“When an individual is condemned to death in California, the sentence carries with it an implicit promise form the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.”
Written by, Cormac J. Carney (a Bush 43 appointee) United States District Court Justice on July 16, 2014.
California’s death penalty was attached to the Briggs family’s political hip when voters approved Dad’s 1978 initiative with a 70% vote. We worked diligently for this outcome over a two year period and election night was especially rewarding because we believed our new death penalty would lay over all of California protectively. Twenty nine years later my political life once again intersected with our death penalty. It was during my first year of my first term as an El Dorado County Supervisor when the fiscal monster we gave birth to in 78’ revealed itself by opening its mouth to take a huge bite out of our county budget at a time we were trying to keep from laying off real people.
In 2007 a re-trial of a 1981 conviction was ordered and as it played out in the courts I met the living victim who touched my soul with her dignity and poise. Then $1,050,000 was taken out of our General Fund to pay for the defense cost only, at a time the county was trimming hours off the libraries to save $10,000. This single trial exhausted over one third of our rainy day monies.
Many thoughts went through my mind. $1,050,000 for defense only. What was the cost of prosecution? Twenty six years later a re-trial? Why-how? Thus, I began to research the costs and effects of the Briggs Death Penalty over the next seven years and now am prepared to share some facts and figures.
Readers of “Budget WATCHDOGS” may be surprised to learn there isn’t any centralized government source possessing data on the death penalty. Even in El Dorado County there are four separate sets of books kept when a death penalty case is brought forward. The Chief Administrative Office handles the books for the Public Defender; the District Attorney uses QuickBooks to spend his budget; the Courts now operate under the state “Administrative Office of the Courts”; and the Sheriff handles custody and transportation within his budget.
Statewide, the Department of Correction and Rehabilitation keeps data on cost for prisoner custody and segregates only the number of prisoners on Death Row. The Office of the State Public Defender manages appeals through salaried staff or hiring of qualified death penalty attorneys. Then whichever state or federal court is hearing the case has its cost.
In 2013 the El Dorado County District Attorney filed a death penalty case stemming from a 1981 cold case and I took full advantage of this opportunity to follow the cost of this case from pre-trial through penalty phase. In all, the taxpayers of El Dorado County spent $2,700,000 to send a 62 year old man to Death Row. Two million seven hundred thousand dollars. Our county’s entire contingency fund is $3.4 million. So, if a rainy day occurred like in 2007/08 the county would have less than $700,000 to plug holes with. If you think this 62 year old man is safely tucked away on Death Row and this whole tragedy is over, read on.
In 2012 U.S. Court of Appeal for the Ninth Circuit Justice Arthur L. Alarcon along with Loyola Law Professor Paula Mitchell, J.D. published a comprehensive 223 page well researched study of the Briggs Death Penalty entitled:
“EXECUTING THE WILL OF THE VOTERS? A ROADMAP TO MEND OR END THE CALIFORNIA’S LEGISLATURE MULTI-BILLION DOLLAR DEATH PENALTY DEBACLE.”
Their study concluded post Briggs the State has spent over $4 billion on the death penalty or in excess of $187 million annually not including the trial cost borne by each county individually. The average General Population inmate costs approximately $49,000 annually for incarceration versus a Death Row inmate costing $125,000 annually.
Last year on July 16, 2014, U.S. District Court Judge Cormac J. Carney issued a 29 page order declaring California’s death penalty system unconstitutional. Judge Carney did a substantial amount of research on his own as well as incorporating Alarcon/Mitchell.
Carney’s order uses information available up to July 2014 (Alarcon/Mitchell uses data to 2012) and cites the following statistics:
I will try to wrap the lengthy research done by Alarcon/Mitchell and Carney into a quick fact sheet.
