PART II: The Committee on the Revision of the Penal Code Presents Unique Challenges to California’s Death Penalty System

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By Lovepreet Dhinsa and Mia Machado

CALIFORNIA – In addition to the continuing legal battles around the constitutionality and inhumane nature of capital punishment in California, the Committee on the Revision of the Penal Code discussed several criticized legal infirmities with the death penalty that are unique to California.

The following story is based on the Committee’s analysis.

The Committee criticized legal infirmities, including the failure to narrow focus, instruct on reasonable doubt and unanimity in juries, overall dysfunction, and a lack of proportionality review.

A key failure cited by the Committee is the inability to narrow down the application of the death penalty. In order for the death penalty to be termed “constitutional,” the statue must narrow eligibility to administering to the most serious offenses.

Many have criticized the penalty for its broadness, in regard to combining all homicide offenses under one category. However, this issue has not been addressed by the state’s Supreme Court yet.

District Attorneys of Contra Costa, Los Angeles, Santa Clara, San Francisco, and San Joaquin counties all filed an amicus brief in support of this need for narrowing argument.

Due to the failure of not addressing this issue, the decision for which defendants receive the penalty is influenced by factors such as geography, the form of representation (public defender or court-appointed lawyer), race, and ethnicity of the defendant and victim.

After 13 Years, Committee on the Revision of the Penal Code Reviews the Death Penalty

Another failure that is unique to the state, said the Committee, is the failure to instruct on reasonable doubt and unanimity in the penalty phase.

Juries are not required to unanimously agree on important factors during trials and are also “not required to find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors or that death is the appropriate punishment.”

Gov. Gavin Newsom has filed an animus brief in support of determining whether this practice violates the constitution, in which Newsom also mentioned that “[n]ationally and in California, non-unanimous verdicts have been intended to entrench White jurors’ control of deliberations.”

The governor and district attorneys argued that the unclear instructions of determining unanimity in these decisions and not proving beyond a reasonable doubt magnify the arbitrary nature of the death penalty.

Overall disfunction is also a common theme in the death penalty system. In 2014, a Federal Court Judge in Santa Ana, Cormac Carney, came to the conclusion that the death penalty was unconstitutional, in which:

“(S)ystemic delay has made execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose; life in prison, with the remote possibility of death.”

Although Judge Carney made this decision, it was later overturned by the Ninth Circuit Court on “procedural grounds of failure.” This issue also is yet to be addressed by the state’s Supreme Court.

Another key failure within the death penalty system is the lack of proportionality review, notes the Committee.

An important review of the criminal justice system intended to address bias, proportionality review, which is the process of “comparing facts and circumstances across different defendants to ensure fair and proportional sentencing,” is not fully administered in the state.

There are two types of proportionality reviews, inter-case review (comparison of outcomes in defendants in different cases) and intra-case review (comparison of outcomes in defendants involved within the same case).

California law requires intra-case proportionality review; however, no death sentence has been investigated as invalid. This is stark contrast to the proof of disproportionality in multiple cases, in which an accomplice that was not directly responsible for a murder was sentenced to death when the defendant directly responsible for the murder received a lower sentence.

This issue has been rejected by the California Supreme Court previously; however, newer evidence has yet to be presented to the Court.

The Committee then highlighted the California death penalty’s roots in racial biases, explaining that “[i]n many ways, capital punishment concentrates racial bias that pervades the entire criminal legal system.

When discussing capital punishment today, the Committee reasoned, “America’s history of racial violence against people of color, particularly through the practice of lynching, cannot be ignored.” Despite being a prominent practice in southern states, the practice still existed in California, where “ethnic minorities were disproportionately targeted for violence”

In California, Mexican Americans were “often lynched after being accused of victimizing a white person, with little process and no trial.” This practice of lynching—despite being an extra-judicial process—was closely tied to the criminal justice system as it “regularly occurred in response to an allegation of a serious crime”

Though the country shifted away from lynching in the mid-twentieth century and established capital punishment, the new, legally sanctioned practice was still “often markedly different for people of color charged with capital offenses.”

Using data on California, the Committee sought to demonstrate the death penalty’s racialized history.

For example, data indicates that in California, the race of a defendant may impact whether or not the death penalty will be imposed, with Black and Latinx defendants disproportionately sentenced to death.

Though only accounting for 6.5 percent of California’s population, “over one third of people on death row in the state are Black.” Likewise, despite making up less than half of homicide arrests between 2005 and 2019, all eight of those sentenced to death in California in 2018 and 2019 were Latinx.

Similar disparities are seen on the county level. Of the 92 people currently on death row in Riverside County, for example, 76 percent are people of color. Available data also “indicates that the race of the victim also impacts who is sentenced to death in California.”

Citing the research of Glenn Pierce and Michael Radelet on death sentences imposed in California, the Committee asserted that “people convicted of killing white victims receive the death penalty at a rate of 1.75 per 100 victims, while those convicted of killing Black or Latinx victims are sentenced to death at a rate of .47 per 100 victims and .369 per 100 victims, respectively.”

Similar trends are observed again on the county level, where researchers determined that in San Diego County “the District Attorney was over seven times more likely to seek the death penalty in cases with a Latinx defendant and a white victim,” and six and a half times more likely in cases with a Black defendant and a white victim, than in cases involving Black or Latinx victims.

