Costs of Capital Punishment in California: Will Voters Choose Reform this November?

Loyola of Los Angeles Law Review Loyola of Los Angeles Law Review

Volume 46

Number 0

issue.1

Article 1

9-10-2012

Costs of Capital Punishment in California: Will Voters Choose Costs of Capital Punishment in California: Will Voters Choose

Reform this November? Reform this November?

Judge Arthur L. Alarcón

Paula M. Mitchell

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Judge Arthur L. Alarcón & Paula M. Mitchell,

Costs of Capital Punishment in California: Will Voters

Choose Reform this November?

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COSTS OF CAPITAL PUNISHMENT IN

CALIFORNIA: WILL VOTERS CHOOSE

REFORM THIS NOVEMBER?

Judge Arthur L. Alarcón & Paula M. Mitchell*

In a 2011 study, the authors examined the history of California’s death-

penalty system to inform voters of the reasons for its extraordinary

delays. There, they set forth suggestions that could be adopted by the

legislature or through the initiative process that would reduce delays in

executing death-penalty judgments. The study revealed that, since 1978,

California’s current system has cost the state’s taxpayers $4 billion

more than a system that has life in prison without the possibility of

parole (“LWOP”) as its most severe penalty. In this article, the authors

update voters on the findings presented in their 2011 study. Recent

studies reveal that if the current system is maintained, Californians will

spend an additional $5 billion to $7 billion over the cost of LWOP to

fund the broken system between now and 2050. In that time, roughly

740 more inmates will be added to death row, an additional fourteen

executions will be carried out, and more than five hundred death-row

inmates will die of old age or other causes before the state executes

them. Proposition 34, on the November 2012 ballot, will give voters the

opportunity to determine whether they wish to retain the present broken

death-penalty system—despite its cost and ineffectiveness—or whether

the appropriate punishment for murder with special circumstances

should be life in prison without the possibility of parole.

* Judge Arthur L. Alarcón is a Senior Judge on the U.S. Court of Appeals for the Ninth

Circuit. Paula M. Mitchell is an adjunct professor of law at Loyola Law School Los Angeles,

where she teaches Habeas Corpus and Civil Rights Litigation. They co-wrote Executing the Will

of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion Dollar

Death Penalty Debacle, 44 LOY. L.A. L. REV. S41 (2011), which was published in June 2011.

S2 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................... S4

II. LEGISLATIVE RESPONSE: CALIFORNIA SENATE BILL (SB) 490–

STALLED IN COMMITTEE .......................................................... S5

III. DIRECT DEMOCRACY IN ACTION: THE SAFE CALIFORNIA

ACT BALLOT INITIATIVE ........................................................ S10

A. Signatures Gathered, Initiative Qualified, Challenge

Denied ............................................................................. S11

B. Early Endorsements for the SAFE California Act ........... S12

1. Los Angeles Times Endorsement ............................... S12

2. Other Early Endorsements ......................................... S13

IV. THE NATIONAL REGISTRY OF EXONERATIONS ........................... S13

V. COSTS UPDATE ........................................................................... S14

A. Costly Delays ................................................................... S14

1. David Murtishaw: Thirty-Two Years on Death

Row, Died of a Heart Attack on November 22,

2011 ........................................................................... S15

2. Dennis Lawley: Twenty-Three Years on Death

Row, Died of Natural Causes on March 11, 2012 ..... S17

3. Ralph International Thomas: Conviction and

Sentence of Death Overturned After Twenty-Six

Years on Death Row .................................................. S19

B. New Projections: Death Penalty Will Cost $5 Billion

to $8 Billion More Than LWOP (2013–2050) ............... S20

1. Pretrial Investigation Costs & Trial Costs ................. S21

2. Plea Bargaining .......................................................... S22

3. Costs of Incarceration ................................................ S23

4. Costs of Lethal Injection Litigation: More Money

Wasted ....................................................................... S25

a. California federal court: Lethal injection

litigation ............................................................... S25

b. California Court of Appeal: Petition seeking

immediate executions .......................................... S27

c. District of Columbia federal court: FDA lethal

injection drug litigation ....................................... S27

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S3

d. Los Angeles County: Motions seeking

immediate executions with one-drug injection .... S29

C. Total Costs: Updated........................................................ S30

VI. PROPOSITION 34, THE SAFE CALIFORNIA ACT, ON THE

NOVEMBER 6, 2012 BALLOT .................................................. S31

A. Legislative Analyst’s Office Preliminary Analysis,

October 2011 ................................................................... S31

B. LAO’s Final Analysis, July 2012..................................... S33

VII. CONCLUSION ............................................................................ S34

S4 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

I. INTRODUCTION

On November 6, 2012, California voters will decide whether to

replace the death penalty with the sentence of life in prison without

the possibility of parole (“LWOP”) as the state’s most severe

punishment by way of a ballot initiative entitled the Savings,

Accountability, and Full Enforcement (SAFE) California Act,

officially designated Proposition 34.

