What Will Become Of Our Death Penalty System?

By all accounts Justice Tani Cantil-Sakauye will be the next Chief Justice of the state Supreme Court, but according to recent press accounts, she has candidly acknowledged that she has "much to learn" about "the administration of the death penalty" and was "unaware of a widely publicized 2008 state commission report that suggested possible reforms" in capital punishment.

In June 2008, the independent, nonpartisan California Commission on the Fair Administration of Justice, following a comprehensive four-year study, found California's death penalty system is "dysfunctional" and "close to collapse."

John K. Van de Kamp chaired the 22-member commission, which included prosecutors, public defenders, law enforcement officials, academics and others. It concluded that 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 violations are succeeding in federal courts at a very high rate."

The commission found that federal courts in 54 habeas corpus challenges to California death penalty judgments granted relief in the form of a new guilt trial or a new penalty hearing in 38 of the cases, or an alarming 70 percent.

Chief Justice Ronald George, whom Justice Cantil-Sakauye would replace, 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."

The commission pointed out what abolitionists have been saying for years that 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, increase the emotional trauma experienced by murder victims' families, and delay the resolution of meritorious capital appeals."

Supporters of capital punishment have dismissed criticisms as biased, ill-informed and lacking in evidence. But the commission's report was based on three public hearings, in Sacramento, Los Angeles and Santa Clara, where 72 witnesses testified, including 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. The commission also conducted independent research and received 66 written submissions.

The commission found that "by conservative estimates, well over $100 million" is spent on capital punishment annually. "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."

The commission candidly acknowledged that it could not 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." Since 1979, six defendants sentenced to death in California, whose convictions were reversed and remanded, were subsequently acquitted or had their murder charges dismissed for lack of evidence.

Two of the most dangerous flaws in the criminal justice system are erroneous eyewitness identifications (which the commission found have been identified as a factor nationwide in 80 percent of exonerations), and false confessions (a factor in 15 percent of exonerations).

Ten of the commissioners took the unprecedented step of filing two supplemental statements calling for an outright repeal of the death penalty based on various factors including its cost, the risk of wrongful executions, the disproportionate impact on communities of color, geographic disparities, disadvantages facing poor defendants, the unjust bias triggered by allowing only "death qualified" jurors, how the death penalty forecloses the possibility of healing and redemption and the example set by other civilized societies that have abolished the death penalty.

As Justice Cantil-Sakauye prepares for this momentous elevation, opponents of the death penalty hope she will seriously take into account the commission's conclusions on one of the most important issues she will be called on to decide as the new Chief Justice.

Stephen Rohde, a constitutional lawyer and author, is a vice president of Death Penalty Focus and has represented two inmates on California's death row.