These racial disparities are also echoed in the application of six of the 22 special circumstances that make a person eligible for the death penalty in California.

The Committee’s analysis also touched on the many sources of biased practices that contribute to the racially disproportionate application of the death penalty.

In the instance of policing, researchers have found that “homicides involving minority victims are less likely to be solved,” meaning “people who kill minority victims are less likely to face the death penalty.”

The “broad discretion afforded prosecutors in determining when to seek the death penalty” may also offer insight into disproportionate sentencing practices, the Committee explained, though very little is known about how prosecutors make these decisions.

In a survey sent out to all 58 counties in 2008 by the California Commission on the Fair Administration of Justice—seeking information into the decision process of the offices—“20 counties never responded and fourteen declined to participate.”

There are also racial disparities in jury selection processes. Juries in California continue to be disproportionately white despite the adoption of various rules to prevent racial biases from impacting jury selection.

While the Legislature enacted the Racial Justice Act, “which aims to eliminate racial bias and racially discriminatory practices in the criminal justice system,” its provisions currently only apply to cases that were not final on January 1, 2021, limiting its reach, said the Committee.

Similar to racial bias, data indicates that geographic location of sentencing influences a defendant’s chances of receiving the death penalty.

In fact, data provided to the Committee by CDCR found that “the majority of death judgments in California are imposed by a select few counties.” Riverside County, for example, “sentences people to death so frequently that it has become a national outlier.”

Given the seriousness of a capital punishment sentence, the modern death penalty is intended to function under a narrow application, reserved for “the worst of crimes” and toward those individuals that possess “a consciousness materially more depraved” than the average person.

The Court is expected to consider “mitigating factors” that could narrow the number of defendants eligible for the death penalty, such as intellectual disabilities, youth, severe mental illnesses, and chronic childhood trauma. This is in direct effort to narrow down the death penalty’s application to specifically those with “extreme culpability.”

This narrow application in practice, however, is not always strictly enforced, which the Committee asserts calls into question whether California is effectively capable of identifying people with extreme culpability.

For example, in Atkins v. Virginia (2002), the U.S. Supreme Court had ruled that capital punishment sentencing for people with intellectual disabilities was unconstitutional.

Anyone with intellectual disabilities would not be capable of premeditation, deliberation, or would they possess the “cold calculus that precedes the decision of other potential murderers,” thereby making them ineligible for the death penalty.

While many individuals diagnosed with intellectual disability still find themselves on death row, there are currently at least 40-50 percent out of 175 petitions that raise Atkins claims.

In particular, an individual has been on death row since 1986, who scored below 70 on the IQ score on 4 out of 5 tests. This individual has been diagnosed, but remains on death row, where he “rolls his feces into little balls, hoards food in the toilet, rarely bathes and speaks in a low, rambling, incoherent string of mumbles.”

More than 85 people on death row have yet to receive habeas counsel for more than 20 years.

The state’s clinical definition of intellectual disability is also limited, because it is restricted to disabilities that were suffered from a young age.

This is a critical failure of inclusion, the Committee wrote, excluding people who have suffered any disabilities as an adult.

Similar limitations for a narrowed application death penalty arise with the sentencing of young adults. In Roper v. Simmons (2005), the Supreme Court “extended the findings in Atkins to people who were under the age of 18 at the time of their crimes.”

While Roper sets a restriction at 18, research shows that the same qualities that conclude minors as ineligible for the death penalty—such as a “vulnerability or susceptibility to ‘negative influences’” and a “underdeveloped sense of responsibility”—also characterize young adults.

California has continued to sentence people to death row who committed crimes as young adults. And as indicated, Roper v. Simmons (2005), the Supreme Court extended the exclusion of the death penalty for those who were under the age of 18.

The primary reason for this inclusion was the findings that juveniles could be affected by peer pressure, may have an “underdeveloped sense of responsibility,” their inability to be “classified among the worst offenders, and it is unlikely that they performed a “cost-benefit analysis.”

Neurological evidence suggests that these traits only become matured as a young adult, as opposed to a juvenile. Despite this, 45 percent of those individuals on the death row were under 25 or younger at the time of their first offense. One hundred sixty-seven of these individuals were 21 or younger. Twenty-four of these individuals were 18 years of age.

This issue works in conjunction with racial disparities within the capital punishment system in the state, with about 68 percent, said the Committee, of all people on death row being people of color and 80 percent of all people on death row being 21 or younger.

Despite the fact that age is an important mitigating factor for the death row penalty, it significantly fails to protect young defendants. Most often, the nature and circumstances of the crime outweigh the age of the defendant.

The Committee notes that California is also responsible for sentencing people with severe mental illness to death—more than one-third of the death row population is being treated for severe mental illness.

After significant research, the American Bar Association, the American Psychiatric Association, the National Alliance on Mental Illness, and Mental Health America have suggested against the use of the death penalty against those with mental illnesses, as “this population simply does not have the requisite moral culpability.”

In addition to the failure to account for moral culpability, someone with mental illness can be mistaken to not be cooperating with their attorneys or with the Court.

