogan, p. 34.

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California. Evidence of disparities in the administration of the death penalty
undermines public confidence in our criminal justice system generally.
California is the most diverse state in the country. It is our duty to ensure
that every aspect of the criminal justice system is administered fairly and
evenly, and that all residents of the state are accorded equal treatment under
the law. This is especially true when the state chooses to take a life in the
name of the people. The Commissioners are unwilling to recommend a
requirement of comparative proportionality or approval of local death
penalty decisions by a statewide body, however, without additional data and
research.
3. Comprehensive Data Collection and Monitoring.
The Commission made a concerted effort to identify the process by
which decisions are made by California District Attorneys to proceed with a
homicide prosecution as a death penalty case. After completing preliminary
research, Professors Harry Caldwell, Carol Chase and Chris Chambers of
Pepperdine University School of Law prepared a survey form which was
sent to the District Attorneys in each of California’s 58 counties. The survey
sought information concerning the process by which each office determines
whether to file a homicide as a capital case, as well as information designed
to reveal whether certain types of special circumstances are more likely than

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others to be filed as capital cases, and whether certain characteristics of
defendants, victims, or the crimes alleged were more likely to result in a
capital charge. Despite extensive follow-up contacts, twenty counties never
responded to the survey, and another fourteen responded by declining to
participate in the survey. The non-cooperating counties included five of the
top ten death-sentencing counties in California.129
With respect to the counties that completed the survey, most indicated
that a panel or committee of prosecutors was utilized to make a
recommendation to the District Attorney whether the death penalty should
be sought. Very few counties indicated they had written policies or
guidelines, and only one was willing to provide a copy of their written
policy. The responding offices differed as to their use of information from
the defense in making their decisions. In most counties, the decision is not
made until the information is filed, after the preliminary hearing.
The survey did not yield enough statistical information to draw any
conclusions with regard to the decision-making process. The Pepperdine
researchers concluded:
Of all the decisions that a government can make, the decision to seek
to end the life of another human being must be the most important and
129

The non-cooperating counties included Riverside, Orange, Alameda, San Diego and Kern. The top ten
death-sentencing counties in California, measured by the number of inmates on death row in January, 2004,
were: 1. Los Angeles (194), 2. Riverside (54), 3. Orange (49), 4. Alameda (43), 5. Sacramento (34); 6. San
Bernardino (34); 7. San Diego (32), 8. Santa Clara (27), 9. Kern (23), 10. San Mateo (16).

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sobering. These decisions should be made only after careful
consideration of specified factors after a clearly defined process
designed to ensure fairness and to avoid arbitrary results. As the
ultimate decision for each county rests with an elected official, the
District Attorney, one would hope that the District Attorney would
value transparency in his/her decision-making process, both to insure
that these important decisions are being made as evenhandedly as
possible and to give the electorate the opportunity to voice its
approval or disapproval of the process by which the District Attorney
makes those decisions. Unfortunately, our experience has revealed a
wariness about disclosing information about the death penalty
decision-making process on the part of many district attorneys offices.
While some offices – including the office of the most populous county
(Los Angeles), have been very forthcoming – a record of 15 relatively
complete responses out of 58 counties 130 paints a distressing picture of
the willingness of those who tinker with the machinery of the death
penalty to expose their decision-making process to the electorate. 131
Regrettably, a similar experience of wariness was reported by the Rand
Corporation, which was retained by the Commission to determine the
feasibility of a major study of the administration and the administrative costs
of the death penalty in California:
At the outset of our conversations with representatives of participating
agencies, the relevance of the underlying political dynamic became
undeniably apparent. Namely, that many (if not most) of the
participants in the death penalty process have strongly held views
about the death penalty, and that those views have implications for our
ability to gather the necessary data for the proposed study. The
representatives on the defense side with whom we spoke tended to see
it as their responsibility to prevent or delay the application of capital
punishment. Therefore, not surprisingly, they appear to fall largely
130

In addition to Los Angeles County, relatively complete responses were received from Butte, Calaveras,
Imperial, Inyo, Kings, Lake, Mendocino, Nevada, San Bernardino, San Mateo, Santa Clara, Shasta,
Tehama and Tuolumne Counties.

131

Caldwell, Chase & Goodman, Death Penalty Survey Report, p. 7 (Nov. 7, 2007).

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within the group of those opposed to the use of the death penalty.
And the representatives on the prosecution side, especially at the local
level, showed an interest in maintaining all possible sentencing
options for any given crime, which allows for the widest discretion in
determining how to handle their cases, as well as providing leverage
for plea-bargaining. Thus, the two groups of key stakeholders not
only play adversarial roles in individual cases, but they also largely
disagree when it comes to the death penalty.
It is perhaps not surprising then, that many of the stakeholders
in the current death penalty process are wary of the kind of
independent study we have proposed, for fear that it could end up
swaying opinion in a direction contrary to their own convictions. This
wariness was expressed to us directly by some, as well as indirectly
(e.g., difficulties we encountered getting connected in a timely fashion
to the right people). In our experience, such ambivalence about a
study can make data collection extremely difficult – if not effectively
impossible. 132
Providing the public with reliable information about how the death penalty is
being administered in California should not depend upon the discretion of
those who are charged with its administration. The Commission majority
recommends that reporting requirements be imposed to systematically
collect and make public data regarding all decisions by prosecutors in
murder cases whether or not to charge special circumstances and/or seek the
death penalty, as well as the disposition of such cases by dismissal, plea or
verdict in the trial courts. The Legislature should impose a requirement
upon courts, prosecutors and defense counsel to collect and report all data
needed to determine the extent to which race of the defendant, the race of the
132

Everingham, Ridgley, Reardon & Anderson, Feasibility Study: Characterizing the Administration and
Assessing the Administrative Costs of the Death Penalty in California, p. 11 (Rand Corp., August 2007).

99

victim, geographic location and other factors affect decisions to implement
the death penalty, to accurately determine the costs, and to track the progress
of potential death penalty cases. This recommendation was among the most
vigorously debated by the Commission, with some Commissioners believing
that data collection is useless without a carefully defined purpose for the
data. The Commission majority concluded that a newly created Death
Penalty Review Panel would play a vital role in defining what data is
necessary to carry out its monitoring and advising functions.
The Commission received a recommendation from Professors Ellen
Kreitzberg, Michael Radelet and Steven Shatz describing a comprehensive
system of data collection modeled on the system implemented by the
Supreme Court of New York. 133 Some counties, such as Alameda County,
already routinely collect much of the data that would be reported. The
Commission recommends that reporting requirements be imposed to
systematically collect and make public cumulative data regarding all
decisions by prosecutors in murder cases whether or not to charge special
circumstances and/or seek the death penalty, as well as the disposition of
such cases by dismissal, plea or verdict in the trial courts.

133

Kreitzberg, Radelet & Shatz, Response to Questions on Proportionality Review and Data Collection,
March 12, 2008. (Available on Commission’s Website).

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The Legislature should impose a requirement upon courts, prosecutors
and defense counsel to collect and report any data other than privileged
material designated by the California Death Penalty Review Panel which
may be necessary: (1) to determine whether demographics affect decisions
to implement the death penalty, and if so, how; (2) to determine what impact
decisions to seek the death penalty have upon the costs of trials and postconviction review; and (3) to track the progress of potential and pending
death penalty cases to predict the future impact upon the courts and
correctional needs. The information should be reported to the California
Department of Justice and the California Death Penalty Review Panel. The
information reported should be fully accessible to the public and to
researchers.
The experience of this Commission in undertaking a comprehensive
review of the administration of California’s death penalty law confirms the
need for more comprehensive collection of data and the continual
monitoring and analysis of that data, to identify and address the problems of
delay, chronic under-funding, and the potential risk of wrongful convictions
and executions, and to assure ourselves that racial and geographic variations
do not reflect the inappropriate exercise of discretion.

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The Commission majority recommends the establishment of a
California Death Penalty Review Panel, to be composed of judges,
prosecutors, defense lawyers, law enforcement representatives and victim
advocates appointed by the Governor and the Legislature. It should be the
duty of this Panel to issue an annual report to the Legislature, the Governor
and the courts, gauging the progress of the courts in reducing delays in death
penalty cases, analyzing the costs of and monitoring the implementation of
the recommendations of this Commission, and examining ways of providing
safeguards and making improvements in the way the California death
penalty law functions.
4. The Need for Greater Transparency in the Exercise of
Prosecutorial Discretion to Pursue the Death Penalty.
Although the Commission’s attempt to survey prosecutors was largely
unsuccessful, the ACLU of Northern California conducted a survey of
defense attorneys to ascertain the death penalty charging procedures in their
counties. 134 They received information regarding the practices in fifteen
active death penalty counties, 135 in most cases from the Chief Public
Defender or a deputy. The data obtained was entirely consistent with that
134

Natasha L. Minsker, Charging Practices of CA DA’s in Death Penalty Cases, Survey Responses, Letter
to the Commission dated Feb. 15, 2008 (Available on Commission’s Website).

135

Responses were obtained for Alameda, Contra Costa, Fresno, Kern, Los Angeles, Orange, Riverside,
Sacramento, San Bernardino, San Diego, San Mateo, Santa Clara, Solano, Tulare and Ventura Counties.
Thus, all of the top ten death-sentencing counties were included. See n. 96, supra.

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collected by the Pepperdine researchers. It demonstrated great variation in
the practices for charging special circumstances, a lack of racial diversity
among the individuals who made the decision, great variation in when the
decision was made, and significant variation in the involvement of the
defense in the process. In all but three of the responding counties (Kern,
Sacramento and Solano) review panels or Committees of prosecutors were
utilized to make a recommendation to the District Attorney. Only two
responses indicated the review committees were racially diverse. In three of
the counties, the defense is not regularly consulted before a decision is
made. 136 Five of the counties permit written submissions by the defense. 137
Seven of the counties permit the defense to actually meet with the
committee. 138
There was also significant variation in when the decision to seek the
death penalty was made. Most counties made the decision after the
preliminary hearing, but there was significant variation in how long after the
preliminary hearing a decision was made. In one recent case, the

136

Kern, Riverside and San Bernardino.

137

Alameda, Contra Costa, Fresno, Los Angeles and Solano.

138

Orange, San Diego, San Mateo, Sacramento, Santa Clara, Tulare and Ventura.

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prosecution declared for the first time that it was seeking a sentence of death
on the first day of trial. 139
The Commission recently recommended that all District Attorney Offices in
California formulate and disseminate a written Office Policy to govern compliance
with the constitutional obligation to disclose exculpatory evidence. Report and
Recommendations on Compliance With the Prosecutorial Duty to Disclose
Exculpatory Evidence (March 6, 2008). We believe it is equally important that the
policy governing the decision to seek the death penalty be in writing and publicly
available. The Commission therefore unanimously recommends that all District
Attorney Offices in California formulate and disseminate a written Office Policy
describing how decisions to seek the death penalty are made, who participates in
the decisions, and what criteria are applied. Such policies should also provide for
input from the defense before the decision is made.

