Why Voters Are Inept Crime Fighters : Law: Once again, California’s death penalty is under a cloud, and at a time when judicial conservatives reign. What price flawed initiatives?

Richard Allen Davis, a twice-convicted parolee, was arraigned last Tuesday for the kidnap-murder of 12-year-old Polly Klaas. If convicted, he could face the death penalty.

But even if Davis is sentenced to death by a judge and jury, it is almost certain that at least a decade will pass before his final reckoning. In the interim, there is the distinct possibility that California’s death-penalty law will again be declared unconstitutional. In an era dominated, from top to bottom, by law-and-order judicial conservatives, how can this be?

Pro-death-penalty advocates have not had such an alignment of forces in their favor since the early 1950s. After 11 years of Republican governors in California, the trial bench is overwhelmingly populated by former prosecutors. Six of the seven justices on the state Supreme Court were appointed by Govs. George Deukmejian or Pete Wilson. The California Supreme Court now affirms 95% of all death judgments, roughly 25% more than first runner-up Texas.

With the retirement of U.S. Supreme Court Justices William J. Brennan and Thurgood Marshall, one would expect few legal barriers to daily executions.

Instead, a conservative-dominated U.S. Supreme Court is considering whether California’s death-penalty law is unconstitutional because its standards are so vague as to render a death verdict arbitrary. A real possibility exists that many of San Quentin’s 373 Death Row denizens might permanently miss their date with the gas chamber.

California’s constitutional problems with the death penalty were not created by pinko liberals in the Legislature or governmental “limp-wristed wimps.” Rather, to quote the immortal words of the comic-strip character Pogo: “We have met the enemy, and he is us.”

The state’s difficulties with the death penalty began with the voters’ passage of the “Briggs Initiative” in 1977, followed, in 1978, by passage of Proposition 8--the so-called Victims’ Bill of Rights.

Proposition 8 became a treasure trove for appellate lawyers because key chunks of its language bordered on being nonsensical. At the U.S. Supreme Court level, “Hey, we didn’t say it real good, but you guys know what we meant . . . “ is not a persuasive line of argument.

It was the poor draftsmanship of the initiative itself that has caused much of the enormous backlog in California’s death-penalty appeals. Moreover, Proposition 8 made it practically impossible for the Legislature to amend the law appropriately if the U.S. Supreme Court later questioned whether the state’s death-penalty scheme violated the Constitution.

The Eighth Amendment not only prohibits cruel and unusual punishment. It also forbids arbitrary and capricious decision-making on who lives and who dies, the standard that has called into question California’s death-penalty law.

The U.S. Supreme Court has required that the penalty be limited to those cases and defendants that are the worst of the worst. Put another way, in a country where murder is the lead story on local newscasts virtually every day, which of the murderers is so malevolent that the state must take their life?

A death-penalty trial is actually two separate trials: a guilt phase and a penalty phase. First, a jury must decide whether the defendant committed first-degree murder and whether the death-qualifying “special circumstances” are true. There are a large number of special circumstances, and under ever-expansive interpretations by state appellate courts, probably a majority of murders would qualify.

If the jury finds the accused guilty and finds the special circumstances true, the second phase begins, and the jury has to decide whether the defendant will receive life imprisonment without possibility of parole or death.

How is the jury instructed to decide this momentous question? By weighing the “aggravating circumstances” against the “mitigating circumstances,” or in plain English: “bad stuff” vs. “good stuff.” The problem is that there are no rules for what is “bad stuff” or “good stuff,” or for that matter, how it should be weighed.

Arguing for a man’s life before a jury in California is nothing more than an enormous crap shoot ungoverned by any logic, reason or consistency. For example, a jury is instructed to weigh a defendant’s age but is not told whether “age” is aggravating or mitigating. Ordinarily, one would think that youth would be a “mitigating circumstance.” But prosecutors are quick to argue that sending a dangerous young man to prison would leave him 50 years to harm others inside.

Similarly, jurors are told to weigh whether a defendant suffered from “a mental disease or defect.” Defense attorneys argue mental illness as a mitigating factor. Prosecutors then use the same instruction to argue that the defendant is a “mad dog” who should be executed for the safety of the community.

With the rules undefined, the race and class of the accused and the race and class of the victim play an enormous role in the jury’s decision-making. A black who kills a white is 10 times as likely to get the death sentence as a white who kills a black. Several U.S. Supreme Court justices find this disturbing.

Even before the top court decided to hear arguments, two events hinted that California’s death penalty may not survive in its current form.

The first was the replacement of Justice Byron R. White by Ruth Bader Ginsburg. White was generally a pro-death vote on the court, whereas Ginsburg, arguing for women’s civil rights, made the “equal protection” case before the U.S. Supreme Court many times as a lawyer. The new justice recently noted how surprised she was at the enormous time the court devotes to reviewing death-penalty cases.

The second was a rare interview given by Justice Harry A. Blackmun to Ted Koppel and Nina Totenberg. During the interview, Blackmun tactfully but repeatedly mentioned his concern that the death penalty is being administered nationally in a way that discriminates against racial and ethnic minorities in violation of the Fourteenth Amendment’s “equal protection” clause.

There is strong sentiment that the state should ask for the death penalty against Polly Klaas’ killer. But there is something troublingly ironic about so many state officials posturing to obtain a penalty--the threshold for which is so unclear--that the state seemingly cannot legally carry out even if it wins the trial.