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.
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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