5. The Governor’s Clemency Power in Death Penalty Cases.
The California constitution vests the power to commute or pardon a
person condemned to death in the Governor:
Art. V, Section 8(a). Subject to application procedures provided by
statute, the Governor, on conditions the Governor deems proper, may
grant a reprieve, pardon, and commutation, after sentence, except in
case of impeachment. The Governor shall report to the legislature
each reprieve, pardon, and commutation granted, stating the pertinent
139

Dan Bernstein, A Late Penalty, Riverside Press-Enterprise, Oct. 9, 2007.

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facts and the reasons for granting it. The Governor may not grant a
pardon or commutation to a person twice convicted of a felony except
on recommendation of the Supreme Court, 4 judges concurring.
At the request of the Commission, Professors Linda E. Carter and MaryBeth Moylan of the University of the Pacific, McGeorge School of Law
undertook a comprehensive study of the use of commutation in California
death penalty cases. 140 Historically, they found substantial variation in the
rates at which California Governors exercised clemency in death penalty
cases. Governor Culbert Olson (1939-1942) commuted 16 death sentences
while overseeing 29 executions. 141 Governor Earl Warren (1943-1953)
commuted 7 death sentences while overseeing 80 executions. 142 Governor
Edmund G. “Pat” Brown commuted 20 death sentences while presiding over
20 executions. 143 The last commutation of a death sentence in California was
by Governor Ronald Reagan in 1967. Governor Reagan also presided over
one execution. Since the enactment of the current California death penalty
law in 1978, there have been 13 executions. Clemency was denied in all 13

140

Carter and Moylan, Clemency in Capital Cases (2008) (Available on the Commission’s Website).

141

Governor Olson’s Clemency Secretary was Stanley Mosk, who later served as California Attorney
General and as a Justice of the California Supreme Court for 37 years.
142

Governor Warren later served as Chief Justice of the United States Supreme Court for 15 years.

143

One of Governor Brown’s Clemency Secretaries was Arthur Alarcon, now a Senior Judge of the U.S.
Court of Appeals for the Ninth Circuit. Governor Brown authored a book describing his experiences in
considering death penalty commutations. Edmund (Pat) Brown with Dick Adler, Public Justice, Private
Mercy: A Governor’s Education on Death Row (1989).

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cases: five by Governor Pete Wilson, five by Governor Gray Davis, and
three by Governor Arnold Schwarzenegger.
Professors Carter and Moylan conclude that executive clemency
cannot and should not function as a device to review procedural errors or
legal challenges to execution. Its purpose is to provide a safety valve, and
its unregulated nature furthers that purpose. They do make two
recommendations to amend Article V, Section 8(a) of the California
constitution, however, and the Commission unanimously supports these
recommendations:
1. Decisions denying clemency in death cases should be preserved in
the records of the Legislature as well as decisions granting clemency. All of
the last thirteen denials of clemency resulted in the issuance of written
decisions, but Professors Carter and Moylan encountered difficulty in
locating all of those decisions. The second sentence of Section 8(a) should
be amended to read: “The Governor shall report to the Legislature each
reprieve, pardon, and commutation granted or denied.”
2. The requirement of Supreme Court concurrence in the grant of
executive clemency to a twice-convicted felon should be removed.
Involving the Supreme Court in the clemency process intertwines the
judicial branch in a power that is exclusively vested in the executive branch

106

by the California constitution. No other state has a process that gives the
judicial branch this type of veto power over the executive’s decision. The
concept of granting mercy is an extra-judicial function that is not within the
purview or function of a court.
The Commission is also in agreement with the suggestion of
Professors Carter and Moylan that Penal Code Section 4813 be amended to
make it discretionary rather than mandatory that requests for clemency by a
twice convicted felon be referred to the Board of Prison Terms for a written
recommendation. This proposed amendment will bring the statute into
conformity with the actual practice of recent Governors and alleviate a
possible conflict with the California constitution and its requirement of the
separation of powers.
Finally, the Commission suggests that the Governor receive
information from the attorneys for the accused, and should consider in each
case meeting personally with the attorneys for each side before making a
decision regarding commutation in a death penalty case. As the only
decision maker, the Governor should hear evidence and arguments in person
as much as possible.

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CONCLUSION
If we are to achieve the goals of justice, fairness and accuracy in the
administration of the death penalty in California, and reduce delays at least
to the national average, there is urgent need to increase funding at every
level: trials, direct appeals and habeas corpus review. Once increased
funding has been achieved, serious consideration should be given to both a
proposed constitutional amendment to permit the California Supreme Court
to transfer fully briefed pending death penalty appeals from the Supreme
Court to the Courts of Appeal, and changes to California statutes, rules and
policies to encourage more factual hearings and findings in state habeas
proceedings in death penalty cases.
Reporting requirements should be imposed to systematically collect
and make public cumulative data regarding all decisions by prosecutors in
murder cases whether or not to charge special circumstances and/or seek the
death penalty, as well as the disposition of such cases by dismissal, plea or
verdict in the trial courts.
A Death Penalty Review Panel should be established to issue an
annual report to the Legislature, the Governor and the courts, gauging the
progress of the courts in reducing delays, analyzing the costs of and
monitoring the implementation of the recommendations of this Commission,

108

and examining ways of providing safeguards and making improvements in
the way the California death penalty law functions.
Each District Attorney Office in California should formulate a written
Office Policy describing when and how decisions to seek the death penalty
are made.
The constitutional and statutory provisions governing Gubernatorial
clemency should be modified to maintain consistent records and eliminate
unnecessary procedural steps.
This report sets forth an ambitious and expensive agenda of reform.
The failure to implement it, however will be even more costly. The death
penalty will remain a hollow promise to the people of California.
Respectfully submitted,
California Commission on the Fair Administration of Justice:
John K. Van de Kamp, Chair
Jon Streeter, Vice Chair*
Diane Bellas, Alameda County Public Defender
Harold O. Boscovich, Jr., Danville
Chief William Bratton, Los Angeles Police Department (Represented by
Gerald Chaleff)*
Jerry Brown, California Attorney General (Represented by Scott Thorpe,
Janet Gaard, and Donald DeNicola)*

109

Ron Cottingham, Peace Officers Research Association of California
Glen Craig, Sacramento
Chief Pete Dunbar, Pleasant Hill Police Department
Jim Fox, San Mateo County District Attorney
Rabbi Allen Freehling, Los Angeles
Michael Hersek, California State Public Defender
Sheriff Curtis Hill, San Benito County
Prof. Bill Hing, University of California at Davis*
Michael P. Judge, Los Angeles County Public Defender*
George Kennedy, former Santa Clara County District Attorney
Michael Laurence, Habeas Corpus Resource Center
Alejandro Mayorkas, Los Angeles
Judge John Moulds, Sacramento
Prof. Cookie Ridolfi, Santa Clara University School of Law
Douglas Ring, Santa Monica
Greg Totten, Ventura County District Attorney*
Gerald F. Uelmen, Executive Director
Chris Boscia, Executive Assistant
California Commission on the Fair Administration of Justice
900 Lafayette St., Suite 608, Santa Clara, California 95050
Telephone 408-554-5002; FAX 408-554-5026
Website: http://www.ccfaj.org.
*See separate statement attached to this report.
110

APPENDIX I:
DEATH PENALTY FOCUS QUESTIONS
1. Should reporting requirements be imposed to systematically collect and
make public data regarding all decisions by prosecutors in murder cases
whether or not to charge special circumstances and/or seek the death
penalty, as well as the disposition of such cases by dismissal, plea or verdict
in the trial courts?
2. Should the California constitution be amended to permit the transfer of
jurisdiction over pending death penalty appeals from the Supreme Court to
the Courts of Appeal?
3. Should California law be changed to require state habeas corpus petitions
in death penalty cases be filed in the Superior Courts?
4. Should California law be changed to narrow the special circumstances
that would make a defendant eligible for the death penalty?
A. Should death penalty eligibility be limited to cases in which the
defendant was the actual killer?
B. Should death penalty eligibility be limited to cases in which the
defendant formed the intent to kill?
C. Should felony murder special circumstances be retained?
D. Should special circumstances be limited to the “worst of the
worst’? If so, which special circumstances define the “worst of the
worst”?
5. What measures should be taken to assure the prompt appointment of
qualified lawyers to provide competent representation for the defendant in
death penalty cases at the trial stage, on direct appeal, and for habeas corpus
challenges?
6. Should consistency of representation be provided for state and federal
habeas corpus proceedings in death penalty cases?
7. Are funding and support services for the defense of capital cases adequate
to assure competent representation by qualified lawyers?

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8. Are there significant racial disparities associated with the race of the
victim or the defendant in imposing the death penalty in California? If so,
what remedies are available to minimize or eliminate the problem?
9. Are there significant geographical disparities from county to county in
utilizing the death penalty in California? Is this a problem? If so, what
remedies are available to minimize or eliminate the problem?
10. Is there a need for proportionality review of death penalty sentences in
California? If so, how should such a review process be incorporated into
California’s death penalty law?
11. Are clemency procedures used by California governors consistent from
one administration to the next? Are they consistent with the procedures
utilized by other states? Are they adequate to assure a fair opportunity to be
heard by all interested parties, and to assure a principled decision on the
merits?

112

Appendix II

HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, CA 94107
Tel 415-348-3800 Š Fax 415-348-3873
www.hcrc.ca.gov

FEDERAL GRANTS OF RELIEF IN CALIFORNIA CAPITAL CASES
(JUDGMENTS ARE FINAL) (N=38)

1.
2.

Inmate

Result

Acala, Rodney
Ainsworth,
Steven

Granted

Relief Granted
on Guilt or
Penalty
Guilt

Granted

Penalty

3.

Bean, Anthony

Granted

Guilt

4.

Bloom, Robert

Granted

Guilt

5.

Caro, Fernando

Granted

Penalty

6.

Clark, William

Granted

Guilt (Special
Circumstance)

7.

Coleman,
Russell

Granted

Penalty

8.

Daniels, Jackson

Granted

Guilt

9.

Douglas, Fred

Granted

Penalty

10. Dyer, Alfred

Granted

Guilt

11. Frierson, Lavell

Granted

Penalty

12. Ghent, David

Granted

Guilt (Special
Circumstance)

13. Grant, Richard

Granted in
District Court
(Petitioner

Case Citation

Alcala v. Woodford, 334 F.3d 862 (9th Cir. 2003)
Ainsworth v. Woodford, 268 F.3d 868 (9th Cir.
2001)
Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998),
cert. denied, 528 U.S. 922 (1999)
Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997),
cert. denied, 523 U.S. 1145 (1998)
Caro v. Woodford, 280 F.3d 1247 (9th Cir.), cert.
denied, 536 U.S. 951 (2002)
Clark v. Brown, 442 F.3d 708 (9th Cir.), cert.
denied, 127 S. Ct. 555 (2006)
Coleman v. Calderon, 210 F.3d 1047 (9th Cir.
2000)
Daniels v. Woodford, 428 F.3d 1181 (9th Cir.
2005), cert. denied, 127 S. Ct. 2876 (2007)
Douglas v. Woodford, 316 F.3d 1079 (9th Cir.),
cert. denied, 540 U.S. 810 (2003)
Dyer v. Calderon, 151 F.3d 970 (9th Cir.), cert.
denied, 525 U.S. 1033 (1998)
Frierson v. Woodford, 463 F.3d 982 (9th Cir. 2006),
cert. denied, 127 S. Ct. 2976 (2007)
Ghent v. Woodford, 279 F.3d 1121 (9th Cir. 2002)
Grant v. Brown, Order, Civ. S-90-0779 (E.D. Cal.
Jan. 12, 2006)

Penalty

113

Inmate

Result

Relief Granted
on Guilt or
Penalty

Case Citation

appealed denial
of guilt relief;
Warden did not
appeal grant of
penalty relief)
Hamilton,
Bernard

Granted

Penalty

15. Hayes, Blufford

Granted

Guilt

Granted

Penalty

Granted
Granted in
District Court
(Parties
stipulated to
dismissal of
appeal)
Granted in
District Court
(Neither party
appealed)
Granted

Penalty

14.

