The death penalty doesn’t pay

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ELISABETH SEMEL is a professor at UC Berkeley's Boalt Hall School of Law and director of Boalt's Death Penalty Clinic.

IF THE SCHEDULED execution of Clarence Ray Allen goes forward on Jan. 16 -- the day after his 76th birthday -- he will be the oldest person executed in California since the death penalty was reinstated. But he will not be the first elderly, seriously ill inmate executed, nor will he be the last. Similarly, although his case received extraordinary media coverage, Stanley Tookie Williams was neither the first nor the last prisoner put to death who many believe had profoundly changed while in prison.

What is extraordinary, however, about these two executions is that they will have occurred a month apart. That is unprecedented in a state that, until December, had carried out only 11 executions since 1977 -- on average, less than one every two years. And the executions are not about to stop. According to the state attorney general’s office, three other men are likely to face execution in 2006 and, within several years, the number of executions may be “considerable.”

Ironically, California is speeding up the pace of executions just as public support for the death penalty is waning. Nationwide, the rate of executions continues to decrease. In California, fewer prosecutors have sought the death penalty since 2001, and fewer juries have been willing to deliver death verdicts. Were their cases in the trial courts today, it seems likely that a significant number of the 646 individuals now on our state’s death row would not be selected for capital prosecution in the first place or would be allowed to negotiate a plea for a sentence of life without possibility of parole or, if tried, would not receive a death verdict.


There are 3,327 men and women in California serving sentences of life without possibility of parole. These are individuals who for reasons of geography, race, economic status, prosecutorial discretion, trial verdict, good lawyering or even good timing -- to name just a few -- were found guilty of death-eligible crimes but were not ultimately sentenced to death.

Just like those on death row, some were convicted of multiple murders, and some had prior records, including crimes of violence. Just like those on death row, most had never taken a life before, and many did not have a serious criminal history. And, just like those awaiting execution, some of the families of their victims wanted them to pay with their lives, and others did not.

In sum, the line that divides those we execute and those we do not remains as arbitrary and capricious as it was in 1972, when the U.S. Supreme Court declared it constitutionally intolerable.

What if, instead of more executions, Californians awoke tomorrow to find that capital punishment was gone and could not be resurrected?

Some prosecutors, jurors and family members of victims would no doubt be frustrated and angry. But there also would be relief on the part of prosecutors who have had second thoughts about the fairness and reliability of the outcomes they pursued. There certainly would be relief on the part of jurors who have learned facts about the defendant that were never presented at trial -- facts that would have changed their sentencing verdict. And victims’ family members who either did not want the defendant put to death or who discovered that the prospect of an execution did not abate their grief or make any more sense of their loss would share in that sense of relief.

Beyond the emotional fallout, how would California get on with the state’s business? Can California live without the ultimate act of retribution? The answer is that our state would do immeasurably better by removing this albatross of enormous financial and psychic weight.


California has recent experience functioning without executions. There were none in this state from 1967 to 1976, when a de facto moratorium occurred during a period of intense, nationwide litigation, including the Supreme Court’s decision in 1972 to overturn the death penalty statutes then in effect.

Although California reinstated the death penalty in 1977, 15 years passed before there was an execution while cases made their way through the courts. Thus, for a quarter of a century, California carried on without putting a single man or woman to death. During this period, murder rates here fluctuated -- as they did in states with and without capital punishment. However, California’s experience is consistent with more than a century of social science findings that the presence or absence of executions is irrelevant to murder rates.

According to a Times article last March, each of the 11 executions after 1977 cost Californians a quarter of a billion dollars. The article found that, for institutional reasons, the cost of housing death-sentenced inmates is three times that of the general population. A capital trial costs at least three times as much as a non-capital murder trial. It takes tens of millions of dollars annually to pay for courts, prosecutors and defense counsel.

Despite recruiting efforts, the California Supreme Court still cannot secure willing and qualified lawyers to represent more than 200 of those currently on death row who will wait four to eight years for appointment of counsel to handle their cases. In short, although we are spending an enormous amount on our death penalty system, we are not spending nearly enough.

On Tuesday, the state Assembly Public Safety Committee passed AB 1121, which would enact a moratorium on executions. Now we must hope that the Assembly and state Senate pass the legislation and that Gov. Arnold Schwarzenegger signs it. The measure would suspend the death penalty for three years, until Jan. 1, 2009, when the California Commission on the Fair Administration of Justice completes its investigation into a range of systemic issues, including whether capital punishment allows the innocent to be executed.

In the intervening years of the moratorium, perhaps Californians and their elected officials can summon up the courage and the common sense to put an end to the death penalty.