In view of the SAFE California

Act initiative and recent studies further assessing the true costs borne

by taxpayers to fund California’s broken death-penalty system, we

write here to update voters on the findings presented in our article,

Executing the Will of the Voters?: A Roadmap to Mend or End the

California Legislature’s Multi-Billion Dollar Death Penalty Debacle

(“Article”), published last year.

Our updated analysis reveals that

maintaining the current dysfunctional death-penalty system in

California from now until 2050 will cost taxpayers a minimum of an

additional $5.4 billion, and possibly as much as an additional $7.7

billion, over the cost of LWOP.

During that time, approximately

. Qualified Statewide Ballot Measures, CAL. SECRETARY OF STATE,

http://www.sos.ca.gov/elections/ballot-measures/qualified-ballot-measures.htm (last visited

Aug. 13, 2012). The Attorney General of California has prepared the following title and summary

of the chief purpose and points of the proposed measure:

DEATH PENALTY REPEAL. INITIATIVE STATUTE.

Repeals death penalty as maximum punishment for persons found guilty of murder and

replaces it with life imprisonment without possibility of parole. Applies retroactively to

persons already sentenced to death. Requires persons found guilty of murder to work

while in prison, with their wages to be applied to any victim restitution fines or orders

against them. Creates $100 million fund to be distributed to law enforcement agencies

to help solve more homicide and rape cases.

Id.

. Arthur L. Alarcón & Paula M. Mitchell, Executing the Will of the Voters?: A Roadmap

to Mend or End the California Legislature’s Multi-Billion Dollar Death Penalty Debacle, 44

LOY. L.A. L. REV. S41 (2011) [hereinafter Executing the Will of the Voters?].

. The conservative estimate is based on the assumption that it costs $40,000 more per

year, per inmate, to house an inmate on death row than the annual cost to house an LWOP inmate,

as calculated in a recent study by Trisha McMahon and Tim Gage that was commissioned by

Death Penalty Focus. Trisha McMahon & Tim Gage, Replacing the Death Penalty Without

Parole: The Impact of California Prison Costs 10 (June 14, 2012) (unpublished study) (on file

with authors). Gage is the former director of the California Department of Finance and served as

the fiscal advisor to both houses of the California legislature; he has more than twenty years’

experience in California budgeting and fiscal analysis. Tim Gage, BLUE SKY CONSULTING

GROUP, http://www.blueskyconsultinggroup.com/tim-gage/ (last visited Aug. 13, 2012).

McMahon has her master’s degree from U.C. Berkeley’s Goldman School of Public Policy and

has experience as a research analyst for the Democratic Party of Georgia. Trisha McMahon,

BLUE SKY CONSULTING GROUP, http://www.blueskyconsultinggroup.com/trisha-mcmahon (last

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S5

740 more inmates will be added to death row and an additional

fourteen executions will be carried out (at the State’s current rate of

execution), while more than five hundred of those inmates will die

on death row of natural causes or suicide before the state executes

them.

II. LEGISLATIVE RESPONSE:

CALIFORNIA SENATE BILL (SB) 490–STALLED IN COMMITTEE

In our Article, we pointed out that California’s costly and

ineffective death-penalty system was created largely by the state

legislature’s failure to take any steps over the last three decades to

eliminate unnecessary and wasteful delay and to reform the system.

Our research revealed that the death penalty had cost California

taxpayers $4 billion since 1978 and resulted in only thirteen

executions.

The only legislator who responded to our criticisms

about the lack of legislative leadership on this issue was Senator

Loni Hancock (D-Oakland), Chair of the Senate Public Safety

Committee and the Senate Budget and Fiscal Review

Subcommittee,

which oversees all funding for the prison system.

On June 20, 2011, Senator Hancock announced that she was

introducing legislation to replace the death penalty in California with

visited Aug. 14, 2012). The high-end figure assumes that the housing costs are as stated in our

Article and calculates the death row population from 2013 to 2050 based on the mortality rate

schedules supporting McMahon and Gage’s research. See Executing the Will of the Voters?,

supra note 2, at S105; McMahon & Gage, supra, at 3. The estimates of $5.4 billion to $7.7 billion

do not take into account any rate of inflation.