Hendricks,
Edgar
17. Hovey, Richard
16.

18. Howard, Gary

19. Hunter, Michael
20. Jackson, Earl

21. Jackson, Michael Granted
22.

Jennings,
Michael

23. Karis, James

Howard v. Calderon, Order, CV 88-7240 (C.D. Cal.
Sept. 26, 1996)

Penalty

Hunter v. Vasquez, Order, C 90-3275 (N.D. Cal.
Dec. 9, 1998)
Penalty

Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008)
Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000),
cert. denied, 531 U.S. 1072 (2001)
Jennings v. Woodford, 290 F.3d 1006 (9th Cir.
2002), cert. denied, 539 U.S. 958 (2003)
Karis v. Calderon, 283 F.3d 1117 (9th Cir. 2002),
cert. denied, 539 U.S. 958 (2003)

Penalty

Granted

Guilt

Granted

Penalty

Granted in
District Court
(Petitioner
appealed denial
24. Keenan, Maurice
of guilt relief;
Warden did not
appeal grant of
penalty relief)
Granted in
District Court
25. Malone, Kelvin
(Executed in
Missouri)
Mayfield,
26.
Granted
Demetrie

Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.), cert.
denied, 512 U.S. 1220 (2000)
Hayes v. Brown, 399 F.3d 972 (9th Cir. en banc
2002)
Hendricks v. Calderon, 70 F.3d 1032 (9th Cir.
1995), cert. denied, 517 U.S. 1111 (1996)
Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006)

Penalty

Keenan v. Woodford, 2001 WL 835856 (Dec. 21,
1999)

Penalty

Malone v. Vasquez, Order, 96-4040-WJR, (C.D. Cal
Jan. 11, 1999)

Penalty

Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001)

114

Inmate

Result

Relief Granted
on Guilt or
Penalty

McDowell,
Charles

Granted

Penalty

28. McLain, Robert

Granted

Penalty

29. Melton, James

Granted in
District Court
(Neither party
appealed)

Guilt

30. Moore, Charles

Granted

Guilt

31. Morris, Bruce

Granted

Penalty

Granted

Penalty

33. Odle, James

Granted

Guilt

Ramirez,
34.
Richard

Granted in
District Court
(Warden did not
appeal)

Guilt

35. Sandoval, Alfred

Granted

Penalty

36. Silva, Benjamin

Granted

Guilt

37. Wade, Melvin

Granted

Penalty

Granted in
District Court
(Parties
stipulated to
dismissal of
appeal)

Penalty

27.

32.

38.

Murtishaw,
David

Williams,
Michael

Case Citation

McDowell v. Calderon, 130 F.3d 833 (9th Cir. en
banc 1997), cert. denied, 523 U.S. 1103 (1998)
McLain v. Calderon, 134 F.3d 1383 (9th Cir.), cert
denied, 525 U.S. 942 (1998)
Melton v. Vasquez, Order, CV 89-4182 (C.D. Cal.
Jan. 19, 2007)
Moore v. Calderon, 108 F.3d 261 (9th Cir.), cert.
denied, 521 U.S. 1111 (1997)
Morris v. Woodford, 273 F.3d 826 (9th Cir.), cert.
denied, 537 U.S. 941 (2002)
Murtishaw v. Woodford, 255 F.3d 926 (9th Cir.
2001), cert. denied, 535 U.S. 935 (2002)
Odle v. Woodford, 238 F.3d 1084 (9th Cir.), cert.
denied, 534 U.S. 888 (2001)
Ramirez v. Vasquez, Order, 91-CV-03802 (C.D.
Cal. Feb. 5, 2008)
Sandoval v. Calderon, 241 F.3d 765 (9th Cir.), cert.
denied, 534 U.S. 847 (2001)
Silva v. Woodford, 416 F.3d 980 (9th Cir. 2005)
Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994),
cert. denied, 513 U.S. 1120 (1995)

Williams v. Vasquez, Order, 90-1212R (S.D. Cal.
Sept. 9, 1993)

115

FEDERAL DENIALS OF RELIEF IN CALIFORNIA CAPITAL CASES
(JUDGMENTS ARE FINAL) (N=16) 144
Inmate

Result

1.

Allen, Clarence

2.

Anderson,
Stephen

3.

Babbitt, Manuel

4.

Beardslee,
Donald

5.

Bonin, William

6.

Davis, Larry

7.

Fields, Stevie

8.

Harris, Robert

9.

Morales,
Michael

10. Raley, David
11. Rich, Darrell
12. Sims, Mitchell
Siripongs,
Jaturun
Thompson,
14.
Thomas
13.

15. Williams, Keith
16.

Williams,
Stanley

Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Grant by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Grant by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit

US Supreme
Court Action
Certiorari
Denied
Certiorari
Denied
Certiorari
Denied
Certiorari
Denied
Certiorari
Denied
Certiorari
Dismissed
Certiorari
Denied
Reversed
Certiorari
Denied
Certiorari
Denied
Certiorari
Denied
Certiorari
Denied
Certiorari
Denied
Reversed
Certiorari
Denied
Certiorari
Denied

144

Case Citation
Allen v. Woodford, 395 F.3d 979 (9th Cir.), cert.
denied, 546 U.S. 858 (2005)
Anderson v. Calderon, 232 F.3d 1053 (9th Cir.
2000), cert. denied 534 U.S. 1036 (2001)
Babbitt v. Calderon, 151 F.3d 1170 (9th Cir. 1998),
cert. denied, 525 U.S. 1159 (1999)
Beardslee v. Woodford, 358 F.3d 560 (9th Cir.),
cert. denied, 543 U.S. 842 (2004)
Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995),
cert. denied, 516 U.S. 1051 (1996)
Davis. v. Woodford, 384 F.3d 628 (9th Cir. 2004),
cert. dismissed, 545 U.S. 1165 (2005)
Fields v. Woodford, 503 F.3d 755 (9th Cir. 2007),
cert. denied 128 S.Ct. 1875 (2008)
Harris v. Pulley, 692 F.2d 1189, (9th Cir.1982),
rev’d, 465 U.S. 37 (1984)
Morales v. Calderon, 388 F.3d 1159 (9th Cir.
2004), cert. denied¸546 U.S. 935 (2005)
Rayley v. Ylst, 470 F.3d 792 (9th Cir. 2006), cert.
denied, 128 S. Ct. 59 (2007)
Rich v. Calderon, 187 F.3d 1064 (9th Cir. 1999),
cert. denied, 528 U.S. 1092 (2000)
Sims v. Brown, 430 F.3d 1220 (9th Cir. 2005), cert.
denied, 127 S. Ct. 62 (2006)
Siripongs v. Calderon, 133 F.3d 732 (9th Cir.),
cert. denied, 52 U.S. 839 (1998)
Thompson v. Calderon, 120 F.3d 1045 (9th Cir.
1997), rev’d, 523 U.S. 538 (1998)
Williams v. Calderon, 83 F.3d 281 (9th Cir.), cert.
denied, 517 U.S. 1183 (1996)
Williams v. Woodford, 384 F.3d 567 (9th Cir.
2004), cert. denied, 546 U.S. 934 (2005)

The table includes four cases of California inmates (Mr. Morales, Mr. Fields, Mr. Raley, and Mr.
Sims) whose first federal petition is final, but for whom successor litigation may invalidate their
convictions or sentences. Similarly, Mr. Davis died prior to a decision regarding his petition for certiorari
and thus his case was not a final decision on the merits. Nonetheless, I have included the cases out of an
abundance of caution.

116

FEDERAL DENIALS OF RELIEF IN CALIFORNIA CAPITAL CASES
(JUDGMENTS ARE NOT FINAL) (N=3)
Inmate
1.

Brown, Albert

2.

Cooper, Kevin

3.

Pinholster, Scott

Result
Denied by Ninth
Circuit
Denied by Ninth
Circuit
Denied by Ninth
Circuit

US Supreme
Court Action
Certiorari
Pending

117

Case Citation
Brown v. Ornoski, 503 F.3d 1006 (9th Cir. 2007,
cert. pending (petition filed May 1, 2008)
Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007),
petition for rehearing pending
Pinholster v. Ayers, 525 F.3d 742 (9th Cir. 2008),
petition for rehearing to be filed

STATE OF CALIFORNIA

OFFICE OF THE ATTORNEY GENERAL
EDMUND

G.

BROWN JR.

June 30, 2008

John Van de Kamp, Chairman
Members of the Commission
California Commission on the
Fair Administration of Justice
900 Lafayette Street, Suite 608
Santa Clara, CA 95050
Dear Chairman Van de Kamp and Commission Members:
I appreciate the hard work that went into this report. There are many issues involved in
the application of the death penalty in California and I know commission members strove to
achieve consensus on meaningful reforms. Regretfully, this goal still eludes us.
Capital litigation constitutes a substantial portion of my office's workload. Our lawyers
work every day to defend death penalty judgments consistent with fairness, due process and
constitutional requirements. Currently, we are handling some 343 capital cases at various stages
of direct appeal to the California Supreme Court, 103 capital cases on habeas corpus in the state
courts, 121 capital cases on habeas corpus in the federal district courts, and 16 capital cases in the
United States Court of Appeals for the Ninth Circuit. Four condemned inmates have exhausted
all challenges to their judgments and await the setting of their execution dates once the status of
California's lethal-injection protocol is resolved by the state and federal courts. I know of no
defendant facing execution who is innocent of the crime for which he was convicted and
sentenced.
I share the Commission's concerns about the high costs associated with capital litigation
and about the difficulty in finding and appointing qualified counsel to represent defendants in
these cases. I am also concerned about needless delay in reviewing capital judgments, which has
a number of causes. While death penalty proceedings warrant exceptionally careful review and
cannot be rushed, multiple rounds of repetitive litigation can cause unnecessary delay, increase
costs, and undermine respect for the criminal justice system.