On the average of the last five years (2009 thru 2014) California juries have imposed the death penalty 15 times annually. However, prosecutors have about a 50% conviction rate meaning there are 30 Death Penalty trials occurring each year. Alarcon/Mitchell conservatively applied the cost of each trial at $1,000,000 in their $187,000,000 figure. Applying El Dorado’s 2013 cost of $2.7 million x 30 death penalty trials annually, then California counties are spending $51,000,000 to send 15 condemned to Death Row. When adding this number to Alarcon/Mitchells $187 million then California taxpayers are spending $238,000,000 annually to implement the Briggs Death Penalty where condemned men sit for an average of 22 years untouched as their appeals wend through the courts.
Post 1978 Briggs there have been 900 death sentences with 13 executions. Of the remainder 94 have died of causes other than execution, 39 were granted relief by federal courts and have not been resentenced leaving currently 7481 on Death Row.
As of June 2014 only 81 of the 511 death sentences (from 1978 to 1997) completed post-conviction review process. Of the 81: 32 were denied relief by both state and federal courts and sent to Death Row; 13 were executed; 17 are awaiting execution; and 2 died of natural causes before state acted to execute them. The other 49 or 60% of all inmates whose habeas claims have been evaluated by the federal courts were granted relief from their death sentences.
Once a jury orders the death sentence and the trial court imposes a death sentence the appeals process automatically engages. Here are the steps of the automatic appeals.
Step 1 Direct review by State Supreme Court. 3 to 5 years
On average condemned inmates wait 3 to 5 years until counsel is appointed. Carney says the pool of willing attorneys is there, but due to high standards of skill required, and the continued cuts by legislature and governor in the Public Defender’s budget underfunds the very budget needed to maintain a sufficient pool of death penalty attorneys creating this long waiting period for step 1.
Step 2 – Counsel appointed. 4 years
An average death penalty case contains more than 9,000 pages of trial records that must be fully understood by the attorney which on the average is an additional 4 years.
Step 3 – California Supreme Court review 2 to 3 years
California’s Supreme Court generally hears 20 to 25 death penalty cases per year. The average wait period is 2 to 3 years.
Steps 1 through 3 on the average takes between 11.7 and 13.7 years will have elapsed post sentencing and much of that time is waiting for counsel appointment and oral argument to be scheduled.
On the average post Briggs approximately 22.8 new death sentences are issued annually.
Steps 1 through 3 are habeas corpus petitions. As of 2008 Carney states there are 176 petitions pending, the elapsed time from filing to Supreme Court hearing is 49 months. Since 2008 68 habeas petitions were decided on an average of 47.8 months. And adding all the above the litigating a direct appeal and petition for state habeas before Ca Supreme Court 17 years will have elapsed post trial penalty phase.
Post Briggs only 81 inmates of more than 900 individuals sentenced to death have received a final determination of their federal habeas petitions. Less than half of the 81 have been denied relief at all levels and only 13 have actually been executed. Of the 17 that are currently awaiting execution each have been on Death Row for more than 25 years, 8 have been there for more than 30 years.
In summary it’s is nearly impossible for the average taxpayer to gather death penalty data. I had to exercise my position as Supervisor to retrieve information that should be public information to begin with while Alarcon/Mitchell 223 pages took years to compile their data. But when you overlay Alarcon/Mitchells plus Carneys 29 page ruling plus 18 pages of exhibits coupled with my numbers from the Nissensohn trial, taxpayers for once, get a decent look into the cost of the death penalty.
I was asked to write a piece without discussing the pros and cons of our Death Penalty and have abided. But I want to leave with a small editorial. Forgetting for a moment the billions of dollars spent, there stands a greater human cost borne by victims, their families, and just about anyone associated with prosecuting or defending a capital punishment case and to drag these cases on for decade’s cries for action. Finally, the last number I want to give you is 3.
Post Briggs, 3 condemned men have been exonerated.
1 – The exact number of death row inmate’s fluctuate – 748 inmates was correct at time of Justice Carneys order. In example: last year the condemned man of the 2007 re-trial costing El Dorado County $1,050,000, while on Death Row, died of natural causes.