No on Prop. 34: Let the death penalty live

My entire professional life has been entwined with the death penalty. As a prosecutor, I asked for the death penalty. As a judge, I imposed it. As a citizen, I will vote next month to retain it as a punishment option in California.

I have often encountered the argument that the death penalty is not a deterrent because it did not deter someone from carrying out a particular murder. But the actual issue is a larger one: Would there have been more murders in California without its deterrent effect? That's a hard question to answer with certainty, of course, but there has been considerable research to suggest the death penalty is a significant deterrent.

Additionally, I am all too aware of one case in which the death penalty, imposed in a timely fashion, might have prevented additional killings.

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Clarence Ray Allen was the last man to be put to death in California before a moratorium on executions in the state was issued in 2006. His first murder conviction came in 1977 for arranging the 1974 killing of a potential witness against him in a burglary. I was the prosecutor on that case. We won a conviction, and Allen was sentenced to life in prison. Then, in 1980, while behind bars, Allen arranged the killings of witnesses who had testified against him in his murder trial. That was the last case I worked on as a prosecutor before I was elected as a judge.

In that case, he was finally sentenced to death, but even then it wasn't until 26 years after the killing that he was finally executed. During all that time, the loved ones of the deceased had no closure. Retribution is not only a need of society; it is a right of those victimized.

Our system is not infallible. Opponents say the fact that it's possible that someone could be wrongfully executed is enough to conclude we shouldn't have the death penalty. They can't, however, point to a case in California in which the system has allowed an innocent person to be executed.

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Every criminal conviction should be based on the highest degree of certainty, and we should certainly shore up weaknesses in the system. No one should be convicted, for example, by eyewitness and informant testimony that is not substantiated by independent evidence. But eliminating the death penalty does nothing to address these issues.

A number of independent empirical studies have reached the conclusion that the existence and imposition of the death penalty results in a statistically demonstrable reduction in murders. And that means human beings are alive today instead of dead as a result of a law.

We have no way of knowing for certain, of course, how many people are not murdered because of the existence of the death penalty, and there have been studies that concluded the death penalty had no deterrent effect, but I don't find them convincing.

Why? In part because of what I saw over a long career. In cases of premeditated murder, considerable planning often goes into the act, and that planning can include the weighing of what is to be gained against the potential penalties. Any penalty can have some deterrent effect, but the more severe the penalty, the greater the disincentive to commit the crime.

If you knew that by executing one guilty person you could save even one or two innocent people from being murdered, the moral choice seems clear. Those who criticize aggressive sentencing laws often ignore the most important moral issue. If we can, through effective sentencing, reduce victimization, then it seems to me we are morally obligated to impose sentences that have that effect.

I respect those who have moral reservations about the death penalty. But moral choices can carry consequences too. If the death penalty has prevented some people from being murder victims, then doing away with it would create additional murder victims. I would far rather face the moral consequence of the death penalty than the consequence of innocent victims being killed. I choose innocent lives over guilty lives.

James A. Ardaiz is the former presiding justice of California's 5th District Court of Appeal. His new book, "Hands Through Stone," chronicles the Clarence Ray Allen case.

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