1300 I

STREET·

SUITE

1740 •

SACRAMENTO, CALIFORNIA

1'S!3'l

95814 •

PHONE

(916) 324-5437 •

FAX

(916) 445-6749

John Van de Kamp, Chairman
June 30, 2008
Page 2

I agree with the Commission that consideration should be given to seeking a
constitutional amendment to permit transferring some death-penalty appeals from the California
Supreme Court to the courts of appeal. I also agree that consideration should be given to seeking
authorization to allow initiating state capital habeas corpus cases in the trial court, with appellate
review in the courts of appeal. I believe that we should promptly begin to work on these
proposals, even though their specific features need to be worked out.
I ask that this letter be included with the Commission's report.
Sincerely,

&t.AA&~
EDMUND G. BROWN JR.
Attorney General

STATEMENT OF CHIEF WILLIAM J. BRATTON

I believe that the imposition of the Death Penalty is an appropriate remedy. I further believe that
the imposition of the penalty should be imposed within a reasonable time and not unduly
delayed. There must be an assurance that those convicted of murder and sentenced to death have
received adequate representation, a full review of the legal issues involved and that they are in
fact guilty of the crimes charged. The improvements in technology and its increased use in the
determination of these cases has given me confidence that those who will be convicted and
sentenced to death will be guilty of the crimes charged. I have supported the previous
recommendations of the Commission regarding eyewitness identification, use of jailhouse
informants, confessions, scientific evidence, the professional responsibility and accountability of
prosecutors and defense lawyers to further ensure that this occurs.

I support the position that California has a dysfunctional system. A lapse of time of over two
decades between sentence and imposition of sentence is unacceptable. To require the family of
the victims to have to wait over to 20 years to have the promised punishment imposed only adds
to their pain and suffering and renders it an illusory punishment. The legislature and the people
of the State of California should undertake a meaningful debate to determine how to correct this
problem. I realize correcting the problem will require a large expenditure of funds, at a time
when we are facing a budget crisis, and may only result in the imposition of the penalty within
ten years rather than 20 years. However, if we are to impose the penalty we should do it as
expeditiously as possible, while ensuring that each defendant has received a fair trial and full
review of all legal and factual issues.

I do not join in any proposal to limit the ultimate punishment to life without the possibility of
parole or in narrowing the list of special circumstances.

DISSENT TO CALIFORNIA
COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE
REPORT AND RECOMMENDATIONS ON THE ADMINISTRATION
OF THE DEATH PENALTY IN CALIFORNIA
June 30, 2008
We respectfully dissent from the Report and Recommendations on the Administration of the
Death Penalty in California, which was issued today by the California Commission on the Fair
Administration of Justice. Regrettably, we believe the majority report indirectly assaults
California’s death penalty by seeking to undermine public confidence in our capital punishment
law and procedure. While the majority refrains from making specific recommendations to
weaken this voter approved law, the tone and unbalanced discussion of potential reform is
anything but neutral. By doing so, the majority exceeds the scope of its original charge and
unfortunately, diminishes the value of other worthwhile recommendations.
The duties of the Commission were to make recommendations as to the application and
administration of the criminal justice system in California, not to advocate for or against the
public policy issue of whether California should have a death penalty. Although the report
purports to be neutral as to capital punishment, it unmistakably reveals a personal bias against
the death penalty. The report does not reflect the views of those Commissioners joining this
dissent, or those of the majority of Californians.
At the outset, it is important to note two themes in the report with which we wholeheartedly
agree. First, delay on appeal and in habeas corpus in state and federal court is excessive and
frustrates the effective administration of the death penalty. Second, additional resources should
be expended to address a major source of that delay, the availability of sufficient competent
appellate counsel, coupled with an increase in the number of attorney general deputies to respond
to the appeals and writs. Additional funding for appellate counsel is a realistic measure that
could significantly reduce the backlog and the delays that currently plague the administration of
the death penalty in California. The Commission has performed an important service in
quantifying how much these changes would cost, and the expected benefits from those
expenditures. While the total figure of $95 million is a significant amount of money, it is a small
proportion of our state’s $140 billion annual budget, or of our state judicial branch’s $3.5 billion
budget.
Unfortunately, the Commission did not limit itself to fact-based recommendations, but added
discussion motivated by the personal philosophies of the Commissioners. For example, the
majority repeatedly uses the statement that “California’s Death Penalty system is
dysfunctional.” 1 This broad indictment of a criminal sanction that was overwhelmingly
approved by voters and still enjoys the Californian’s support by a 2 to 1 margin is not simply

1

See majority report, pp. 3, 6 and 60.

improper – it is highly misleading. 2 The report quotes California Chief Justice Ronald M.
George as stating that the death penalty system in California is “dysfunctional.” However, a
careful reading of the Chief Justice’s comments and writings makes clear that he is referring only
to the overburdened capital appellate process, and not to the entire death penalty system. 3 By
completely disregarding this context, the majority effectively bootstraps this comment into a
broader indictment of entire death penalty system and law.
The report discusses two “available alternatives” to increased funding: narrowing the list of
special circumstances that would make a murder case eligible for the death penalty, and
eliminating the death penalty altogether.
The Commission purports to “make[] no
recommendation regarding these alternatives” and claims that it merely “presents information
regarding them to assure a fully informed debate.” But the lengthy discussion of these proposals
consists entirely of arguments in favor of these alternatives and excludes any discussion against
them. A “fully informed debate” should include both sides of an issue, not just one side.
Reducing the number of special circumstances would exclude some of California’s most brutal
murderers from death row. The report goes so far as to suggest that these changes be retroactive
to killers already on death row, even though the death penalty was lawfully imposed in those
cases at the time. A few examples will illustrate how reducing the number of special
circumstances would exclude from the death penalty some of California’s most heinous murders:
ƒ

Gregory Scott Smith is on death row for the murder of an 8-year-old boy for whom he
was a teacher’s aide. 4 He had previously been mean to the victim, and on two occasions
had tied him up with jump ropes. Angry that the victim had asked that Smith be fired,
Smith gagged the victim with a cloth gag and duct tape, forcibly sodomized him, and
strangled him. He poured fire accelerant on the body and set the body on fire, where it
was discovered burning by firefighters. Smith was convicted of murder in the
commission of a kidnapping, a lewd act upon a child, and an act of sodomy. None of
these special circumstances would warrant the death penalty under the Commission’s
proposal.

ƒ

The Commission’s proposal would also exclude Mitchell Sims, known as the Domino’s
Pizza Killer, who is on death row with all state and federal review completed. 5 After
ordering pizza to be delivered to his motel room, Sims robbed the delivery driver, tied
him up, strangled him with a rope, and fully submerged him in a bathtub with a gag tied
into his mouth. After killing the driver, Sims went to Domino’s, robbed two other
employees at gunpoint, and forced them into the cooler, suspended with nooses around

2

The current death penalty law, Proposition 7, was an initiative approved at the General Election of November 7,
1978, by 72 percent of the voters. (People v. Teron (1979) 23 Cal.3d 103, 124-125.) A recent poll shows 63% of
adults in favor of the death penalty, 32% opposed, and 5% with no opinion. (Field Poll, March 3, 2006.) For
registered voters, the figures were 67% in favor, 29% opposed, and 4% no opinion. (Ibid.)
3
California Supreme Court Chief Justice Ronald M. George used the term “dysfunctional” in the narrow context of
death penalty appeal delays. In a January 7, 2008 article he wrote: “The existing system for handling capital appeals
in California is dysfunctional and needs reform. The state has more than 650 inmates on death row, and the backlog
is growing.” (Ronald M. George, Reform Death Penalty Appeals, Los Angeles Times, January 7, 2008.)
4
People v. Smith (2005) 35 Cal.4th 334.
5
People v. Sims (1993) 5 Cal.4th 405; Sims v. Brown (9th Cir. 2005) 425 F.3d 560.

2

their necks. When one employee warned that the delivery driver was due back, Sims
took off his sweater to reveal a Domino’s shirt with the driver’s name tag and chuckled,
“No, I don’t think so.” Sims was found guilty of murder with special circumstances of
murder while lying in wait and during the commission of a robbery, as well as attempted
murder and robbery of the other employees. These special circumstances would not
warrant the death penalty under the Commission’s proposal.
ƒ

Stevie Lamar Fields is also on death row, with state and federal review completed. 6
Shortly after being released from prison for a previous manslaughter, Fields became what
the California Supreme Court described as “a one-man crime wave.” Sitting in a car with
a victim, he fired five shots and told the driver to keep on driving. He said that the victim
was not dead and he needed to be sure she was, so he hit her in the head with a blunt
object and dumped her body into an alley. He was convicted of robbery-murder with the
special circumstance of murder during the commission of a robbery, as well as
kidnapping for robbery and forced oral copulation of several other women. Under the
Commission’s proposal to limit special circumstances, Fields would escape the death
penalty.

ƒ

The Commission advocates eliminating the death penalty in felony-murder cases. One
such case this proposal would exclude is Vicente Benavides, who was sentenced to death
for the murder of a 21-month-old girl he was babysitting.7 The victim died of an acute
blunt force penetrating injury of the anus. The anus was expanded to seven or eight times
its normal size, and multiple internal organs were injured. The victim’s upper lip was
torn, consistent with a hand being held over her mouth, and there was evidence of
previous rib fractures. The special circumstances were felony-murder rape, felonymurder rape, and felony-murder sodomy, all of which the proposal would eliminate as
bases for the death penalty.

These are but a few examples of special circumstances that voters, prosecutors, and juries have
rightly determined to warrant death. The Commission’s proposal to eliminate these and many
other special circumstances is not a mere efficiency measure, but would seriously weaken
California’s death penalty law.
The credibility of the report is further damaged by giving serious consideration to a proposal that
in order to obtain the death penalty, the prosecution be required to prove that the crime has
“legally impacted all citizens of the State of California,” an artificial concept that has no
precedent in the law and is totally unworkable.
A significant portion of the report is devoted to promising various purported benefits of
eliminating the death penalty altogether, including cost savings, shorter periods of jury service,
and freeing the Supreme Court to hear more cases of other types. This section makes no attempt
to even mention a single argument in favor of the death penalty such as deterrence that will save
lives, the community’s sense of justice, or upholding the will of the People who enacted the

6
7

People v. Fields (1983) 35 Cal.3d 329; Fields v. Brown (9th Cir. 2007) 503 F.3d 755.
People v. Benevides (2005) 35 Cal.4th 69.

3

death penalty. 8 One of the most important reasons for maintaining the death penalty, its
deterrent effect, is quickly dismissed in a footnote earlier in the report as a “contested issue.” 9
Some of the commissioners came to the project with the unfounded assumption that the death
penalty is being administered in a discriminatory manner against minorities, and that prosecutors
must be considering some undisclosed improper factors to make decisions. The report engages
in a circular logic that bemoans the lack of evidence to support these assumptions, and then
proposes establishing another commission, the California Death Penalty Review Panel, to study
whether there is any evidence to support these suspicions. In fact, during the 30-year history of
California’s death penalty law, there is never been even a single finding of prosecutorial abuse in
this decision making process. We oppose the creation of a California Death Penalty Review
Panel as an unnecessary creation of another level of bureaucracy.
The report’s apprehension regarding the process utilized by district attorneys to make death
penalty decisions is similarly without factual basis. The report begins with the assumption that
87% of first degree murders are eligible for the death penalty, a figure that we cannot accept as
accurate. For example, in Ventura County, the District Attorney has sought death in only 4% of
the murder cases filed, reserving this decision for the worst of the worst. Statewide, only 2% of
“cleared” murder cases have resulted in death verdicts. The formulation of formal written
policies as to how prosecutorial discretion will be exercised is not required by law and would
serve primarily to create new grounds for condemned prisoners to challenge their convictions.
The factors to be considered are already laid out in the statutory enumeration of factors in
aggravation and factors in mitigation.
Most puzzling is the lengthy discussion and the call for further study on the issue of “geographic
disparity” between the counties, even though the law is clear that uniformity between different
jurisdictions is not required. This entire discussion is inappropriate in light of the Commission’s
acknowledgement that the “data does not establish that prosecutorial discretion is affected by
race and class bias, unconscious or otherwise.” The voters of each county select a District
Attorney to enforce the law, including the death penalty, according to his or her exercise of
discretion. Uniformity is not mandated and should not have been the subject of the
Commission’s agenda.
The Commission discusses the proposal of Ninth Circuit Senior Judge Arthur Alarcon to
encourage hearing habeas corpus petitions in Superior Court. The report also discusses the
proposal of Chief Justice Ronald M. George to transfer capital appeals from the California
Supreme Court to the Courts of Appeal. These are thoughtful proposals from distinguished
jurists that merited additional discussion and study before an endorsement by the Commission
should have been made. Additional ideas, such as establishing a court of criminal appeals
similar to that used in Texas, also warrant discussion, and should have been addressed by the
Commission.