Although mental illness is a grave mitigating factor in the exclusion of the death penalty, most often it is used as an aggravating factor when jurors become biased and interpret an individual’s behavior to be lacking of remorse.

The state has also been responsible for sentencing people with chronic childhood trauma to death. According to Committee researchers, more than a majority of individuals currently on death row have experienced severe childhood trauma and abuse.

A recent report from the California Surgeon General explains that the trauma can result from a number of factors, including poverty, having family members incarcerated, and domestic violence. The report concluded that these types of trauma can create cognitive impairment, mental illnesses, and substance abuse disorders.

Further, another key failure of the death penalty system is the number of innocent people who have been sentenced to death in California. Five innocent men were sentenced to death row, serving a combined total of 87 years in prison for offenses they did not commit before getting released. To no surprise, all five men were people of color.

The Committee also notes that, in addition to this, there are many causes for wrongful convictions. Since 1973, 156 people have been exonerated within the United States.

In 2014, University of Michigan law professor, Samuel Gross, and several other researchers, determined that about four percent of individuals sentenced to death row were innocent. Following Gross’s analysis, 28 people in California would currently be innocent.

Criminologists found the leading cause of false convictions to be eyewitness misidentification (photo arrays, in-court identifications, and live line-ups), which occurs in about 72 percent of DNA exoneration cases.

The second highest cause for false convictions was determined to be misapplication of forensic science (errors in the disciplines of serology, hair microscopy, bite-marks, DNA, dog scent, and fingerprint analysis), which occurs in about 47 percent of false conviction cases.

The third and fourth highest causes for false convictions are false confessions and the use of informants who received incentives to testify.

Another cause, which is quite overlooked, is that more than half of the death row sentences in California were primarily due to the ineffectiveness of trial counsel.

And, according to the Legislative Analyst’s Office, in 2016, eliminating the death penalty in California would help the state save over $150 million per year.

Professor Paula Mitchell and Ninth Circuit Judge Arthur Alarcon did extensive research to determine that continuing the death penalty in the state, through 2013-2050, would cost taxpayers over $5 billion to $7 billion more than the cost of life without possibility of parole (LWOP) cases.

In response to reducing the costs of the death penalty, Proposition 66 was passed, but these efforts were short-lived. Those in support of this proposition argued that swift executions, after five to 10 years of confinement, would help reduce the costs of inmates’ meals and healthcare needs.

However, there are several other costs that this proposition failed to address. These costs include trial, appellate, federal habeas, and prison costs.

Researchers have concluded that a trial involving the death penalty adds between $500,000 and $1.2 million to the costs due to the longer process required for juror selection, the prolonged length of the trial, and the use of experts and investigations.

The current budget total for defense expenditures on these appellate cases is approximately $43.2 annually, and this amount does not include any other Court expenditures. Millions of taxpayer dollars are also used considerably in the investigating and litigating of these death penalty cases in federal court.

Another key expense is the cost of housing an inmate on the death row, which approximates to about $40,000 each year per inmate.

Further, individuals sentenced to death row can be estimated to wait more than 30 years to move through all phases of their post-conviction review. Most often, people die before their appeal process is completely reviewed.

Despite the fact that Proposition 66 was created to increase the speed of death row cases and reduce costs, the time for a case to complete final proceedings continues to increase. According to the Habeas Corpus Resource Center, a significant reason that the timeframe for these cases continues to increase is the lack of resources available to attorneys.

In an effort to address this issue, in 2008 the Commission on the Fair Administration of Justice recommended that the state increase the budget by 500 percent for lawyers. However, this recommendation has yet to be adopted and lawyers continue to be challenged.

Because of the lack of resources for lawyers to work with, several cases are overturned due to ineffective counsel at trial. Most people who are currently on death row have had defense counsel funded by the county or state because they could not afford the financial strain. Indigent clients are further discriminated against when capital defense counsel is paid a flat rate, regardless of the efforts they put into the case.

As a result of the “ineffectiveness” of counsel, most cases are ultimately overturned and taxpayer dollars continue to be thrown at the problem.

Finally, the Committee ends the review by comparing trends of other states in eliminating the death penalty.

In comparison to California, 39 states currently either do not have the death penalty in effect or have not carried out an execution in the past five years. In addition, the federal government had also not carried out any execution in between 2003 and July 2020, before the Trump Administration executed many.

The death penalty is not very common internationally, with the penalty either being formally abolished or never in law in 106 nations. The majority of the executions take place in China, Iran, Saudi Arabia, Iraq, and Egypt.


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10 thoughts on “PART II: The Committee on the Revision of the Penal Code Presents Unique Challenges to California’s Death Penalty System”

  1. Dudley Sharp

    Sadly and politically, this is what California is dealing with:

    Sent to a thousand or so folks in California, inclusive of media and prosecutors, March, 2019
    Gov. Newson: Dead Wrong on Death Penalty

    Newsom said he respected the citizens choice in supporting executions and speeding up appeals. He lied and, then, he lied:

    “As a gubernatorial candidate, Newsom solemnly pledged to abide by the voters’ death-penalty decisions, despite disagreeing with them. He promised to be “accountable to the will of the voters” and not let his “personal opinions” interfere with “the public’s right to make a determination” about capital punishment. His spokesman last year told the San Francisco Chronicle that Newsom “recognizes that California voters have spoken on the issue and [would] respect the will of the electorate.” In editorial-board meetings, Newsom agreed that “it would be an affront for a governor to say ‘Here’s what I’m going to do by fiat.’ ” (Gavin Newsom’s death-row betrayal, by Jeff Jacoby, The Boston Globe March 20, 2019)

    Newsom’s, alleged, concerns over the death penalty, in bold, with my rebuttal thereafter:

    Bias by race:

    Nationally, white murderers are twice as likely to be executed, as are black murderers (1) and have an execution rate 41% higher than black death row inmates (2).

