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EXECUTING the WILL of the VOTERS?: a ROADMAP to MEND OR END the CALIFORNIA LEGISLATURE’S MULTI-BILLION-DOLLAR DEATH PENALTY DEBACLE Judge Arthur L

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EXECUTING the WILL of the VOTERS?: a ROADMAP to MEND OR END the CALIFORNIA LEGISLATURE’S MULTI-BILLION-DOLLAR DEATH PENALTY DEBACLE Judge Arthur L EXECUTING THE WILL OF THE VOTERS?: A ROADMAP TO MEND OR END THE CALIFORNIA LEGISLATURE’S MULTI-BILLION-DOLLAR DEATH PENALTY DEBACLE Judge Arthur L. Alarcón* & Paula M. Mitchell** Since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions. The current backlog of death penalty cases is so severe that most of the 714 prisoners now on death row will wait well over 20 years before their cases are resolved. Many of these condemned inmates will thus languish on death row for decades, only to die of natural causes while still waiting for their cases to be resolved. Despite numerous warnings * Senior Judge, U.S. Court of Appeals for the Ninth Circuit. Over the course of his legal career, he has participated in every aspect of death penalty cases. As a Los Angeles County Deputy District Attorney, he prosecuted persons accused of first degree murder in which the death penalty was sought. As the Legal Advisor to Governor Edmund G. “Pat” Brown, he was responsible for conducting investigations to assist the Governor in deciding whether to grant a commutation of the sentence of death row inmates to life imprisonment. As Chairman of the Adult Authority (California Parole Board for Adult Men), he reviewed applications for release on parole from prisoners convicted of murder in the first degree and other felonies. As a Los Angeles County Superior Court judge, he presided over first degree murder trials in which the prosecution sought the death penalty. As an Associate Justice of the California Court of Appeal, he reviewed judgments of trial courts in first degree murder cases of prisoners who were sentenced to life without the possibility of parole. As a member of the United States Court of Appeals for the Ninth Circuit, he has reviewed decisions of federal district courts that granted or denied the habeas corpus petitions of California death row inmates. ** Adjunct Professor of Law, Loyola Law School Los Angeles, Habeas Corpus and Prisoner Civil Rights Litigation; J.D., 2002, Loyola Law School Los Angeles; M.A., 1989, The London School of Economics and Political Science; B.A., 1987, University of Massachusetts, Amherst. She has practiced in major law firms in both New York and Los Angeles, focusing on high-stakes litigation and appeals, in both federal and state courts. As a law clerk for Senior Judge Arthur L. Alarcón, she has reviewed numerous §2254(a) habeas corpus petitions filed by California state prisoners in the Eastern District of California, and has participated in the appellate review of matters pending before the Third, Fourth, Sixth, Ninth, Tenth, and Eleventh Circuits. She would like to thank Elizaveta Kabanova, Molly Karlin, Kathryn Lohmeyer, and Tara Mitcheltree, for their energetic, thoughtful, and conscientious contributions to the research and preparation of this Article. S41 S42 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:S41 of the deterioration of California’s capital punishment system and its now imminent collapse, the Legislature has repeatedly failed to enact measures that would improve this death row deadlock. At the same time, voters have continued to expand the death penalty through the direct voter initiative process to increase the number of death-eligible crimes. This Article uncovers the true costs of administering the death penalty in California by tracing how much taxpayers are spending for death penalty trials versus non–death penalty trials and for costs incurred due to the delay from the initial sentence of death to the execution. In addition, the Article examines how the voter initiative process has misled voters into agreeing to the wasteful expenditure of billions of dollars on a system that has been ineffective in carrying out punishment against those who commit the worst of crimes. Our research reveals that in every proposition expanding the list of death- eligible crimes between 1978 and 2000, the information provided by the Legislative Analyst’s Office in the Voter Information Guides told voters that the fiscal impact of these initiatives would be “none,” “unknown,” “indeterminable,” or “minor.” Relying, at least in part, on this information, Californians have used the voter initiative process to enact “tough on crime” laws that, without adequate funding from the Legislature to create an effective capital punishment system, have wasted immense taxpayer resources and created increasingly serious due process problems. Finally, this Article analyzes corrective measures that the Legislature could take to reduce the death row backlog, and proposes several