8

See Baze v. Rees (2008) 128 S.Ct. 1520, 1547, 170 L.Ed.2d 420, 450, fn. 13 (Stevens, J., conc.), and 128 S.Ct. at
1553, 170 L.Ed.2d at 456 (Scalia, J., conc.).
9
Majority report, p. 4, n. 8.

4

The report’s introduction correctly notes that the commissioners hold a diverse spectrum of
divergent views on the death penalty. We respect the diversity of opinion on this issue in our
democratic society and have never doubted the sincerity of any of the commissioners in their
views. The problem is that the final report is entirely unbalanced. It gives weight only to those
who seek to limit or eliminate the death penalty, and ignores views in favor.
We fear that the important accomplishments of the Commission addressing improvements in the
administration in the death penalty will be overshadowed by the report’s obvious bias against
capital punishment. The Commission’s report will rightly expose the Commission to extensive
criticism where the horrific facts of hundreds of cases impacted by such a policy will be cited in
detail. Such recommendations create the likelihood that the Commission will be marginalized
and identified as an anti-death penalty body. Under no circumstances can we support or be a
silent partner to such a fundamentally flawed effort to weaken our existing death penalty law.
Respectfully submitted,
GREGORY D. TOTTEN
District Attorney
County of Ventura
I join in the dissent:
HAROLD BOSCOVICH
Retired, Director Victim/Witness
County of Alameda
RON COTTINGHAM
President, Peace Officers Research Association of California
PETE DUNBAR
Chief of Police, Pleasant Hill
California Police Chiefs Association Representative
CURTIS HILL
Sheriff
County of San Benito

5

STATEMENT OF COMMISSIONER ALEJANDRO MAYORKAS
IN RESPONSE TO REPORT AND RECOMMENDATIONS
ON THE ADMINISTRATION OF THE DEATH PENALTY IN CALIFORNIA
June 30, 2008

The charge of our Commission has been to assess the administration of criminal justice in
California and to recommend improvements. In the last phase of our work as a Commission, we
have focused our attention on the administration of the death penalty in particular. I appreciate
the strong feelings the death penalty engenders, and understand there are divergent views of the
appropriateness of the death penalty itself. However, I do not believe it has been our
Commission’s charge to opine on whether or not the death penalty should be available as the
ultimate sentence, or whether the crimes that qualify for its imposition should be limited in any
fashion. To the extent our Commission’s final report renders any such opinions, explicitly or
implicitly, I respectfully dissent. The decision whether to have a death penalty in California, and
to what extent, is within the province of the People of this State, and our charge as a Commission
has been to make recommendations we believe will enhance the fair administration of it.
Respectfully submitted,
ALEJANDRO N. MAYORKAS
Commissioner
California Commission on the Fair Administration of Justice

Supplemental Statement on Repealing the Death Penalty
by the following Commissioners:
Diane Bellas, Alameda County Public Defender
Rabbi Allen I. Freehling, Executive Director, City of Los Angeles Human
Relations Commission
Michael Hersek, California State Public Defender
Bill Ong Hing, Professor, U.C. Davis School of Law
Michael P. Judge, Los Angeles County Public Defender
Michael Laurence, Executive Director, Habeas Corpus Resource Center
Hon. John Moulds, Magistrate Judge, U.S. District Court – Eastern District
Douglas Ring, Businessman, The Ring Group
June 30, 2008
Introduction
We support the recommendations of the Commission if Californians elect
to continue the death penalty. However, we write separately because, after
carefully considering all the information and evidence put before the
Commission, we believe that the death penalty should be repealed. 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, a low income defendant faces a troubling disadvantage when
charged with a capital offense, the death penalty forecloses any possibility of
healing and redemption, the death qualification juror requirement inherently and
unjustly biases the process against the defendant, and California should follow
the lead of other civilized societies who have concluded that the death penalty be
abolished.
The Commission’s report is the product of serious deliberations over the
fairness of the death penalty in California. All members took their responsibilities
seriously, with a deep commitment to justice. We are convinced that when it
comes to the death penalty (and indeed punishment for any crime) every member
of the Commission wants to make sure that the convicted person is the actual
perpetrator, in other words, that no innocent person is convicted of a crime.
We submit this separate statement with the greatest respect for our cocommissioners who have chosen not to comment more broadly. However, we
present these additional views out of a sense personal duty to the public for
whom we pledged responsibility when we agreed to serve. The Commission
report is the result of hard, collaborative work aimed at outlining how the death
penalty can be administered in a fair and just manner; in short, the
recommendations address how to make the system functional. However, as we
listened to testimony, read written submissions and research, and participated in
Commission discussions, it became clear to us that the question of whether to

1

continue the death penalty at all had to be considered; we felt that the public
should know that there are good reasons to consider abolishing the death penalty
beyond the system’s dysfunctionality.
Summary of Reasons
Here is a brief summary of the reasons that have convinced us that the
people of California ought to repeal the death penalty.
Costs. The resources that go into a death penalty case are enormous. The
pursuit of execution adds millions at each phase of the process, from trial, to
appeal, and habeas proceedings. For example, a death penalty trial costs counties
at least $1.1 million more than a conventional murder trial. The state spends at
least an additional $117 million a year on capital punishment, about half of it on
prison expenses that exceed the usual costs of housing inmates and the rest on
arguing and judging death penalty appeals. The costs mount because death
penalty trials and appeals take far longer than others, involve more lawyers,
investigators and expert witnesses, and displace other cases from courtrooms. In
contrast, adopting a maximum penalty of life without possibility of parole (for
which there is growing sentiment) would incur only a fraction of the death
penalty costs, including prison expenses. Our personal view is that funds spent
administering the death penalty would be better spent on other California
priorities like health, education, and infrastructure, or for providing direct
financial and social services to the relatives of crime victims.
Racial and geographic variation. The Commission considered research by
Professors Glenn Pierce and Michael Radelet on variations in the death penalty
related to race and geographical location. The counties with the highest death
penalty sentencing rates tend to have the highest proportion of whites in their
population and are more rural. Also, those who kill African Americans and
Latinos are less likely to be sentenced to death than those who kill whites. The
Commission was not willing to recommend comparative proportionality review
in death penalty cases, as required in some states, and thought that the racial
data was insufficient on which to base recommendations. In other words, the
good faith of local prosecutors should be given deference. In our view, the Pierce
and Radelet data and similar research are good cause to recommend termination
of the death penalty. The data are troubling, and leaving these important
determinations to the good faith of local prosecutors, who are subject to political
winds, is fraught with potential inconsistency and danger. The Commission came
across no evidence of intentional racial motivation on the part of prosecutors who
seek the death penalty. Yet, persons of color have been sentenced to death at
rates far exceeding their numbers in the population. Why? Our society has not
reached the point where unconscious racism and institutional bias based on past
processes and beliefs have been eliminated. We fool ourselves if we believe that
we have evolved beyond institutional racism in our state and country. Consider
the fact that the homicide rate for black and Latino victims is much higher than
white victims. Violent crime in low-income Southeast Asian communities is on

2

the increase as well. Poverty and socioeconomic challenges in those communities
create racial impact whether we like it or not. The correlation between poor
communities (that are comprised of many blacks, Latinos, and Southeast Asians)
and crime and inadequate representation is just too high to accept capital
punishment as a potential penalty.
Economic disadvantage. Another regrettable feature of the death penalty is
that it disproportionately punishes the poor. In Furman v. Georgia, Supreme
Court Justice William Douglas noted, “One searches our chronicles in vain for the
execution of any member of the affluent strata in this society.” 1 Economically
deprived, marginalized Californians are particularly vulnerable in society and
within the judicial system. Over 90 percent of defendants charged with capital
crimes are indigent, and as a result the vast majority of death row inmates in
California are poor. In our view and experience, a poor defendant initially may be
at a disadvantage primarily because poverty fractures his or her past. How can a
picture be painted of such an individual who rarely went to school or saw a
doctor, whose own parents might be unknown to him or her, whose illiteracy
compromises the ability to participate fully as a member of the defense team,
whose "neighbors" were transient? A jury can be made aware of these things, but
they do not "mitigate" in the common sense of that word. A person who can
finance a death penalty defense will have no trouble establishing history as a
student, family member, patient, neighbor, employee or even employer. Thus,
poverty creates serious disparities in the administration of justice as well. A
person of means can afford to employ forensic experts with the most impressive
resumes who may have access to nationally acclaimed labs. In contrast, those of
modest means are often limited to experts on a court-appointed list who have
agreed to work at the lowest end of the compensation scale who are likely to lose
the battle of curricula vitae. Furthermore, the indigent accused may not be
fortunate enough to be represented by an institutional Public Defender team with
the experience, skills, and resources to provide high quality, zealous advocacy.
Instead, such an indigent may be saddled with an appointed lawyer who lacks
those essential qualities. Such a defendant lacks the sophistication to know
whether the appointed lawyer is properly preparing the guilt and penalty
defenses and no one is monitoring the preparation. A person of means can afford
to hire a team and, with money as leverage, is in a better position to insist that
the entire team explain all the alternatives and strategies that are available. The
person who can hire a ten-person defense team is an aberration. The more likely
scenario involves the middle class defendant who pools all the family resources
and puts up the house to pay an attorney who, it turns out, has never tried a
capital case. In those cases, the client may have been better off in a California
county with a Public Defender office where death penalty cases generally are well
handled (with the defendant assigned two attorneys at the outset, unlike courtappointed systems where second chair is appointed after the preliminary hearing
and after the district attorney has made the final decision regarding whether to
seek death). Most county Public Defender offices have defense investigators and
1