    From 1980-2008, crime statistics show that “for the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape. (3)

    Robbery/murders and rape/murders are the most common death penalty crimes (4).

    There is no race of the defendant nor race of the victim bias effect when looking at capital murders (5).

    Bias against the poor

    We execute 0.2% of our murderers (6).  It is, solely, dependent upon one’s definitions of poor and rich, as to whether the rich, a vast minority of those who commit robbery/murders and rape/murders, are executed at rates higher or lower than the poor, the vast majority of capital murderers.

    We, the people, spared no expense in defending Oklahoma City bomber Timothy McVeigh (7). He was executed  four years after sentencing (8).

    Too expensive

    The two recent Ca studies for death penalty vs life costs are a sham (9).

    Both studies included a cost of $15,000/yr for lifers, when, at that time, the “average” cell cost was $45,000/yr (10), with high security cells at $70,000- $174,000/yr.(11), which would equate to about $5 million, for 50 years, at $100,000/yr, for capital murderer lifers, which does not include pre trial, trial, nor appeals costs, nor specific geriatric care for elderly lifers, which can be 3-9 times the cost of an average cell (12) –  likely, adding millions more to the total, which results in life being more expensive than the death penalty, all left out of those “studies”.

    Innocents at risk

    Newsom parrots a study that “predicts” that 1 out of 25 on death row (4%)”might” be innocent. The foundation of that “study” is this:

    The current  claim by death penalty opponents (DPO) is that 164 (1.8%) (13) were “exonerated” from death row, which is an extension of the 69 “exonerated” fraud, from 1997 (14), when DPO thought it a good idea to redefine both “innocent” and “exonerated” (15), as if they had redefined lie as truth, and then stuck a bunch of cases into those “revised” definitions.

    That deception is the foundation of the 1 out of 25 “study” (16).

    In 2005, New York times reporter Adam Liptak estimated that the false innocence claims from death row amounted to 71%, or  116 of the, now, 164 claimed “exonerated”, which equals 48 proven innocent, or 0.6%, all of whom have been released (17). Other studies find it to be slightly less or slightly more (18) –  likely, the most accurate sanction, as its super due process would predict.

    We might have proof that innocents were executed as recently as 1913 – two brothers from South Carolina (19). Tragic.

    The major innocents problem, nationally, as within California, is this:

    Since 1973:

    16,000 innocents have been murdered by those KNOWN murderers that we have allowed to murder, again –  recidivist murderers (20);

    400,000 innocents have been murdered by those KNOWN criminals that we have allowed to harm, again – recidivist criminals (20).

    Living murderers harm and murder, again. Executed ones do not.

    Where are the innocents at risk?

    No deterrence

    The deterrent effect of severe sanctions and severe negative incentives has never been negated and cannot be.  The evidence that some are deterred is overwhelming (21). The evidence that none are deterred is non existent.

    Therefore, without the death penalty/executions, we risk sacrificing more innocent lives.  With the death penalty/executions, we “risk” saving more innocent lives.

    Bias against the mentally ill

    Newsom is well aware that competency is considered pre trial, trial and within appeals, all to determine if the defendant/convicted party is, legally, competent to be held responsible for their crimes.

    Polling

    If the poll describes an actual death penalty crime, support goes to 70-80% (22)  For example, ask: Do you support jurors having the option between a life or death sentence  in cases wherein children have been raped/tortured/murdered? With answer options of — sometimes — always — never.  Just do the poll.

    Execution support was 81% for Oklahoma City bomber Timothy McVeigh, with near equal support over all demographics (23).

    Death penalty problems? Nope. Management problems.

    Newson blames the death penalty for creating all of its own problems, oblivious to the fact that human management has been irresponsible, not the death penalty.

    For example, responsible management exists in Virginia, wherein, since 1976, they have executed 112 murderers, within 7 years of FULL appeals, prior to execution (24).

    Had California management been responsible, there would, now, be 100 murderers on death row, not 737.

    Newson has shown his contempt for citizens, innocent rape/torture/murder victims and their survivors.

    Murderers and their advocates are jubilant.

    1)  56% of those executed are white, 34% black (a). The Black level is 12.7 times greater than the White level for homicide (fn 2).

