Proposition to end death penalty an ill-conceived measure

Time and again, Californians have reaffirmed their strong support for the death penalty. Whenever voters here have had an opportunity to weigh in on this issue - beginning in 1978 with passage of the first initiative to reinstate the practice - they have chosen overwhelmingly not only to retain, but to expand, the institution of capital punishment. Even the state Legislature (by no means known for its law-and-order mien) has pointedly avoided enacting obstructionist legislation.

So perhaps it should come as little surprise that, after being unable to persuade the public of the underlying merits of their cause, opponents of capital punishment are now trying a new and most intellectually dishonest approach to achieve their goals. Enter Proposition 34, misleadingly referred to by its sponsors as the "SAFE" initiative. Under the guise of purportedly saving taxpayers millions of dollars, Proposition 34 would repeal capital punishment in California and retroactively convert all current death sentences to life imprisonment.

It must be noted, of course, that there are indeed problems with how California administers the death penalty. But the most serious one involves the shameless manipulation of the criminal justice system. The history of capital punishment in California has been marked by an ongoing and amazingly successful crusade by a small cadre of its detractors to prevent executions from ever occurring. In this, they have been aided at various times by state and federal judges whose personal opposition to capital punishment has manifested itself in decisions grasping at any available pretext to reverse properly rendered death verdicts.

Inmates sentenced to death are entitled to one full round of appeals in both state and federal court. This enhanced level of due process can span many years and may seem tedious, but it is justified where the state seeks to impose the ultimate sanction. Troubles arise not from the basic structure of the appellate process itself, but when it is improperly gamed by those trying to block the state from carrying out lawfully imposed death sentences.

California's experience is quite instructive on this point. Since capital punishment was reinstituted 34 years ago, nearly 1,000 inmates have been sentenced to death here. Of that number, only 13 have been executed (two of whom waived their appeals and asked to be put to death). Another 85 inmates have died of other causes while being warehoused in prison, while close to double that number have had their death sentences overturned on appeal. More than 700 inmates remain on death row today at various stages of appellate review.

Once upon a time, the U.S. Supreme Court actually took some corrective action in this area. On the eve of California's first modern execution in 1992, the high court swiftly vacated a series of four groundless stays of execution issued by activist federal judges in the middle of the night, concluding: "There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process." Gomez v. U.S. District Court for the Northern District of California, No. A-767 (April 21, 1992). Then, for the first and only time in American history, the Supreme Court summarily stripped the entire lower federal courts of further jurisdiction with respect to that impending execution.

Puzzlingly, the Supreme Court has largely stepped away from monitoring California's capital cases since then, despite the fact that lower federal courts have continued to engage in abusive tactics. No one has been executed in almost seven years, for example, as federal judges have tried to impose some kind of novel legal requirement that our execution protocol be "painless" (which is rather difficult to accomplish when ending a human life). Against this backdrop, it is readily understandable why it now takes a capital case over 20 years to wind its way through the state and federal courts here, about twice as long as in other states.

Which brings us back to Proposition 34, whose most prominent advocates are the same individuals who have sought to derail our criminal justice system during the past four decades. Having run up the costs of implementing the death penalty, they now disingenuously complain about the tab for which they are directly responsible. Such malfeasance should never be rewarded by capitulation.

There are many good reasons to retain the death penalty as a sentencing option in California for the worst of the worst. First and foremost, there are some crimes for which no other sentence is truly warranted. Seeking justice for victims of the most heinous offenses is of paramount importance, whether they be the persons whose lives were unfairly terminated, family members and friends left behind to suffer, or society in general. Retribution, at its core, is a positive expression of our society's strongest values in placing a premium on innocent life.

There is also the matter of deterrence. If carried out in a reasonably swift and certain manner (as is now done in many other states), the death penalty does have a deterrent effect. At the very least, those executed will definitely be prevented from engaging in any form of recidivism.

Even the argument that elimination of capital punishment will somehow result in a substantial financial windfall to the state - the ruse offered by death penalty opponents to justify Proposition 34 - rests on faulty premises. The hard costs associated with prosecuting murder cases, litigating appeals and housing convicted inmates for the rest of their lives - none of which would disappear with passage of the initiative - are enormous. On the other hand, the state would realize measurable savings were executions to be conducted in a timely fashion.

Finally, there are clearly better ways to "fix" the system. Those whose backgrounds evidence a predisposition to legislate from the bench or who exude a transparent commitment to impartiality that looks to evaporate the moment they are approved for lifetime judicial positions must be neither appointed nor confirmed to those positions. And the U.S. Supreme Court should take a stronger and more active role in quelling the often recalcitrant behavior of lower federal courts in California.

Proposition 34 is a cynical and deceptive political move to repeal capital punishment by falsely claiming to enhance public safety, brought to you by the same people who have dedicated their careers to undermining justice. On Nov. 6, Californians should soundly reject this ill-conceived measure.