408 U.S. 238 (1972).

3

in-house expertise on a myriad of issues and topics. The problem is that
depending on where the crime occurs in California, the defendant could have all
of this or none of it, and that is the travesty caused by poverty. In short, the death
penalty has a troubling, disparate impact on the poor.
Risk of error. While the Commission found no conclusive evidence that
any wrongfully convicted person has ever been executed in California since 1977,
the risk is unmistakable. Many jurists and researchers are convinced that the
likelihood of wrongly convicted defendants having been executed in the United
States is high. Unfortunately, in our criminal justice system, wrongful
convictions arising from such factors as faulty eyewitness identification, false
confessions, police mistake or misconduct, and prosecution mistake or
misconduct occur with unacceptable frequency. Inept defense representation,
lack of defense resources, and shoddy investigations also increase the risk of
error. Many individuals on death row have been exonerated or otherwise have
had their convictions set aside. That means that now or in the future, a person
improperly sentenced to death will likely be sitting on California’s death row. We
have experienced advances in DNA science, but the problem is that in the vast
majority of criminal cases, DNA evidence is not available. This all raises the grim
prospect that someday a mistake will be made (if one has not already been made
of which we are unaware), and an innocent person or one wrongfully sentenced
will be put to death in California. There is good reason why experienced Supreme
Court justices from Douglas and Blackmun to O’Conner and Ginsburg, as well as
other jurists across the country, have expressed great skepticism about the
accuracy and fairness of the implementation of the death penalty.
Closing off other options. Another major concern that the death penalty
raises for us is that it closes the door on any possibility of redemption and
healing, something that we should all care about as a civil society. We heard
testimony from relatives of murder victims who had the opportunity to meet with
the murderers of their loved ones. Several were convinced of the sincerity of
remorse that the perpetrators expressed and believed in their redemption. Those
experiences have convinced many such relatives that capital punishment must be
abolished. Loved ones of murdered victims have shared with us their poignant
experiences of finding a comforting balm, produced by extolling life over death by
virtue of their advocacy of a sentence of imprisonment until death without
execution, for those convicted of such crimes. Moreover, some of those who have
lost family members report they have benefited as a result of participating in
what are essentially strength-based therapeutic sessions together with prisoners
who demonstrated honest remorse. In addition, there are some loved ones who
receive spiritual validation and fulfillment by assisting those convicted who
genuinely pursue redemption in their own penitential journey toward the
ultimate judgment of their savior. Are some individuals beyond redemption or
rehabilitation? Probably. But being sentenced to life without the possibility of
parole addresses that problem. A civil and compassionate society should embrace
the opportunity to develop the humanity in these individuals through our own
humanity, but the death penalty forecloses that option.

4

Death qualification. We are also deeply troubled by the death qualification
requirement for jurors. As the Commission report points out, during jury
selection, potential jurors in capital cases are questioned about their views
regarding capital punishment in order to determine whether they will be able to
follow the law in deciding what sentence to impose. In order to be "deathqualified" to serve on a capital jury, a person must be willing to consider all of the
sentencing options - usually death and life imprisonment without parole. If their
opinions would prevent them from considering any of the sentencing options,
then they are not "death-qualified" and are barred from serving on the jury. This
culling of potential jurors based on their moral views may produce a jury that
looks quite different from the community at large and also, as some studies show,
may bias the jury toward a verdict of guilt for the defendant. Capital juries tend to
be less representative with respect to gender and race because women and
African Americans are more opposed to the death penalty than white men.
Researchers have found that the jury in capital trials is more biased toward the
prosecution and a guilty verdict as compared to the juries in robbery trials or
non-capital murder trials. There is evidence that death qualification biases the
jury in two different ways. First, it tends to select jury members who are
“conviction prone.” Second, the very process of death qualification may further
bias the jurors. A credible argument can be made that questioning the jurors
intensively about punishment, before the trial even starts, suggests that there will
be a sentencing phase of the capital trial – implying that the defendant is
probably guilty. Death qualified juries deliberate less thoroughly and possibly less
accurately than juries that better represent the whole population. This is born out
by a study that reported that over 40 percent of jurors in capital cases surveyed
admitted they had already decided on the penalty before the guilt phase had
concluded. Thus, the requirement of a death qualified jury in itself causes
unfairness.
Evolving standards in other countries. Capital punishment has been
abandoned by a majority of the countries of the world. The list includes allies and
many with whom we share a common heritage like the United Kingdom,
Germany, France, Spain, Mexico, Ireland, the Philippines, and Canada. Even
countries like Russia and Myanmar have a de facto ban on the death penalty. In
Israel, capital punishment is illegal in almost all circumstances; the death penalty
was abolished there in 1954 with the exceptions of conviction for genocide, war
crimes, crimes against humanity, crimes against the Jewish people, and treason
in wartime. As a death penalty jurisdiction, California is in the company of such
countries as North Korea, China, Iran, Saudi Arabia, Libya, Kuwait, Pakistan,
Afghanistan, Cuba, and Egypt.
The Commission report points out that New Jersey abolished the death
penalty this past December. In doing so, New Jersey joined thirteen other states
(Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New York,
North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin), plus the
District of Columbia and Puerto Rico, to ban capital punishment. Illinois has had

5

a moratorium on the death penalty for several years. New Jersey’s ban came on
the heels of a state Death Penalty Study Commission report that concluded that
the death penalty did not fit with evolving standards of decency, was more costly
to the state than life in prison, did not effectively prevent violent crime, and could
lead to innocent people being executed. The commission – comprised of
prosecutors, law-enforcement, victims, religious groups, and individuals – also
reported that the death penalty law had not resulted in an execution since 1963
and was unfair for victims' families seeking swift justice.
Voices of Relatives of Victims
We can understand the desire of relatives of murder victims to see the
murderers put to death by the state. Revenge, retaliation, and retribution are
natural responses for many human beings. The Commission received some
testimony to this effect. But in the words of former Missouri Supreme Court
Justice Charles B. Blackmar, “The relatives of the victim have the right to demand
swift and sure punishment, but they do not have the right to demand death when
the process is so severely flawed.” 2 We sincerely wish that victims’ families who
are looking for revenge or closure through the death penalty could find peace for
their pain and agony through some other means.
In contrast, the Commission heard the words of other relatives of victims
who are opposed to the death penalty. We admire all of the courageous relatives
of victims who came before the Commission (both for and against the death
penalty) to testify. However, we were particularly moved by those who spoke in
opposition to the death penalty; we honestly do not know if we would have the
ability to find forgiveness and compassion in our hearts under the same
circumstances. It would be so much easier to hate and to lash out at the
perpetrator. But knowing what we now know about the death penalty and why we
think it should be repealed, we pray that we would have the ability and capacity
to choose forgiveness over retribution if a loved one were murdered. Here are
examples of those relatives of victims who demonstrated such remarkable
capacity:
•

•

Aba Gayle spoke of her twelve years of anger and rage, until she wrote to
the murderer of her daughter. She now has visited the man in San Quentin
many times, and she has forgiven him. He has expressed deep remorse
and has wept while he apologizes. The man who murdered Aba’s daughter
no longer exists in her opinion. She feels that state-sanctioned capital
punishment would tarnish the memory of her daughter.
Dawn Spears’ daughter was murdered, leaving three children. Dawn does
not want the children growing up with hate in their hearts. She feels that if
she wanted death for the murderer, the message she would be conveying

2

Charles B. Blackmar, Death Penalty Process is Full of Fatal Flaws (Letter to the Editor), ST.
PETERSBURG TIMES, Feb. 15, 2003, available at:
http://www.sptimes.com/2003/02/15/Opinion/Death_penalty_process.shtml

6

•

•

•

•

to the children is that it’s okay to react violently. She cannot live with that
in her heart, and she does not want her grandchildren to live with that in
their hearts.
The murderers of Barbara Zerbe Macnab’s father were executed even
though her mother pleaded with the court to spare their lives. Barbara
testified that capital punishment does not lessen the pain of the victim’s
family. Revenge is not beneficial to those who have lost a loved one.
The daughter of Amanda and Nick Wilcox was murdered by a deranged
gunman who went on a rampage. Mr. and Mrs. Wilcox urged the
prosecutor not to seek the death penalty. They knew that their daughter
would not have wanted the broken, expensive, and violent practice of
capital punishment administered in her name. They believe that life
without possibility of parole is appropriate for holding murderers
accountable and keeping society safe.
Aundre Herron’s brother was murdered, Herron first had a violent
reaction to seek revenge. But she then realized that doing so would have
forever tied the memory of her brother to an act that was antithetical to
whom she was. Herron testified that if the state really cared about relatives
of victims, then money should be spent on grief counseling, funeral
expenses, loss of income, and other resources that will actually help them
heal.
Lorrain Taylor’s twin boys were gunned down in Oakland. She knows that
her sons would not want any other mothers to feel the pain that she felt by
imposing the death penalty on the perpetrators. She feels that revenge is
not justice.

These individuals mirror the sentiment of Coretta Scott King, widow of Dr.
Martin Luther King, Jr.: “As one whose husband and mother-in-law have died
victims of murder assassination, I stand firmly and unequivocally opposed to the
death penalty for those convicted of capital offenses. An evil deed is not redeemed
by an evil deed of retaliation. Justice is never advanced in the taking of a human
life. Morality is never upheld by a legalized murder.” 3
Closing
Why consider the repeal of the death penalty? No government action taken
against an individual is more serious than the imposition of the death penalty.
Nothing is more severe. Nothing is more final. Our position on the death penalty
says much about us as a people.
After full consideration of the information that has been brought to the
attention of the Commission, we are compelled to conclude that the death penalty
should be repealed in California. Its process and administration are inherently
flawed. Its costs are too high.
3

See Archbishop O’Malley: Death Penalty, THE PILOT, May 7, 2004, at
http://www.rcab.org/Pilot/2004/ps040507/OMalley.html

7

SEPARATE STATEMEMNT OF COMMISSIONERS JON STREETER, 1
KATHLEEN (COOKIE) RIDOLFI, MICHAEL HERSEK, AND MICHAEL
LAURENCE ACCOMPANYING REPORT AND RECOMMENDATIONS
ON THE ADMINISTRATION OF THE DEATH PENALTY IN CALIFONIA
June 30, 2008

I.