    (a) although a very untrusted anti death penalty site, this stat is correct – DPIC, Facts About The Death Penalty, March 12, 2019, https://deathpenaltyinfo.org/documents/FactSheet.pdf

    NOTE:   2016 – 20 prisoners were executed, 16 white, 2 Hispanic, 2 black. 70 prisoners released from under sentence of death by means other than execution, p 2, Highlights, BJS Capital Punishment Report, 2016, April, 2018, 

    2) From 1977-2012, white death row murderers have been executed at a rate 41% higher than are black death row murderers, 19.3% vs 13.7%, respectively. ( Table 12, Executions and other dispositions of inmates sentenced to death, by race and Hispanic origin, 1977–2012, Capital Punishment 2012, Bureau of Justice Statistics, last edited 11/3/14)

    3)  REASSESSING TRENDS IN BLACK VIOLENT CRIME, 1980.2008: SORTING OUT THE “HISPANIC EFFECT” IN UNIFORM CRIME REPORTS ARRESTS, NATIONAL CRIME VICTIMIZATION SURVEY OFFENDER ESTIMATES, AND U.S. PRISONER COUNTS, See pages 208-209, FN 5,  DARRELL STEFFENSMEIER, BEN FELDMEYER, CASEY T. HARRIS, JEFFERY T. ULMER, Criminology, Volume 49, Issue 1, Article first published online: 24 FEB 2011  http://onlinelibrary.wiley.com/doi/10.1111/j.1745-9125.2010.00222.x/pdf

    4) You have to go through each “Offender Information” link, Death Row Information, Offenders on Death Row, Texas Department of Criminal Justice,
    https://www.tdcj.texas.gov/death_row/dr_offenders_on_dr.html

    5) paragraphs 1, 2, 4, 5, 6, 7 & 8

    RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
    http://prodpinnc.blogspot.com/2012/07/rebuttal-death-penalty-racism-claims.html

    6)  Using average of 18,000 murders per year (1973-2018), with 1493 executions, or 0.18%, see FBI data at Disaster Center, http://www.disastercenter.com/crime/uscrime.htm

    7) McVeigh defense cost U.S. $15 million
    https://www.chicagotribune.com/news/ct-xpm-2001-10-28-0110280258-story.html

    8) 1997-2001

    9) Death Penalty Costs: California
    http://prodpinnc.blogspot.com/2012/08/death-penalty-costs-california.html

    10) ibid

    11) ibid

    12)  Older prisoners  (2005 and 2011) cost 3-9 times more than younger prisoners, from: Human Rights Watch. Old Behind Bars: The Aging Prison Population in the United States.Human Rights Watch; Jan 27, 2012 & American Civil Liberties Union. At America’s Expense: The Mass Incarceration of the Elderly. American Civil Liberties Union; New York, NY: Jun, 2012

    13)  The Innocence List, DPIC, as of November, 2018,
    https://deathpenaltyinfo.org/innocence-list-those-freed-death-row

    14) ibid, see first 69, up to 1997. NOTE –  The modern era of death penalty cases did not begin until after Gregg v Georgia, 1976, meaning the list is not relevant, to modern standards, until the 16th case, Larry Hicks, in 1978.

    15)  see sections 3 and 4
    The Innocent Frauds: Standard Anti Death Penalty Strategy
    http://prodpinnc.blogspot.com/2013/04/the-innocent-frauds-standard-anti-death.html

    and

    The “Innocent”, the “Exonerated” and Death Row:
    An Open Fraud in the Death Penalty Debate: How Death Penalty Opponents Lie
    http://prodpinnc.blogspot.com/2013/03/the-innocent-exonerated-and-death-row_19.html

    16)  The 4.1% “Innocent” on Death Row: More Nonsense
    https://prodpinnc.blogspot.com/2015/04/the-41-innocent-on-death-row.html

    17) The Death of Innocents’: A Reasonable Doubt, By Adam Liptak, NY Times, JAN. 23, 2005,

    18) ibid fn 15

    19)  South Carolina pardons black brothers convicted of 1913 killing, By Alex Spilliu, The Telegraph, 18 Oct 2009, https://www.telegraph.co.uk/news/worldnews/northamerica/usa/6366628/South-Carolina-pardons-black-brothers-convicted-of-1913-killing.html

     

     

    1. Eric Gelber

      Bias against the mentally ill

      Newsom is well aware that competency is considered pre trial, trial and within appeals, all to determine if the defendant/convicted party is, legally, competent to be held responsible for their crimes.

      This point was certainly given short shrift. Incompetence to stand trial is not synonymous with mental illness. Regaining competence after training, for example, does not mean a person’s mental illness (or cognitive impairment) has been “cured.”

      Opposition to the death penalty is not based solely on statistical evidence or economics. There is also ethical/moral opposition to state-sanctioned taking of human life, regardless of the data on wrongful convictions, inequitable application, comparative cost, etc.

      1. Eric Gelber

        And, regardless of the precise accuracy of data on the incidence of wrongful application of the death penalty, there is no denying that it happens. That’s reason enough to oppose capital punishment.

