When death penalty means a better life


White supremacist gang hit man Billy Joe Johnson got what he asked for from the Orange County jury that convicted him of first-degree murder last month: a death sentence.

It wasn’t remorse for his crimes or a desire for atonement that drove him to ask for execution; it was the expectation that conditions on death row would be more comfortable than in other maximum-security prisons and that any date with the executioner would be decades away if it came at all.

Although executions are carried out with comparative speed in states such as Virginia, where Beltway sniper John Allen Muhammad was put to death Tuesday night, capital punishment in California has become so bogged down by legal challenges as to be a nearly empty threat, say experts on both sides of the issue.


“This is a dramatic reaffirmation of what we’ve already known for some time, that capital punishment in California takes way too long,” Kent Scheidegger, legal director for the law-and-order Criminal Justice Legal Foundation in Sacramento, said of Johnson’s bet that he will live a long life on death row. “This guy certainly feels like it’s worth the risk.”

Statistics suggest that Johnson may be correct in his calculations.

California has the nation’s largest death row population, with 685 sentenced to die by lethal injection. Yet only 13 executions have been carried out since capital punishment resumed in 1977 and none of the condemned have been put to death since a moratorium was imposed nearly four years ago. Five times as many death row inmates -- 71 -- have died over that same period of natural causes, suicide or inside violence.

Though death row inmates at San Quentin State Prison are far from coddled, they live in single cells that are slightly larger than the two-bunk, maximum-security confines elsewhere, they have better access to telephones and they have “contact visits” in plexiglass booths by themselves rather than in communal halls as in other institutions. They have about the only private accommodations in the state’s 33-prison network, which is crammed with 160,000-plus convicts.

Death row prisoners are served breakfast and dinner in their cells, can usually mingle with others in the outdoor exercise yards while eating their sack lunches, and have exclusive control over the television, CD player or other diversions in their cells.

“Death row inmates probably have the most liberal telephone privileges of anyone in state custody,” said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, explaining that they need ready access to their attorneys and can often make calls from their cells over a phone that can be rolled along the cellblock.

The condemned wear the same jeans and chambray-shirt prison garb, eat the same food as prepared in other prisons and enjoy the same access to mail-order and canteen goods paid for by their families, as long as they maintain good behavior, Thornton said.

Those on death row are also allowed more personal property inside their cells, to accommodate their voluminous legal documents without infringing on the 6 cubic feet of snacks and entertainment devices allowed each prisoner, said Lt. Sam Robinson, spokesman for San Quentin.

“It’s not that he thinks conditions will be better; they are better,” Johnson’s attorney, Michael Molfetta, said of his client’s request for death row. Johnson, 46, figures that he will be close to 70 by the time his appeals are exhausted, Molfetta said, “and he says he doesn’t care to live beyond that.”

Johnson was convicted last month of first-degree murder with special circumstances in the March 2002 killing of former gang associate Scott Miller. Johnson, a “shot caller” in the white supremacist Public Enemy Number One gang, was found guilty of orchestrating Miller’s execution-style murder for having revealed gang secrets in a television interview.

On Oct. 29, Johnson’s jury decided that he should be sentenced to death. Orange County Superior Court Judge Frank F. Fasel is expected to impose the execution order when he formally sentences Johnson on Nov. 23.

As an “L-WOPP,” a prisoner sentenced to life without the possibility of parole, Johnson could have been sent to any maximum-security facility in the state, where other Level IV offenders share an 8-foot-by-10-foot cell, a sink and a toilet. Gang leaders are often sent to the special housing unit at Pelican Bay State Prison, where they live in isolation with few of the comforts allowed elsewhere.

It costs the state about $49,000 a year to house each prisoner, according to corrections department statistics. Thornton said her department has never put a figure on the cost for “more staff-intensive” death row housing, but a state commission of experts last year estimated that the additional security and legal spending for capital inmates costs taxpayers $138,000 per death row prisoner each year.

Legal analysts say Johnson’s request for a death sentence highlights how delays in executions could undermine any deterrent effect of California’s death penalty.

“If you accept the premise that the death penalty is about retribution, about punishing someone for intolerable acts, you might argue that it is completely inappropriate to grant someone’s request to have a death penalty imposed because it is more suitable or convenient for him,” said Kara Dansky, executive director of the Criminal Justice Center at Stanford University. “It does seem to weaken the position of those who say the death penalty is a justified mode of punishment.”

Laurie Levenson, a former prosecutor now teaching criminal law at Loyola Law School, said Johnson is probably correct in gauging that he’ll be better off on death row.

“We have a perverse system, given that we have a death row but we don’t really have executions,” she said. Convicts seeking death sentences “don’t really feel like they are making life-and-death decisions.”

Executions have been on hold in California for almost four years, following a federal judge’s orders for review and reform of lethal injection procedures. Those orders came after concerns were raised that some of those executed by the three-shot sequence might not have been rendered unconscious by the first injection. That could expose the condemned inmate to pain from the final shot that would be unconstitutionally cruel and unusual punishment, U.S. District Judge Jeremy Fogel ruled in 2006, when he ordered the state to correct the alleged deficiencies.

New protocols were proposed earlier this year but are pending approval by corrections officials still sorting through thousands of comments and challenges, and are facing at least another year of procedural hurdles ahead of Fogel’s review.