INTRODUCTION

We write separately to address alternatives to this Commission’s recommendations for death
penalty reform. Although the Commission’s Report is complex and lengthy, it documents one
simple reality. The death penalty as it is currently structured in California is vastly overbroad
and cannot be sustained in its present form at a price that anyone would find even remotely
reasonable. To any fair-minded reader, what follows is unavoidable: Our state’s death penalty
law must be either downsized or eliminated.
No member of the Commission disputed the death penalty’s massive financial burden on
taxpayers. Some, however, declined to address what should be done if the Commission’s
recommendations are not adopted. That is why the Report takes a neutral stance on the issue of
alternatives. Commissioner Totten’s dissent contends that the views of death penalty supporters
were ignored in our deliberations, but our collective silence on the issue of alternatives evidences
a respectful accommodation of those Commissioners who did not wish to appear to say anything
that might somehow undermine the death penalty as it currently exists. Beyond that, we did not
consider whether any Commissioner’s views were “pro-death penalty“ or “anti-death penalty.”
We looked solely to the fairness and function of our capital punishment system and what it will
take to fix the many flaws that we found.
Given our charge, we feel duty bound to comment on what should be done if our reform
recommendations are not adopted. Clearly, abolition of the death penalty is one option. The time
may be right to put that issue to a statewide vote. Although current polls show continuing public
support for the death penalty, whether those polls truly reflect what the voters would choose after
being fully informed of the death penalty’s costs is open to question. Every judge, every
prosecutor, every witness who testified before the Commission gave the same answer to the
question of cost; it will take tens of millions of additional taxpayer dollars to create a fair and
functional capital punishment system. The harsh but incontrovertible reality that we must spend
far more just to attain an acceptable level of fundamental fairness is bound to have a profound
impact on voters. What we now know about these extraordinary costs fundamentally alters the
terms of the public debate and may alone justify returning the death penalty to the ballot by
legislative referendum for a fully informed up-or-down vote.
1

Commissioner Streeter, the Vice Chairman of the Commission, is the principal author of this
Statement.
-1-

420304.01

The more modest alternative, and the more pragmatic approach, is a ballot referendum designed
to narrow the scope of the death penalty. In describing various approaches to narrowing, the
Commission’s Report does not, in our view, sufficiently emphasize how much the death penalty
needs to be cut back to address its mounting costs. To bring about meaningful reform, any
narrowing proposal must be designed to reduce the universe of capital-eligible first-degree
homicides from 87% to something less than 10%. Only by reducing the sheer volume of cases in
the system can we address the root cause of the dysfunction that Chief Justice George described
to us. Focusing on the front end by limiting the number of cases eligible for capital charging is
crucial. We must be explicit about this goal. Anything less will amount to nothing more than
rearranging the deck chairs on the Titanic.
If the recommendations of this Commission are not adopted and if the death penalty is not
abolished or narrowed, another option, in theory, is to do nothing. We could just continue to
muddle along with our current broken system. That is not a viable option, in our view. To
continue spending massive amounts of money at current levels each year only to see the backlog
of cases in the system continue to grow larger, rendering the death penalty system increasingly
ineffective and increasing prone to the ultimate risk – the execution of innocent people – is
impossible to justify. Given the many other critical budget priorities in this State, the fact that we
spend well over a hundred million dollars a year to pay for a dysfunctional death penalty system
will come as a surprise to voters; the notion of doubling that spend rate to repair it is likely to be
taken as an outrage. Something must be done. Set forth are what we see as the only reasonable
options.

II.

ABOLITION OF THE DEATH PENALTY

In broad terms, we embrace the conclusions reached by Commissioner Hing in his Separate
Statement calling for abolition of the death penalty. Most basically, we believe that the risk of
wrongful conviction and punishment -- a problem that plagues our criminal justice system to a
degree that is little known to most citizens -- simply cannot be tolerated when life is at stake.
Commissioner Hing justifies his call for abolition on broader grounds. He is in good company.
Many of the reasons he cites may be found in the published opinions of six Justices of the United
States Supreme Court who have opined on different occasions since 1970 that the death penalty
is unconstitutional, either facially or as applied. 2 Commissioner Hing is not the first to cite the
2

See Baze v. Rees, ___ U.S. ___, 2008 LEXIS 3476 (2008) (Stevens, J., concurring in the
judgment) (death penalty unconstitutional in all circumstances); Callins v. Collins, 510 U.S.
1141 (1994) (Blackmun, J. dissenting from denial of certiorari) (death penalty unconstitutional in
all circumstances); Furman v. Georgia, 408 U.S. 238 (1972) (separate opinions of Brennan, J.
and Marshall, J.) (death penalty unconstitutional in all circumstances); id. (separate opinions of
Douglas, J., White, J. and Stewart, J.) (death penalty statutes of Georgia and Texas
unconstitutional as applied). One other Justice expressed this view following retirement. See
John C. Jeffries, Lewis Powell: A Biography, at 451 (1994) (reporting Justice Powell’s view that
the one vote he regretted casting was his tie-breaking vote to sustain the death penalty in
McCleskey v. Kemp, 481 U.S. 279 (1986)). See also Brian Bakst, “O'Connor Questions Death
-2420304.01

exorbitant costs of the death penalty, 3 the statistics suggesting racial discrimination, 4 the
disproportionate impact of the death penalty on the poor and the disadvantaged, 5 the biasing
effect of death qualification, 6 and most importantly, the heightened risk of error in capital cases
coupled with the irrevocability of the penalty. 7
The concerns that Commission Hing so eloquently articulates call into question whether our
criminal justice system -- as fine as it is --is ever capable of making life-or-death decisions with
the fairness, objectivity, and reliability that we expect of it. The Supreme Court Justices who
have cited these same concerns all served as the ultimate custodians of process integrity and
fairness for court systems across the country; they sat atop our country’s judicial apex, and for
them to question whether the courts they oversaw are up to the task in death cases is very
significant. Indeed, it is striking that several Justices changed their views with experience and
after long reflection. At least three of the Justices who are now on record opposing the death
penalty began as death penalty supporters on the Court, ultimately concluding, after decades of
attempting to address its many flaws, that capital punishment is unworkable in practice. 8
In California, we have reached a similar tipping point. Based on the extensive record compiled
by this Commission, one can fairly conclude, as Justice Blackmun once put it explaining his own
views, that the “death penalty experiment has failed.” 9 We find this to be true in California.
Penalty,” Associated Press (July 2, 2001) (quoting a speech by Justice O’Connor in which she
stated “[i]f statistics are any indication, the system may well be allowing some innocent
defendants to be executed").
3

See Baze v. Rees, 2008 LEXIS at ***83 (Stevens, J., concurring in the judgment) (“The time
for a dispassionate, impartial comparison of the enormous costs that death penalty litigation
imposes on society with the benefits that it produces has surely come.”).
4

See Callins v. Collins, 510 U.S. at 1153 (“Even under the most sophisticated death penalty
statutes, race continues to play a major role in determining who shall live and who shall die.”)
(Blackmun, J. dissenting from the denial of certiorari); see also McCleskey v. Kemp, 481 U.S.
279 (1986) (Brennan, dissenting).
5

See Furman v. Georgia, 408 U.S. at 369 (“It is…evident that the burden of capital punishment
falls upon the poor, the ignorant, and the underprivileged members of society. It is the poor, and
the members of minority groups, who are least able to voice their complaints against capital
punishment.”) (separate op. of Marshall, J.).
6

See Baze v. Rees, 2008 LEXIS at ***88 (“Of special concern to me are rules that deprive a
defendant of a trial by jurors representing a fair cross-section of the community.”) (Stevens,
concurring in the judgment).
7

See Furman v. Georgia, 408 U.S. at 288 (“The unusual severity of death is manifested most
clearly in its finality and enormity.”) (Douglas, J. concurring in the judgment).
8

See Baze v. Rees, 2008 LEXIS at ***63 (Stevens, J. concurring in the judgment); Callins v.
Collins, 510 U.S. at 1153 (Blackmun, dissenting from the denial of certiorari); John C. Jeffries,
Lewis Powell: A Biography, at 451 (1994).

9

See Callins v. Collins, 510 U.S. at 1130 (Blackmun, J. dissenting from the denial of certiorari).
-3-

420304.01

III.

NARROWING OF THE DEATH PENALTY

Although outright abolition would be the cleanest, most definitive approach to death penalty
reform if our recommendations are not adopted, we recognize that, ultimately, a political
judgment must be made about whether the time is right to seek a fresh electoral choice on
whether California ought to have a death penalty. The new information generated by our Report
about the dysfunctional state of the death penalty, the massive costs of maintaining it, and the
even more massive costs of fixing it, will pave the way to a changed public debate on that topic.
Whether the time is right to seek a statewide vote on abolition is debatable. A more modest and
pragmatic approach would be to propose a modification of the death penalty that narrows its
scope.
A.

The Problem of Overbreadth

One of the most significant findings in our Report is that the death penalty encompasses 87% of
all first degree murders committed in this state. Commissioner Totten’s dissent takes issue with
that finding, but the thrust of his criticism is that only a tiny percentage of capital-eligible crimes
are charged in most counties. Whether that is the case or not, it begs the question. The gross
numbers speak for themselves. There are now 670 condemned inmates on death row. On
average, we had 20 new death judgments entering the appellate system annually in the last eight
years. We have an accumulated backlog in the Supreme Court of 180 fully briefs direct appeals
and habeas cases awaiting decision, and the Court cannot process more than 30 – 40 of these
cases a year.
The sheer volume, statewide, is overwhelming the appellate system. Against this backdrop, local
prosecutors may have the perception that they are charging death cases rarely and infrequently,
but on a combined basis the rate at which they are charging these cases is clogging the Supreme
Court’s docket and creating delays that were unimaginable when the death penalty was adopted.
To make matters worse, there is no statewide fiscal accountability to capital charging. District
Attorneys often point out that they are accountable at the ballot box, and if their capital charging
policies raise questions, they will be held accountable at election time. But the reality is that,
with each capital charging decision, local prosecutors are forcing taxpayers across the state to
subsidize their cases, often for many years into the future after the cases pass into the hands of
the Attorney General at the appellate and collateral review stages. As a result, the vast majority
of taxpayers who are actually footing the bill have no say in what these prosecutors are deciding
when they make “local” decisions to initiate capital litigation.
B.

Carrying Out Narrowing

To address the problem of overbreadth, two basic approaches can be taken: (1) We can add more
lawyers and other resources in an effort to beef up the overall litigation capacity of the death
penalty system (which is the approach reflected in most of our recommendations), or (2) we can
narrow the scope of the death penalty and try to reduce the number of cases that may be charged
capitally.
If the Commission’s recommendations are not adopted, and if policymakers decline to spend the
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amounts needed to repair the dysfunction in the system, there will remain only one possible way
to address the problem of excessive capital case volume short of outright abolition -- and that is
to narrow capital case eligibility. 10 Suffice it to say that we support the idea of reducing the
number of special circumstances to five in accordance with the Constitution Project’s Mandatory
Justice factors. We are concerned, however, that reducing the number of special circumstances in
that fashion will be insufficient to effect a material decrease in the number of capital-eligible
cases. To achieve meaningful reform, it is important to constrain aggressively the number of
capital cases entering the system on the front end. The goal ought to be that less than 10% of first
degree murders are eligible for the death penalty, rather than the current 87%. And whatever new
guidelines are adopted, we should be explicit about our objective. The rules governing death
penalty eligibility must be designed to reduce dramatically the number of capital cases entering
the system. Tinkering around the edges will not do.
The proposal made by Commissioner Streeter to supplement the Mandatory Justice factors with
a statewide “citizen impact” requirement may be one way to achieve the kind of dramatic
reduction that we envision. 11 The dissent by Commission Totten expresses skepticism about this
proposal on the grounds that it purportedly has “no precedent in law” and would be “totally
unworkable.” In fact, what has “no precedent in law” is our California death penalty system as it
is currently administered. No other state has as many special circumstances as we do in
California; no other state sentences to death as many people as we do in California; no other state
and probably no other country in the world has anything close to the number of inmates we have
on death row; no other state has the combined appellate and post-conviction delays that we do in
California; and no other state spends the amounts of money that we do in California, to such little
effect. To deal with this unusual state of affairs, unusual measures will be required.
The idea of imposing a statewide “citizen impact” requirement is, in any event, in accord with
what courts do all the time in the context of change of venue motions, where the problem of
media saturation is frequently litigated, without difficulty. The same or similar forensic
techniques for marshalling proof in change of venue motions (e.g. use of demographic surveys)
could certainly be used. In fact, in most cases where change of venue motions are granted, the
level of media saturation that is proved would probably justify the kind of statewide “citizen
impact” requirement that Commissioner Streeter has proposed, since those cases often involve
the kinds of crimes that are notorious for the widespread fear and anxiety that they engender.
The bottom line is that some guidelines must be put in place to create statewide accountability,
and the “citizen impact” concept is as good a way as any. It is understandable that a county
prosecutor would view the proposed “citizen impact” requirement as “totally unworkable.” This
new hurdle would constrain his power to bring capital charges for crimes of great local concern.
But that is the whole point of it. We must move away from a system in which local prosecutors
are free to make capital charging decisions based on considerations of purely local concern. The
grisly crimes such as those described by Commissioner Totten’s dissent are unimaginably

10

We will not reiterate here the mechanics by which the death penalty law may be narrowed.
That topic is covered thoroughly in the body of our Report.