  2. Dudley Sharp

    My rebuttal to all Committee positions.
    1) California’s death penalty is, extremely, limited now, as is legally and rationally, obvious,  and is, constitutional. The California Supreme Court has not reviewed the “broadness” issue, because it does not need to. Also, obvious. Somehow those noted prosecutors are unaware.
    2) “Geography” is, usually, a product of where the most capital murders are found, as it should be. In California,  as elsewhere, it is, also, a product of some prosecutors seeking the death penalty, with others not. Normal. Prosecutorial discretion is the reason why and is, clearly, constitutional. 
    3) It is doubtful that the Committee can establish any racial /ethnic bias in death penalty sentencing (1,2). There is bound to be discrepancies , based within race/ethnicity, because all different races/ethnicities have, often, wildly different  involvement is capital cases, by murderers and their victims (1,2. Here are the stats, nationally:
    a) White murderers are twice as likely to be executed as are black murderers and are executed at a rate 41% faster than black death row inmates (2).
    b)  Race, ethnicity and crime statistics.  By far, the largest percentages of death row inmates are convicted of robbery/murder and rape/murder.

    For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape (1)

    For the Hispanic- White comparison, the Hispanic level is 4.0 times greater than the White level for homicide, 3.8 times greater for robbery, 2.8 times greater for rape (1)

    For the Hispanic–Black comparison, the Black level is 3.1 times greater than the Hispanic level for homicide, 4.1 times greater for robbery, 2.4 times greater for rape (1)

    The Committee’s idiocy is on full display, here:

    It states: “Though only accounting for 6.5 percent of California’s population, “over one third of people on death row in the state are Black.” Likewise, despite making up less than half of homicide arrests between 2005 and 2019, all eight of those sentenced to death in California in 2018 and 2019 were Latinx.”

    The Committee is unaware that it is not population counts which determines sentencing, but criminal activity.  Really. They are that clueless. It is surprising that the Committee doesn’t scream that men are 50% of the general population, but 90% of the prison population. When will the Committee declare that women must be made 50% of the prion population? Soon, I am sure.

    A rebuttal of all the Committee’s other race/ethnicity commentary, here. (2)

    4)  Apparently, the committee is unaware that, for very good reason,  there is not a constitutional requirement “to instruct on reasonable doubt” and require unanimity, in all of the different sections within the penalty phase.

    Of course, Gov. Newsom and the Committee seem unaware that had those practices been unconstitutional, the courts would have found that, which none of them have, for decades.

    5) The Committee seems totally oblivious to the meaning of this judicial opinion:

    “(S)systemic delay has made execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose; life in prison, with the remote possibility of death.”

    The meaning is that Ca appellate judges are acting in a, highly, irresponsible manner, in huge delays in death penalty cases.  This has been known for decades, in California, and is no surprise.  Instead of 25 years of appeals, it would be responsible, to have 7 year average, of appeals, prior to execution, as with the 113 executions, in Virginia, since 1976.

    Such a responsible protocol is, precisely, what that opinion is recommending. The Committee is oblivious.

    6) Proportionality review is, obviously, not constitutionally required and is a way to not impose any sanctions on any criminals. For example, nationally, rape cases can get punished with probation or a life sentence and, everything in between. Therefore, huge numbers of those cases would be thrown out by proportionality constraints, which is why the vast majority of states do not have them, should not have them and why they are not constitutionally required. It would be insane.

    If one uses fact and reason ( sorry Committee), it is easy to note, that with only two eligible sanctions, LWOP or the death penalty, the proportional differences are slim to none, as many anti death penalty folks claim that LWOP is, actually, a death sentence and that LWOP is, actually, harsher than the death penalty – both very common pronouncements by anti death penalty folks, which may make them too inconvenient for the Committee to mention.

    Ignorantly, of course, the Committee states: “This is stark contrast to the proof of dis proportionality in multiple cases, in which an accomplice that was not directly responsible for a murder was sentenced to death when the defendant directly responsible for the murder received a lower sentence.”
    All cases, defendants, prosecutors, defense counsel, facts, judges and jurors are different, in every case, which makes those types of outcomes a guarantee, as everyone, but the Committee,  knows, The two sanctions – LWOP and death – are both, the most severe sanctions for the most severe crimes. Proportional.
    The best way to get rid of those type of cases, as the Committee wants, which is not necessary, but  . . .  often the “dis proportionality”  is based upon one or two jurors, voting against the death penalty, therefore one murderer, within the same crime,  may get death the other LWOP.
    Allow a 9-3 or 8-4 juror vote, with the higher proportion becoming the given sentence, as the Committee seems to prefer. 
    That is much more fair, proportional and democratic than it is to allow one vote (8%)  to overturn 11 votes (92%), clearly the least proportional, most undemocratic vote outcome within the US. Evidently, the Committee is blind to this.
    I’ll finish my review of this non nonsensical  article, later.

    1)  See Paragraph 7, here:
     
    RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
    http://prodpinnc.blogspot.com/2012/07/rebuttal-death-penalty-racism-claims.html

    2) RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS, http://prodpinnc.blogspot.com/2012/07/rebuttal-death-penalty-racism-claims.html

    1. Dudley Sharp

      CONTD

      The Committee appears to be allergic to fact checking/vetting/research.

      Committee: “More than 85 people on death row have yet to receive habeas counsel for more than 20 years.”

      As reviewed, that is how irresponsible the judges are in Ca. The Committee, as usual, forgets to lay the blame where it belongs, with management, not the death penalty.

      Committee: “This is a critical failure of inclusion, excluding people who have suffered any disabilities as an adult.”

      Ibid. So true, but the Committee fails to acknowledge that such issues are addressed pre trial, trial, within appeals and within executive considerations of pardon and commutation.