. McMahon and Gage’s mortality tables estimate that by 2050 there will be 813 inmates

on death row, and that over that time, 615 prisoners will die on death row before their sentences

are carried out. See Trisha McMahon & Tim Gage, Death Row Model (June 2012) (unpublished

statistical model) (on file with authors), analyzed in McMahon & Gage, supra note 3. Their

model, however, does not account for those inmates who will leave death row due to meritorious

claims on appeal. Because there have been approximately one hundred such successful appeals

resulting in prisoners being removed from death row over the last thirty-four years, we estimate

that there will be one hundred similarly successful appeals over the next thirty-seven years

(2013–2050). See Executing the Will of the Voters?, supra note 2, at S53, S55. 724 (current

population) + 740 (added between now and 2050) = 1,464. 1,464 – 14 (executions) = 1,450.

1,450 – 100 (successful appeals) = 1,350. 1,350 – 813 (number of inmates on death row in 2050)

= 537 (number of death-row inmates who will die of natural causes or suicide before being

executed). See id; McMahon & Gage, Death Row Model, Death Row Model, supra.

. Executing the Will of the Voters?, supra note 2, at S51.

. See Senator Hancock’s Committee Membership, SENATOR LONI HANCOCK,

http://sd09.senate.ca.gov/committees (last visited Aug. 26, 2012).

S6 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

LWOP.

Senator Hancock stated, “Capital punishment is an

expensive failure and an example of the dysfunction of our

prisons . . . . California’s death row is the largest and most costly in

the United States. It is not helping to protect our state; it is helping to

bankrupt us.”

She argued that “[t]oday we’re not tough on crime;

we’re tough on the taxpayer. Every time we spend money on failed

policies like the death penalty, we drain money from having more

police officers on the street, more job training, more education, more

of the things that would truly make for safer communities.”

On July 7, 2011, Senator Hancock presented to the Assembly

Public Safety Committee SB 490, a bill to place a measure on the

November 2012 ballot asking voters whether the death penalty

should be replaced with LWOP.

Section 1 of that bill provided that:

(a) It is the intent of the Legislature to replace the

death penalty with permanent imprisonment.

(b) The death penalty costs three times as much as

permanent imprisonment.

Angeles Law Review found that California spends $184

million a year on the death penalty.

(d) The same study found that Californians have spent

more than $4 billion on capital punishment since it was

reinstated in 1978, or about $308 million for each of the 13

executions carried out since reinstatement.

(e) The millions of dollars spent on the death penalty

could be used to make our communities safer by funding

other public safety programs.

The committee heard testimony in support of SB 490 from

Jeanne Woodford, former warden of San Quentin, former

undersecretary and director of the California Department of

. Press Release, Senator Loni Hancock, Hancock to Introduce Legislation to Ban Death

Penalty (June 21, 2011), http://sd09.senate.ca.gov/news/2011-06-21-hancock-introduce

-legislation-ban-death-penalty.

. Id.

. Death Penalty: July 7, 2011 Hearing on SB 490 Before the Assemb. Pub. Safety Comm.,

2011 Leg., 2011–12 Sess. (Cal. 2011) (statement of Sen. Loni Hancock) (video available at

www.calchannel.com).

. SB 490, 2011–12 Sess. (Cal. 2011) (italics added).

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S7

Corrections and Rehabilitation (CDCR), and current executive

director of Death Penalty Focus, a national nonprofit organization;

Donald Heller, one of the authors of California’s death penalty law in

1978 and current supporter of replacing the law; and Judy Kerr,

spokesperson for California Crime Victims for Alternatives to the

Death Penalty.

On July 11, 2011, the Assembly Public Safety

Committee passed the bill by a vote of five to two and sent it to the

Assembly Appropriations Committee.

On August 17, 2011, the Assembly Appropriations Committee

held a public hearing on SB 490.

“If the [Appropriations

Committee] approves a bill, it usually moves to the Floor.”

The

briefing prepared for the committee included a detailed accounting of

the potential savings associated with eliminating the death penalty.

The committee heard testimony in support of the bill from former

two-term Attorney General John Van de Kamp, who also served two

terms as Los Angeles County District Attorney and served as the

Chair of the California Commission of the Fair Administration of

Justice (CCFAJ), which the State Senate appointed to investigate

California’s death penalty.

