A Shameful--and Expensive--Logjam at Death's Door : Capital Punishment: San Quentin's gas chamber has been unused since 1967, despite the pro-executionists. That human- rights victory must not be lost.

Ian Gray, with Moira Stanley, is the author of "A Punishment in Search of a Crime" for Amnesty International (Avon)

The queen had only one way of settling all differences great or small. "Off with his head," she said without even looking round.

--Lewis Carroll

California, with 213 people under sentence of death, has the third largest death-row population in the country. No one has been gassed since Aaron Mitchell on April 12, 1967.

This is an extraordinary phenomenon. For 17 of the 22 years since the Mitchell execution, the state's death-penalty law was constitutional. Every opinion poll showed the public overwhelmingly supporting death as just punishment for heinous murder.

Then why no gassings? Some history is in order.

From 1967 to 1972, California was a de facto non-executing state. In 1972, the California Supreme Court ruled in People vs. Anderson that the death penalty violated the state constitution's cruel-and-unusual-punishment clause. Also that year, the U.S. Supreme Court, in Furman vs. Georgia, struck down all death-penalty statutes across the country. But four years later, the nation's top court held that the death penalty was not intrinsically unconstitutional (Gregg vs. Georgia).

In 1977, the California Legislature passed a discretionary capital-punishment statute written by then-state Sen. George Deukmejian. Gov. Edmund G. Brown Jr.'s veto was overridden. The stage was set for two generations of death-penalty laws.

Eight years later, the pro-capital punishment lobby, long mindful that Chief Justice Rose Elizabeth Bird stood between it and executions, launched a statewide TV campaign using murder victims' relatives as the spokespersons. In the fall of 1986, state voters ousted Bird and two other justices, Joseph R. Grodin and Cruz Reynoso, who were perceived to be anti-death penalty. Gov. Deukmejian replaced them with justices more willing to let the punishments proceed and Malcom M. Lucas was appointed chief justice. By 1989, the Lucas court had reversed 29% of all death-penalty cases brought before it, compared with the Bird court's 87% reversal rate.

In all, then, 15 years of dogged legislating to produce workable death-penalty laws plus the use of every available ploy to assemble a "hanging court"--yet still not a single gassing.

There is no shortage of death sentences. Indeed, they are being handed out in record numbers nationwide. Coupled with the slow pace of executions, the rush of death verdicts has created a human logjam on death row. At the end of 1988, 2,182 persons faced execution in 37 states; only 11 were carried out. At that rate, it would take 200 years to exhaust the existing stock of death-row prisoners.

California's executioners would need 12 1/2 years to dispose of the state's death-row population even if they equalled the record rate set in 1935-36, when 17 persons were hanged. (Besides murder, kidnaping and rape were then punishable by death). But since the death-row population grows by 30 prisoners a year, by the end of that 12-year period, there would be nearly twice as many awaiting death as when the executions started.

The country and state would have to accept an execution policy unprecedented in democratic history to make the death penalty work. Short of that, capital punishment will remain a lottery, with the dice heavily loaded against the poor and minorities. But since the United States will never resume executions on a grand scale, I believe the whole shameful process should be abandoned.

The death penalty further clogs an already overtaxed legal system. The sheer number of capital-appeal cases weighs so heavily on the California Supreme Court, despite its rubber-stamp approach to them, that it has little time for other state business. Death-penalty cases bounce around the courts for years, gobbling up tax dollars. Jury selection in a capital case can increase trial cost by $200,000.

Indeed, the death penalty is a big fiscal drain on California. The most conservative estimate of the cost of a death-penalty sentence is $1.5 million; others go as high as $5 million. Many lawyers believe that the expense of maintaining San Quentin's death row since 1976 is in excess of half a billion dollars. By contrast, the tab for keeping a man in jail for his natural life is $600,000.

Cutting criminal-defense costs is certainly no way to save money. The $4.6 million price tag for the retrial of mass murderer Juan Corona should be a sobering reminder of how expensive incompetent counsel can be.

Yet the money saved by abolishing capital punishment will hardly satisfy relatives of victims. The prospect that families of victims and the community at large will have to endure a life of unrequited moral outrage is a powerful argument against abolition. But since only one murderer in 1,000 will ever be executed, the very existence of the death penalty ensures that the victim's relatives will always be denied "equal justice."

There is the other human flotsam in death-penalty cases, the always-forgotten and totally denigrated family of the executed man or woman. They are innocent victims, too, although guilt by association hangs heavily over them.

Execution of the innocent is frequent enough to justify ending the death penalty. "It is better that 10 guilty persons escape than one innocent suffer" was how Sir William Blackstone made the point in 1751. No one knows how many innocent persons have been executed since then. But Randal Adams in Texas, James Richardson in Florida and Ronald Monroe in Louisiana are innocent men who languished on death row for many years before they were recently released.

Perhaps the greatest misconception about the death penalty is that capital punishment makes us safer. The United States long ago abandoned mutilation, branding and the lash as punishments--all once thought significant deterrents to crime. Yet people intuitively cling to the one remaining and ultimate physical punishment in the hope that it will protect them. Truth be told, execution is no better deterrent to violent crime than protracted imprisonment, and never has been.

If Californians can resist the desire to copy the killer, that would be a great human-rights victory. For let there be no doubt: Capital punishment is a rights issue. It is condemned by all human-rights groups as well as by all mainstream religious leaders.

In a speech days before his assassination, Robert F. Kennedy said, "Whenever any American's life is taken by another unnecessarily, whether it is done in the name of the law or in defiance of the law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence--whenever we tear at the fabric of life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded."

California has not executed anyone in more than two decades. Let us remain on this human-rights high ground and refuse to seal someone inside a cylinder while dropping cyanide pellets into sulfuric acid.

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