      Committee: “While Roper sets a restriction at 18, research shows that the same qualities that conclude minors as ineligible for the death penalty– such as a “vulnerability or susceptibility to ‘negative influences’” and a “underdeveloped sense of responsibility”– also characterize young adults.”

      We all know that the some 99.99%%of people, age 11-30, are very well aware that rape and murder are a very bad thing, the reason that nearly 100% of those aged 11-30 do not commit capital murder, even with peer pressure, as the evidence shows.

      I am sure the Committee will find that enlightening.

      Committee” After significant research, the American Bar Association, the American Psychiatric Association, the National Alliance on Mental Illness, and Mental Health America have suggested against the use of the death penalty against those with mental illnesses, as “this population simply does not have the requisite moral culpability.”

      Mental illnesses vary, a great deal, by category and severity, with many being fully culpable, legally, mentally and psychologically, as all of those groups know, and as , currently, examined, pre trial, trial, within appeals and executive review, for pardon or commutation, with the Committee being ignorant, again?!

      Committee: “The state has also been responsible for sentencing people with chronic childhood trauma to death. According to Committee researchers, more than a majority of individuals currently on death row have experienced severe childhood trauma and abuse.”

      All types of trauma are used for mitigation in all cases, now, pre trial, trial, within appeals and within executive review, for pardon or commutation, with the Committee ignorant, again?!

      Committee: “(In California) Five innocent men were sentenced to death row, serving a combined total of 87 years . . . ”

      The actual innocent are found guilty in all categories of crimes and punishments, with the death penalty being the most likely to find that and reverse it, than for any other sanction, as the death penalty has super due process.

      From 70-83% of the alleged “innocent” and “exonerated” are not such tings, as has been well known, since 2000 (1). I suspect the Committee is clueless.

      Committee “Since 1973, 156 people have been exonerated within the United States.”

      Ibid. That is absolute, total hogwash. If the Committee has any interest, please learn to fact check/vet/research (1)

      Committee: “In 2014, University of Michigan law professor, Samuel Gross, and several other researchers, determined that about four percent of individuals sentenced to death row were innocent. Following Gross’s analysis, 28 people in California would currently be innocent.”

      Total Nonsense (1).

      Committee: “Criminologists found the leading cause of false convictions to be eyewitness misidentification (photo arrays, in-court identifications, and live line-ups), which occurs in about 72 percent of DNA exoneration cases.”

      How many of the “innocent” by DNA are frauds(1)? Maybe the Committee will fact check/vet/research? Unlikely.

      Committee “And, according to the Legislative Analyst’s Office, in 2016, eliminating the death penalty in California would help the state save over $150 million per year.”

      Total nonsense, as detailed (2).

      Committee: “Professor Paula Mitchell and Ninth Circuit Judge Arthur Alarcon did extensive research to determine that continuing the death penalty in the state, through 2013-2050, would cost taxpayers over $5 billion to $7 billion more than the cost of life without possibility of parole (LWOP) cases.”

      Complete nonsense, as already reviewed (2). The Committee appears to be allergic to fact checking/vetting/research.

      Committee “In response to reducing the costs of the death penalty, Proposition 66 was passed, these efforts were short-lived. Those in support of this proposition argued that swift executions, after five to 10 years of confinement, would help reduce the costs of inmates’ meals and healthcare needs.”

      Again, the Committee revels in ignorance. With an average 7 1/2 years of appeals, prior to execution, it is likely that the death penalty would save costs over LWOP in California (2), with lifers costing $70,000-$170,000/yr, plus huge geriatric costs, both detailed (2), for an additional 40 years of incarceration.

      Committee: “However, there are several other costs that this proposition failed to address. These costs include trial, appellate, federal habeas, and prison costs.”

      As usual, the Committee seems unaware that the proposition, intentionally, did not address those issues.

      Ugh.

      Committee: “Further, Individuals sentenced to death row can be estimated to wait more than 30 years to move through all phases of their post-conviction review. Most often, people die before their appeal process is completely reviewed.”

      Not the death penalty’s fault – managements – See Prop. 66. Hello. Funny how other states seem to manage this well, but Ca is, completely, incompetent.

      Committee:”As a result of the “ineffectiveness” of counsel, most cases are ultimately overturned and taxpayer dollars continue to be thrown at the problem.”

      Only 16% of Ca death row cases are overturned (1973-2013). How could the majority of cases (51%) be overturned by ” ‘ineffectiveness’ of counsel”? (source, Table 17, https://www.bjs.gov/content/pub/pdf/cp13st.pdf,

      Getting updated numbers)

      Committee: “The death penalty is not very common internationally, with the penalty either being formally abolished or never in law in 106 nations. The majority of the executions take place in China, Iran, Saudi Arabia, Iraq, and Egypt.”

      A wonderful democracy, as the US, is not very common, internationally, with the US retaining the death penalty, based within justice.

      The Committee appears to be allergic to fact checking/vetting/research.