Van de Kamp testified about the

findings in a report issued by the CCFAJ (“Final Report”)

that

. Id. Registered supporters of the bill include American Civil Liberties Union, California

Catholic Conference, California Public Defenders Association, Conference of California Bar

Associations, Friends Committee on Legislation of California, Cedilla Community Synagogue,

and one private individual. CAL. ASSEMB. COMM. PUB. SAFETY, ANALYSIS OF SB 490, SB 490,

2011–12 Sess., at 11 (July 5, 2011), http://info.sen.ca.gov/pub/11-12/bill/sen/sb_0451-0500

/sb_490_cfa_20110706_100026_asm_comm.html.

. Press Release, Senator Loni Hancock, Death Penalty Ban Passes First Legislative Test;

Approved by Assembly Committee (July 7, 2011), http://sd09.senate.ca.gov/news/2011-07-07

-death-penalty-ban-passes-first-legislative-test-approved-assembly-committee.

. Press Release, Senator Loni Hancock, SB 490 (Death Penalty) Withdrawn from

Consideration (Aug. 25, 2011), http://sd09.senate.ca.gov/news/2011-08-25-sb-490-death-penalty

-withdrawn-consideration.

. Glossary of Legislative Terms, CAL. STATE ASSEMBLY, OFFICE OF THE CHIEF CLERK,

http://clerk.assembly.ca.gov/clerk/BILLSLEGISLATURE/glossary.asp?alist=F&Valid=0&Target

=1 (last visited Aug. 9, 2012).

. CAL. ASSEMB. COMM. ON APPROPRIATIONS, ANALYSIS OF SB 490, SB 490, 2011–12

Sess., at 1 (Aug. 15, 2011), http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0451-0500/sb_490

_cfa_20110816_164640_asm_comm.html.

. Death Penalty: Hearing on SB 490 Before the Assemb. Appropriations Comm., 2011

Leg., 2011–12 Sess. (Cal. 2011) [hereinafter Appropriations Committee Hearing] (statement of

John Van de Kamp) (video available at www.calchannel.com).

. CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, FINAL REPORT AND

RECOMMENDATIONS ON THE ADMINISTRATION OF THE DEATH PENALTY IN CALIFORNIA 80–81

S8 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

chronicled in detail the numerous flaws in the administration of

California’s death penalty and described how those defects have

created the current dysfunctional system.

Professor Laurie

Levenson, the William M. Rains Fellow and David W. Burcham

Chair in Ethical Advocacy at Loyola Law School, also testified in

support of the bill.

She urged the committee to approve the bill

because the current system is not working and is too costly.

Additionally, numerous local, regional, national, and international

supporters of SB 490 attended the hearing to voice their support for

the bill.

Fewer people appeared before the committee to voice their

opposition.

One opponent, Cory Salzillo, the director of legislation

for California District Attorneys Association, testified that

eliminating the death penalty would result in added costs because,

unless prosecutors can use the threat of the death penalty to secure

guilty pleas from defendants, no defendant will ever plead guilty to

(Gerald Uelmen ed., 2008) [hereinafter FINAL REPORT], available at http://www.ccfaj.org

/documents/CCFAJFinalReport.pdf.

. Id.

. Id. (statement of Laurie L. Levenson).

. Id.

. Appropriations Committee Hearing, supra note 17. Supporters included Connie

Carmona, mother of Arthur Carmona, wrongfully convicted; Gloria Killian, exoneree; the

NAACP; Franky Carrillo, exoneree on behalf of himself and the Loyola Law School Center for

Restorative Justice; Mothers to Prevent Violence; Denise Foderaro Quattrone, wife of exoneree;

the ACLU; Jeanne Woodford, former warden of San Quentin; Michael Mitchell, retired prison

warden; California Crime Victims Assistance Association; the National Association of Social

Workers, California Chapter; California Catholic Conference; Friends Committee on Legislation

in California; California Crime Victims for Alternatives to the Death Penalty; California Public

Defenders Association; Lutheran Office of Public Policy; Conference of California Bar

Associations; Al Baker Center for Human Rights; Death Penalty Focus; Amnesty International &

World Coalition Against the Death Penalty; California Attorneys for Criminal Justice; and the

City of Berkeley. Id.; see also CAL. ASSEMB. COMM. ON APPROPRIATIONS, supra note 16, at 12

(noting selected supporters of the bill).

