CA Death Row Conditions Preferable to Those in Maximum Security

The LA Times reports that death row inmates in California have better living conditions and more privileges that those doing life in the state's maximum security prisons. Law Prof. Doug Berman of Sentencing Law and Policy provides his take. Mine is somewhat different.

The problem with the LA Times article is that it focuses on why inmates prefer death row, one reason being the better conditions and another being the extraordinary time they will spend there awaiting execution, without reporting on the principal reason for California's excessive delay in carrying out executions. It's not the number of appeals the prisoners get. It's that the inmates are indigent and require appointed counsel, and there aren't enough qualified lawyers willing to take the cases, which means they spend years on death row before even beginning their appeals. [More...]

One reason for the lack of counsel is that the state pays far below market rate for their services. Of the 670 prisoners on death row, only 1, Scott Peterson, has retained counsel. See the 2008 Report by the California Commission on the Fair Administration of Justice which was tasked by the Legislature to review and analyze the state's administration of the death penalty. (The commission included prosecutors, defense counsel, law enforcement and judges.)

The report cites a 2007 study on the reasons for delay by Senior Judge Arthur Alarcon of the U.S. Court of Appeals for the Ninth Circuit, which finds it takes 3 to 5 years for a defendant sentenced to death to be appointed counsel for his direct appeal. It takes 8 to 10 years after being sentenced for a habeas attorney to be appointed. In 2008, there were 291 death row inmates who hadn't yet been appointed habeas counsel and 79 without counsel for their direct appeal.

The California Supreme Court is so overburdened that it takes 2 to 2.5 years after all the briefs are filed to hold oral argument.

For prisoners sentenced since 1978 whose automatic appeals have been decided, the average delay between the judgment of death and the filing of the California Supreme Court’s opinion was 8.1 years....The average delay between the appointment of counsel and the filing of the opening brief was 3.7 years. Due to the dearth of available counsel,however, no opening briefs have been filed for prisoners condemned after June 2000....The average delay between the judgment of death and oral argument before the California Supreme Court was 7.6 years.

Even those numbers are misleading, because they are an average over many years, and delays have gotten much worse in recent years.

For example, the average delay between the judgment of death and the final disposition of the automatic appeal for condemned prisoners convicted between 1978 and 1989 was 6.6 years. Death row inmates convicted between 1990 and 1996, however, have experienced an average delay of approximately 10.7 years between the judgment of death and the Supreme Court’s decision disposing of the automatic appeal. The California Supreme Court has issued only one opinion disposing of an automatic appeal of a condemned prisoner convicted after 1997.

California taxpayers are also the losers here. Judge Alcaron's study found:

It costs an average of $124,150 per year to house a death row inmate. This amount is $90,000 more per year than the cost of housing an inmate in the general population...On housing alone, California spends $57.5 million more per year on condemned prisoners than on the general prison population.

....As of 2005, the California Supreme Court spent “$11.8 million annually for court-appointed defense counsel....California Attorney General Bill Lockyer’s office spends $11 million annually in representing the state in death penalty appeals.

When does languishing on death row for decades become cruel and unusual punishment, in and of itself? The Supreme Court has not yet decided. But, in 2006, Justice Breyer wrote, in a dissent in Allen v. Ornoski:

Petitioner is 76 years old, blind, suffers from diabetes, is confined to a wheelchair, and has been on death row for 23 years. I believe that in the circumstances he raises a significant question as to whether his execution would constitute “cruel and unusual punishment.” I would grant the application for stay of execution.

Making indigent death row inmates wait so long for appointed counsel also runs afoul of the Sixth Amendment. Those with retained counsel don't face delays and indigent defendants are entitled to the same Sixth Amendment right to counsel as inmates who can afford to pay for their own counsel,

And what about the death row inmate who is found on appeal or in a habeas action to be wrongfully convicted? How does the state justify requiring them to spend 15 to 20 years on death row before the court arrives at the conclusion? The California Commission report found:

[F]ederal 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%.

If California is going to maintain its death penalty, these two (among many)recommendations by the Commission are a must:

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 responsibilities in death penalty representation.

...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)....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.

Interestingly to me, the report uses the federal death penalty case of Timothy McVeigh as an example:

The time that elapsed from the entry of the district court’s judgment to the affirmance of the conviction and sentence on direct appeal by the Tenth Circuit was one year and twenty-five days. The comparable average delay in California between the trial court’s judgment and the affirmance on direct appeal in 1998 by the California Supreme Court would have been 8 years and 310 days.

So while the LA Times and others mock California for providing death row inmates with better living conditions, the real headline should be the need to fix or abolish the state's death penalty. The two proposed solutions that make the most sense are either:

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.

The cost savings: The current system costs $137 million per year. Reforming it by implementing the recommendations, including better funded counsel, would be $$232.7 million per year. Reducing the number of cases by restricting special circumstances would lower the annual cost of the death penalty to $130 million per year. And replacing the death penalty with life without parole would reduce expenditures to $11.5 million.

The choice to cash-strapped California should be obvious: Eliminate the death penalty. The savings of between $100 million and $200 million per year could be so much better spent elsewhere.

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    Posts like this are the reason for coming here. (5.00 / 3) (#1)
    by 1980Ford on Wed Nov 11, 2009 at 06:13:02 PM EST
    Very informative. Thanks.

    your're welcome and (5.00 / 2) (#2)
    by Jeralyn on Wed Nov 11, 2009 at 06:21:35 PM EST
    comments like your's are why I write them!

    I thought (none / 0) (#3)
    by Watermark on Wed Nov 11, 2009 at 06:54:57 PM EST
    the LA Times came out against the death penalty?

    IMHO prison conditions are pretty horrible accross the board.  If the horrible conditions in death row are better than the conditions for normal prisoners, the answer isn't to make conditions even worse than they already are.