Eroding the Death Penalty

None of the 32 murderers sentenced to death in New York has been executed in the decade since the state reinstated capital punishment. Yet last week, the gnawing concerns of state lawmakers, including some who voted for the 1995 law, prompted them to effectively kill the death penalty for this year, and perhaps longer.

Many Californians, lawmakers as well as voters, share those concerns about fairness and fallibility. They worry as well about the inequalities that riddle the death penalty in a state as large and diverse as ours.

Death penalty foes predict that the de facto moratorium the New York state Assembly imposed will “ripple” to other states. California should be next.

This state has the nation’s largest death row, with 640 inmates. So large, in fact, that taxpayers pony up $114 million every year to house them at San Quentin, on top of the extra costs to prosecute them and provide for required appeals. The state’s condemned population is so large in part because voters and lawmakers have allowed prosecutors to seek death sentences in more circumstances than allowed in most other states.

That latitude has produced glaring disparities. Wealthy (and often white) defendants who can afford experienced lawyers end up at San Quentin less often than poor defendants (often Latino or African American) who are stuck with lawyers assigned by the county. Prosecutors in some conservative, rural counties more readily ask juries for death than those in many urban counties. In some counties, prosecutors haven’t tried a capital case in years.

The California Supreme Court reviews every death sentence to ensure the defendant got a fair trial. Because that appeals process routinely takes a decade or more, California has executed only 11 defendants since reinstating the death penalty in 1977.

The high court approves the overwhelming majority of death sentences, but in March it balked. A majority of justices overturned a 1991 death sentence in a Los Angeles case because the county prosecutor had convinced separate juries that two defendants each landed the fatal blow in a hatchet murder. That 14 years passed before the court rightly declared this case a travesty adds to voluminous evidence of the death penalty’s unfair and capricious application.

State lawmakers last year chartered a commission to examine capital punishment with an eye toward recommending reforms. That panel expects to begin its research and deliberations in the coming months. A moratorium similar to that in New York (and one adopted earlier in Illinois) should be among its first actions.