. Registered opponents of the bill included Anaheim Police Association; Association for

Los Angeles Deputy Sheriffs; Association of Orange County Deputy Sheriffs; California

Association of Highway Patrolmen; California District Attorneys Association; California

Fraternal Order of Police; California Peace Officers' Association; Chico Police Officers'

Association; Crime Victims United of California; Cypress Police Officers' Association; Imperial

County Deputy Sheriff's Association; La Habra Police Association; Laguna Beach Police

Employees’ Association; Long Beach Police Officers Association; Los Angeles South Chapter of

the Peace Officers Research Association of California; Orange County Chapter of the Peace

Officers Research Association of California; Peace Officers Research Association of California;

Riverside Sheriffs' Association; Sacramento County Deputy Sheriffs Association; Santa Ana

Police Officers Association; and three private individuals. Appropriations Committee Hearing,

supra note 17; CAL. ASSEMB. COMM. PUB. SAFETY, supra note 12, at 12–13 (noting selected

opponents of the bill).

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S9

murder but will instead insist on going to trial, which Salzillo

claimed would be costly to the state.

We accepted an invitation by Senator Hancock to discuss the

findings in our Article before the Senate Public Safety Committee at

an informational hearing on August 23, 2011.

On August 25, 2011,

Senator Hancock withdrew SB 490 from consideration before a vote

was held “when she didn’t have the votes to get it out of the

Assembly Appropriations Committee.”

Once again, the state

legislature has failed to address this ongoing crisis or offer any

explanation for its continued intransigence on reforming this state’s

dysfunctional death-penalty system. Even with the information

revealed in our Article about the true costs of the state’s death-

penalty system—information that state authorities had claimed was

incapable of being calculated—the legislature still refuses to stop the

wasteful spending of the state’s limited resources on a death-penalty

system that appears to be broken beyond repair. The legislature’s

refusal to act makes it clearer than ever that the voters will have to

change the law through the initiative process if they wish to remedy

the state’s broken system.

. Appropriations Committee Hearing, supra note 17 (statement of Cory Salzillo). Salzillo

stated that

there are numerous reasons that there will be slippage in the cost savings. The most

significant of which is probably the fact that we lose the plea bargain effect. If there’s

no death penalty, there’s no reason anybody pleads guilty to murder. . . . The minute

this bill . . . pass[es], . . . nary a single person will ever plea to LWOP again because

why would you?

Id. Other opponents who voiced opposition to SB 490 at the hearing included the Crime Victims

Association; the Police Chiefs’ Association; Phyllis Loya, mother of a murdered police officer;

the California Correctional Peace Officers Association; Curtis Hill, on behalf of the California

State Sheriffs’ Association; and, a representative who spoke on behalf of the Association for Los

Angeles Deputy Sheriffs Association, the Los Angeles Police Department, the Riverside Sheriffs’

Association, the Long Beach Police Officers’ Association, the Santa Ana Police Officers

Association, the Orange County Deputy Sheriffs’ Association, Los Angeles Professional Police

Officers, the Sacramento County Deputy Sheriffs’ Association, the California Fraternal Order of

Police, and the California Coalition of Law Enforcement Agencies. Id.

. See Death Penalty: Aug. 23, 2011 Hearing on SB 490 Before the Senate Pub. Safety

Comm., 2011 Leg., 2011–12 Sess. (Cal. 2011) (statements of Hon. Arthur L. Alarcón and Paula

M. Mitchell) (video available at www.calchannel.com); Press Release, Senator Loni Hancock,

The True Costs of the Death Penalty: Authors of Landmark Report to Appear Before the Public

Safety Committee (Aug. 22, 2011), http://sd09.senate.ca.gov/news/2011-08-22-true-costs-death

-penaltyauthors-landmark-report-appear-senate-public-safety-committe.

. Micaela Massimino, AM Alert: Death Penalty Opponents Launch Ballot Initiative,

SACRAMENTO BEE CAPITOL ALERT (Aug. 29, 2011, 6:00 AM), http://blogs.sacbee.com

/capitolalertlatest/2011/08/am-alert-death-penalty-ballot-initiative-california.html.

S10 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

III. DIRECT DEMOCRACY IN ACTION:

THE SAFE CALIFORNIA ACT BALLOT INITIATIVE

Immediately after SB 490 was shelved, supporters of the bill

launched a ballot initiative of their own. On August 29, 2011, a

group called California Taxpayers for Justice unveiled the SAFE

California Act, an initiative that would replace capital punishment

with LWOP.

