Death row’s dicey math


When Tuesday’s hearings in Sacramento on proposed changes in California’s method of executing convicted murderers veered into a discussion of why solutions to the state’s budget crisis ought to include the abolition of capital punishment, it was another example of how divided our attitude on this issue remains.

In fact, if you look back through this vexed issue’s history here, what emerges clearly is a deep ambivalence -- a popular unwillingness to renounce the death penalty as a symbol of the state’s ultimate sanction against criminality, and a persistent current of reluctance to see it imposed too frequently. It’s that division that sets California apart from most other capital punishment states.

The death penalty was first incorporated into California’s penal code early in 1872, and, from the language of the statute, it’s clear that one of the lawmakers’ primary concerns was to keep their state’s executions from turning into the kinds of public spectacles that still were common across the country.


“A judgment of death must be executed within the walls or yard of a jail, or some convenient private place in the county. The sheriff of the county must be present at the execution, and must invite the presence of a physician, the district attorney of the county, and at least 12 reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such ministers of the gospel, not exceeding two, as the defendant may name, and any persons, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same.”

There are no reliable statistics on how many such county executions were carried out, but in 1891, the law was amended to require that all hangings be done at either San Quentin or Folsom prisons. Over the next 46 years, 307 people were hanged at one or another of the prisons, or just slightly more than six prisoners per year, a stunningly low total for what was a fairly bloodthirsty period in the history of American criminal justice.

In 1937, the state adopted the gas chamber as its preferred method of execution, and administration of the death penalty became the exclusive province of San Quentin, where California’s death row for men remains to this day; condemned women are housed at Chowchilla. From that point until judicial rulings halted capital punishment in 1967, the state executed 194 men and women -- again about six per year, still a strikingly low number, particularly given the rapid rise in population over that period.

Since Robert Alton Harris’ execution in 1992 -- the first after a 25-year hiatus -- California’s actual imposition of the death penalty has slowed even more. Just 13 people have been executed since then, which is less than one per year. These days, an inmate is more likely to die of natural causes than to be executed. But the number of people sent to death row has continued to climb, and San Quentin now houses 682 condemned men.

In other words, if we continue to execute condemned men at the current rate, it will take something approaching 1,000 years to clear San Quentin of all prisoners currently under sentence of death. If you feel like you’ve just crossed over into the Twilight Zone, you’re not alone.

Though 60% of Californians continue to support capital punishment, few people are calling for eliminating procedural safeguards and speeding the rate of execution. As they have historically, the people of this state appear to support the idea of the death penalty, but to be dubious about its application.

No doubt the work of attorneys Barry Scheck and Peter Neufeld and their New York-based Innocence Project, which has relied on DNA testing to exonerate wrongly convicted men and women across the country, has had an impact on peoples’ attitudes toward the death penalty. Americans will quarrel to the death over points of principle, but science is science. And what the application of genetic science to the criminal justice system has made clear is that what we hopefully call “due process” is too often a crap shoot.

Given California’s deep ambivalence about capital punishment, the arguments being made by former Los Angeles District Atty. and state Atty. Gen. John Van de Kamp -- a longtime capital punishment supporter -- and others that death row simply has become too expensive to maintain have a new resonance. Van de Kamp and Gov. Arnold Schwarzenegger’s former state corrections chief, Jeanne Woodford, argue that cash-strapped California will spend as much as $1 billion to keep the death penalty on the books over the next five years.

Assuming the state eventually comes up with an execution protocol that passes judicial muster, that’s a lot to spend for the deaths of fewer than five convicts, who just as easily could be sentenced to life without parole.