      The “Exonerated”/”Innocent” Frauds
      71-83% Error Rate in Death Row “Innocent” Claims, Well Known Since 2000

      from: Dudley Sharp, independent researcher, pro death penalty expert, former opponent, 832-439-2113, CV upon request

      The “Exonerated”/”Innocent” Frauds

      1) Deception: The DPIC “Exonerated”/”Innocence” List
      (see fact checking/vetting model-use it)
      https://prodpinnc.blogspot.com/2019/09/deception-dpic-exoneratedinnocence-list.html

      Death Row, “Exonerations”, Media & Intentional Fraud
      https://prodpinnc.blogspot.com/2019/06/death-row-exonerations-intentional-fraud.html

      The Innocent Frauds: Standard Anti Death Penalty Deception
      https://prodpinnc.blogspot.com/2013/04/the-innocent-frauds-standard-anti-death.html

      How many DNA “exonerations” are guilty?
      Section (3) within
      Death Row, “Exonerations”, Media & Intentional Fraud
      https://prodpinnc.blogspot.com/2019/06/death-row-exonerations-intentional-fraud.html

      The 4.1% “Innocent” on Death Row: More Nonsense
      https://prodpinnc.blogspot.com/2015/04/the-41-innocent-on-death-row.html

      The Death Penalty/Executions Saving More Innocents

      The Death Penalty: Saving More Innocent Lives
      http://prodpinnc.blogspot.com/2013/10/the-death-penalty-do-innocents-matter.html

      Deterrence, Death Penalties & Executions
      https://prodpinnc.blogspot.com/2019/04/deterrence-death-penalties-executions.html

      2) Death Penalty Costs: California
      https://prodpinnc.blogspot.com/2012/08/death-penalty-costs-california.html

  3. Eric Gelber

    The Committee is unaware that it is not population counts which determines sentencing, but criminal activity.

    This doesn’t acknowledge the possibility that, other things being equal, there is implicit bias in sentencing based on such variables as race, ethnicity, gender, etc.

    Descriptors, such as “idiocy, “oblivious,” “ignorantly” to characterize opposing viewpoints marks the author as a zealous, non-objective advocate rather than a serious analyst of available information and data. I’m sure someone with the time and inclination would be able to respond to the author’s clearly biased analysis.

      1. Ron Oertel

        “… the author’s clearly biased analysis” [Referring to Mr. Sharp, not the author of the original article.]

        Glad that you cleared that up.  Since other than that, there’s never any bias on here. 

        Nothing but evidence-based data and science, normally presented. 🙂

  4. Dudley Sharp

    To all respondents:

    Response to Eric Gelber:

    I addressed all the Committee issues you mentioned, throughout, PRIOR to your comments.

    You, intentionally, chose not to read then, PRIOR to your response. Typical internet nonsense, willful ignorance.

    Of course I am biased. Everyone is. There is nothing wrong with bias if it is based within fact checking/vetting/research.

    My bias is in favor of research,  for victims, for truth and accuracy and against rapist and murderers, deception and fraud. That works, for me.

    When bias is based within willful ignorance, as with you, it is a problem and you admit to that problem, yourself with :  I’m sure someone with the time and inclination would be able to respond to the author’s clearly biased analysis”

    Your claim “clearly biased analysis” is based, only , within your admitted willful ignorance.  These are the types of idiocy throughout the internet, that you, and so many others, represent.

    If you have a case of my research being non-objective, show me. I will respond, herein. Based upon your nonsense, I doubt you will and I doubt you can.

    Eric wirtes: “Opposition to the death penalty is not based solely on statistical evidence or economics. There is also ethical/moral opposition to state-sanctioned taking of human life.”

    I am aware. I was, only, responding to the Committee’s nonsense, which left out the ethical/moral debate.

    I am a former anti death penalty guy, who switched positions based within the moral/ethical considerations, supported by factual confirmations. Some here (1). Many many more, if you follow the footnotes, therein.

    Eric writes:”regardless of the precise accuracy of data on the incidence of wrongful application of the death penalty, there is no denying that it happens. That’s reason enough to oppose capital punishment.”

    Eric, my guess is that about 500,000 people die, every day, worldwide, because of screw ups, by government regulated enterprises, such as medical care, pharmacuticals, public swimming pools, day care, construction, transportation, escape/release of known criminals and on and on and on.

    For example, about 400,000 Americans die, every year, due to medical misadventures, just as about the same numbers have been murdered, in the US, 1973-2020, by those know criminals that we have allowed to harm, again, just to name two, in one country.

    Since only one wrongful death appears enough for you to ban executions, what other government regulated programs  would you abolish? As I detailed, in my prior comments and footnotes, as well as the footnote, herein,  I find it a rational and factual reality that the death penalty/executions save many more innocent lives, than could every be taken in execution.

    1) The Death Penalty: Justice and Saving More Innocents, http://prodpinnc.blogspot.com/2013/05/the-death-penalty-justice-saving-more.html

    1. Eric Gelber

      Eric, my guess is that about 500,000 people die, every day, worldwide, because of screw ups, by government regulated enterprises, such as medical care, pharmacuticals, public swimming pools, day care, construction, transportation, escape/release of known criminals and on and on and on.

      Big difference between deaths due to unintentional and negligent causes, which can  often be charged as crimes, and capital punishment, which is planned and calculated state homicide. I find the latter to be barbaric—regardless of what your data show.

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