11

See Commission Report at 67 – 68.
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horrible. But every first degree murder, by definition, involves some sort of heinous outrage.
Hundreds of these cases are charged statewide every year. The combined effect of making 87%
of them automatically eligible for the death penalty in all 58 counties without some mechanism
to force consideration of broader statewide interests, naturally, is going to result in runaway
costs. Which is exactly what has happened.
C.

Geographic Disparity and Racial Discrimination

Although significantly reducing the sheer number of capital cases coming into the criminal
justice system every year is, by itself, a compelling justification for narrowing death penalty
eligibility, we find one other consideration significant. The overbreadth of the death penalty law
is closely related to issues of geographic disparity and racial discrimination. Addressing
overbreadth in an effective way will help put to rest concerns in these related areas as well.
The Commission’s Report covers geographic variation thoroughly. We will make only brief
additional comment. The scope of the current law permits broad variation in capital charging
among the individual counties. Although some degree of unpredictability and randomness may
be perfectly acceptable as a general matter in a criminal justice system that consists of 58
separate counties, it is deeply troubling in death penalty administration. 12 Direct oversight from
the state level may not be feasible given the decentralized structure of state and county
governments, but some indirect means of enforcing uniformity is desirable. We commented
above on one possible mechanism. Adopting specific measures designed to ensure financial
accountability -- through one of the many fiscal tools the state has at its disposal vis-à-vis county
governments -- might be another approach. We do not suggest shifting the costs of these cases
entirely to the counties. But some means can surely be devised by which the treasuries of
counties who use the death penalty most frequently will feel the budgetary effects of their capital
charging decisions.
The issue of racial discrimination is an entirely different matter, and as is so often the case, it is
rife with misunderstanding. It may be, as Commissioner Totten suggests in his dissent, that only
a small fraction of the 87% of first degree murders meeting the criteria for capital eligibility is
actually charged capitally, but what that necessarily means is that broad discretion is being used
to screen out hundreds of individuals from the death penalty each year. Each of those decisions is
momentous for the people involved, perhaps more momentous than any other decision that
prosecutors make. In any situation where there is such vast discretion and the stakes are so high
for the affected individuals, special care must be taken to ensure that every aspect of the
decision-making process is not only carried out in manner that is objective and even-handed, but
that it carries that appearance of fair and even-handed treatment.
Commissioner Totten’s dissent suggests that some members of the Commission came to their
task with the pre-existing belief that capital charging is infected with racial discrimination. That

12

Cf. Furman v. Georgia, 408 U.S. at 288 (death penalty imposed so “wantonishly and
freakishly” is cruel and unusual for the same reason that “being hit by lightning” is cruel and
unusual) (Stewart, J. concurring in the judgment).
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is an inaccurate and unfortunate charge. For our part, we do not doubt in the least the good faith
and integrity shown by the prosecutors on this Commission, as well as by those who testified
before it; we believe that their views are generally reflective of views that are held widely by
prosecutors in this state; and we accept that, save for rare situations in which misconduct
surfaces and a prosecutor violates his or her oath, prosecutors take no account of race when they
decide who merits the death penalty. But nevertheless, there are troubling indications in the
aggregate statistics presented by professors Pierce and Radelet that this Commission reviewed.
Those statistics clearly suggest that race plays a part in the selection of who must face the death
penalty.
There may be many innocent explanations for any particular type of differential treatment, but it
is critical not to be dismissive of the concerns raised here. In communities of color, confidence in
prosecuting agencies can easily erode when members of those communities come to suspect
improper racial motivations by law enforcement; that, in turn, can hinder the effectiveness of
these very agencies in serving all of their constituents. We do not take the Pierce and Radelet
study as proof of discrimination on the part of any individual decision maker, but the empirical
methods used by these two expert statisticians are reliable enough to raise questions that require
serious further attention. 13 In fact, the study raises exactly the kind of questions, whether
ultimately proved to be legitimate or not, that can destroy the trust and confidence that members
of communities of color are entitled to have in prosecuting agencies. For this reason, we are
disappointed that we did not see a greater receptiveness to the need for transparency in the
capital charging process among the prosecution and law enforcement members of this
Commission. In no way, however, does that disappointment amount to some kind of
predisposition by any member of this Commission to assume improper racial motivations in
capital charging.

IV.

DOING NOTHING

Chief Justice George did not elaborate on what he meant when he testified that the continued
growth in the capital case backlog, if unchecked, will at some point cause the system to
“collapse[] of its own weight.” But if the delays in our system continue to grow, it is not hard to
envision, in legal terms, what could happen: The wholesale invalidation of capital punishment in
California. It happened once before, following the United States Supreme Court’s decision in
Furman v Georgia in 1972 when the death penalty statutes of Georgia and Texas were declared

13

As explained by Justice Brennan’s dissent in McCleskey v. Kemp, 481 U.S. at 327, where a
study very similar to that done by Pierce and Radelet was presented:
[The] statistics have particular force because most of them are the product of
sophisticated multiple-regression analysis. Such analysis is designed precisely to
identify patterns in the aggregate, even though we may not be able to reconstitute with
certainty any individual decision that goes to make up that pattern…[A] a multipleregression analysis need not include every conceivable variable to establish a party's case,
as long as it includes those variables that account for the major factors that are likely to
influence decisions.
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unconstitutional in its application under the cruel and unusual punishment clause of the Eighth
Amendment.
The key votes in Furman were by Justices William O. Douglas, Potter Stewart and Byron White,
each of whom voted to strike down capital punishment in Georgia and Texas as applied. In
effect, these Justices hit the constitutional equivalent of a computer “re-set” button, invalidating
all convictions under the challenged statutes – and under similar statutes across the country,
including California – but allowing state legislators to write new death penalty legislation
designed to cure the defects that they found. The practical result was that death rows in all of
these states were cleared out; formerly condemned inmates received life sentences; and whatever
backlogs existed on the death rows of these states prior to Furman suddenly disappeared.
Justice White’s rationale for finding the Georgia and Texas death penalty statutes
unconstitutional has particular resonance in the context of the situation we face now in
California. As he explained it,
[T]he [death] penalty has not been considered cruel and unusual punishment in the
constitutional sense because it was thought justified by the social ends it was deemed to
serve. At the moment that it ceases realistically to further these purposes, however, the
emerging question is whether its imposition in such circumstances would violate the Eighth
Amendment. It is my view that it would, for 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.
It is also my judgment that this point has been reached with respect to capital punishment as
it is presently administered under the statutes involved in these cases. Concededly, it is
difficult to prove as a general proposition that capital punishment, however administered,
more effectively serves the ends of the criminal law than does imprisonment. But however
that may be, I cannot avoid the conclusion that as the statutes before us are now
administered, the penalty is so infrequently imposed that the threat of execution is too
attenuated to be of substantial service to criminal justice.
Furman v. Georgia, 408 U.S. at 312 (emphasis added) (White, J., concurring in the judgment).
Given the lengthy and growing delays documented by the Commission in its Report, the
rationale applied by Justice White in his Furman opinion ought to be kept in mind. Even if we
were to accept as true the theoretical arguments that capital punishment can deter crime and
serve as a force for community retribution, our Report casts serious doubt on whether the death
penalty in this State carries out either objective, effectively or at all. Whatever the academics say,
no one can credibly suggest that the death penalty deters anything or expresses any clear sense of
community outrage when the time from conviction to execution averages over two decades.
Under these circumstances, the death penalty, as it is currently administered in California, is now
at or near the point where it has effectively ceased to carry out the purposes for which it was

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designed. 14
A declaration that California’s death penalty is unconstitutional as applied would render invalid
the sentences of all of those who are currently on death row, resulting in the waste of what is
now well over a billion dollars in taxpayer dollars that has so far been spent litigating these
cases, and forcing either de facto abolition or adoption of a new, narrower death penalty law. In
order to avoid this train-wreck scenario, something must be done to repair the death penalty
system. Doing nothing is not a viable option. We do not predict a wholesale constitutional attack
on California’s death penalty system or comment on the correctness of any such attack, if it were
ever made. We simply raise the question in order to illustrate that the consequences of leaving
things as they are could conceivably lead to an unplanned result that may be as unwelcome in
some quarters as it is avoidable. The flipside of this point is equally valid. For those who may
view wholesale invalidation as a welcome result, the uncertainty that successful legal resort
could eventually be had in the courts is reason enough to accept something less than might
justifiably be demanded, purely in the interest of ensuring that something meaningful is done.

V.

CONCLUSION

We believe that the alternative of narrowing the death penalty has great merit. This approach to
death penalty reform is attractive to us because it is the most practical and perhaps the most
achievable alternative.
The death penalty is obviously a controversial topic, bound to stir up strong views on both sides
of any policy discussion. Certainly, in the course of our deliberations we had many spirited
discussions about the best approach to death penalty reform. Forceful and respectful contentions
were advanced from many perspectives. The discussions involved a degree of collective
problem-solving among highly skilled and experienced professionals that was truly inspiring. If
the Commission’s recommendations are not adopted, we would like to see the spirit of
accommodation and mutual respect that characterized our deliberations continued. That is a
significant reason why we propose narrowing the death penalty. Even the most basic and
fundamental policy choices to be made here need not involve a zero sum game in which one
point of view “wins” and one point of view “loses.”
For us, narrowing is a second-best policy solution, but it is one that the evidence before the
Commission fully supports. The Commissioners who took a pro-death penalty stance on the
Commission have genuine and strongly-held convictions about capital punishment. The same
may be said for Commissioners who question the wisdom of the death penalty. Undoubtedly,
both views are broadly reflective of the opinions of millions of California voters. We believe that
narrowing the death penalty represents an effort to reconcile these contending points of view, at
least at some level. Not everyone on either side would be satisfied fully with a substantially

14

See Gomez v. Fierro, 519 U.S. 918 (1996) (delays in implementation of the death penalty can
be so substantial as to eviscerate the only justification under the Eighth Amendment for that kind
of punishment) (Stevens, J., dissenting from the granting of certiorari) ; see also Lackey v. Texas,
514 U.S. 1045 (1995) (same) (Stevens, J., respecting the denial of certiorari).
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narrowed death penalty. Far from it. For many on both sides, the issue is deeply infused with
moral considerations and cannot be compromised. But the Commission as a whole decided early
on that it would not attempt to weigh the morality of the death penalty. Rather, the Commission
decided that it would seek practical solutions. In our view, the option of narrowing the death
penalty is just such a solution.

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