voter initiatives that California voters may wish to consider if the Legislature continues to ignore the problem. It is the authors’ view that unless California voters want to tolerate the continued waste of billions of tax dollars on the state’s now-defunct death penalty system, they must either demand meaningful reforms to ensure that the system is administered in a fair and effective manner or, if they do not want to be taxed to fund the needed reforms, they must recognize that the only alternative is to abolish the death penalty and replace it with a sentence of life imprisonment without the possibility of parole. SPECIAL ISSUE] EXECUTING THE WILL OF THE VOTERS? S43 TABLE OF CONTENTS INTRODUCTION ................................................................................. S46 OVERVIEW ........................................................................................ S48 I. BULLDOZING BARRIERS AND UNEARTHING HIDDEN COSTS: HOW MUCH ARE CALIFORNIA TAXPAYERS REALLY PAYING FOR THE STATE’S ILLUSORY DEATH PENALTY? ..................... S62 A. Cost Study: California’s Death Penalty Is a $4 Billion Capital Blunder ............................................................... S65 1. Death Penalty Pre-Trial and Trial Costs: $1.94 Billion ........................................................................ S69 2. Automatic Appeals and State Habeas Corpus Petitions: $925 Million .............................................. S79 a. California Supreme Court ..................................... S80 b. Habeas Corpus Resource Center .......................... S86 c. Office of the State Public Defender ...................... S87 d. Office of the California Attorney General ............ S87 3. Federal Habeas Corpus Petitions: $775 Million ........ S88 a. Data from district court closed cases: CJA Panel attorney representation costs $635,000 per case on average .............................................. S93 b. Data from Defender Services: FPD CHU representations cost $1.58 million per case on average ................................................................. S94 4. Costs of Incarceration: $70 Million Per Year; $1 Billion Since 1978 ..................................................... S99 a. Construction of a new Condemned Inmate Complex (CIC): $1.2 billion for first 20 years ... S100 b. Incarcerating inmates on death row: $1 billion since 1978 ........................................................... S102 5. The Present Administration of California’s Death Penalty: A Complete Failure ................................... S109 II. PAVED WITH GOOD INTENTIONS: THE LEGISLATIVE HISTORY OF THE DEATH PENALTY IN CALIFORNIA .............................. S111 A. Direct Democracy .......................................................... S111 B. Understanding the Voter Initiative Process in California ...................................................................... S113 1. Distinguishing Features of California’s Initiative Process ..................................................................... S115 S44 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:S41 a. Frequent amendment of the California Constitution through the initiative process creates “perpetual instability” ............................ S116 b. No subject-matter restrictions on California initiatives ............................................................ S123 c. No amendment or repeal by Legislature ............. S124 d. The sheer volume of voter initiatives in California ............................................................ S127 2. Death Penalty Initiatives in California ..................... S131 a. The 1972 initiative amending the California Constitution ........................................................ S131 b. The 1973 statute: Introduction of 10 “special circumstances” ................................................... S132 c. The 1977 statute: 12 more death-eligible crimes ................................................................. S135 d. The 1978 Briggs Initiative: Proposition 7—16 more special circumstances, 28 death-eligible crimes ................................................................. S138 e. The 1990 initiatives: Propositions 114 and 115—Five more special circumstances, 33 death-eligible crimes .......................................... S143 f. The 1996 initiatives: Propositions 195 and 196—Three more special circumstances, 36 death-eligible crimes .......................................... S146 g. 1999: Proposed initiative to abolish the death penalty ................................................................ S151 h. The 2000 Initiatives: Propositions 18 and 21— Three more special circumstances, 39 death- eligible crimes .................................................... S156 3. Cumulative Effect of Death Penalty Initiatives: What the Voters Were and Were Not Told ............. S158 III. HAZARDOUS
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