The initiative’s supporters include Jeanne Woodford,

the former warden of San Quentin State Prison who oversaw four

executions and is now the executive director of Death Penalty Focus;

Gil Garcetti, the former Los Angeles District Attorney who has

prosecuted dozens of death penalty cases; Gloria Killian, who spent

sixteen years in prison for a murder for which she was later

exonerated; and victim family member Judy Kerr, whose brother’s

killer is still at large.

Gil Garcetti commented that “[t]he death penalty in California is

broken, and it is unfixable. . . . How many of our citizens know that

46 percent of all murders and 56 percent of all rapes in the average

year in our state go unsolved? . . . The SAFE California Act will

prevent crimes . . . [and] will keep our families safer today.”

“Proponents of the initiative say that replacing the death penalty with

[LWOP] will free up money for local law enforcement, victim

compensation, and schools.”

Unsolved homicide statistics published by the California

Attorney General’s office indicate that 46 percent of homicide cases

in California are never resolved.

That means that over ten thousand

homicides that took place in California between 2000 and 2009

remain unsolved—about one thousand per year.

The rate for

unsolved reported rapes is higher at 56 percent.

The SAFE

. Id.

. Gil Garcetti, Press Conference by the SAFE California Campaign (Aug. 29, 2011) (video

available at http://www.youtube.com/watch?v=S5WJw6yi614).

. Massimino, supra note 26.

. See KAMALA D. HARRIS, CAL. DEP’T OF JUSTICE, HOMICIDE IN CALIFORNIA 2010, at 34

(2010), available at http://oag.ca.gov/sites/all/files/pdfs/cjsc/publications/homicide/hm10

/preface.pdf; see also Statistics by City and County, CAL. ATTORNEY GEN., http://ag.ca.gov

/cjsc/datatabs.php (making available state crime statistics) (last visited Aug. 26, 2012).

. See HARRIS, supra note 31, at 34.

. Unsolved Rapes & Murders, SAFE CALIFORNIA, http://www.safecalifornia.org

/facts/unsolved (last visited Aug. 9, 2012); see also Statistics by City and County, supra note 31.

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S11

California Act proposes to “use our scarce law enforcement

resources to bring more killers to justice and to protect our

families . . . [by setting] aside $30 million per year for three years to

solve open murder and rape cases, using the money saved from

replacing the death penalty to keep our families safe.”

A. Signatures Gathered, Initiative Qualified,

Challenge Denied

On March 1, 2012, the SAFE California Act campaign

announced that it had gathered and filed eight hundred thousand

petition signatures, more than enough to qualify for the November

ballot the first-ever statewide initiative to replace the death penalty

with LWOP.

On April 23, 2012, Secretary of State Debra Bowen’s

office confirmed that supporters of the campaign had submitted

petition signatures sufficient to qualify the measure for the

November ballot.

On May 14, 2012, an emergency petition

challenging the initiative was filed in the California Court of Appeal

for the Third District by Phyllis Loya, the mother of police officer

Larry Lasater, who was killed in the line of duty in April 2005 and

whose killer is currently on death row, and Michael Rushford, the

founder, president, and chief executive officer of Criminal Justice

Legal Foundation (CJLF), a pro-death-penalty organization.

The

emergency petition sought a peremptory writ of mandate directing

Secretary of State Bowen to remove the SAFE California Act from

the 2012 general election ballot and to award petitioners their costs

and attorney fees.

The petitioners, represented by the CJLF,

. Unsolved Rapes and Murders, supra note 33.

. Press Release, SAFE Cal. Campaign, SAFE California Campaign to Replace Death

Penalty Submits 800,000 Signatures to Qualify for November Ballot (Mar. 1, 2012),

http://www.safecalifornia.org/downloads/Signatures-Filing-PR-SAFE-CA-Campaign.pdf.

. Bob Egelko, Death Penalty Initiative Makes November Ballot, SF GATE (Apr. 24, 2012

4:00 AM), http://www.sfgate.com/politics/article/Death-penalty-initiative-makes-November-

ballot-3504431.php.; Jeanne Woodford, Epic Win: SAFE California Act to Replace the Death

Penalty Will Be on the November Ballot, SAFE CALIFORNIA (Apr. 23, 2012),

http://www.safecalifornia.org/news/blog/epic-win-safe-california-act-to-replace-the-death-

penalty-will-be-on-the-november-ballot.

. Petition for Writ of Mandate, Loya v. Bowen, No. DCA3-C071040 (Cal. Ct. App.

May 14, 2012).

. Biography of Michael D. Rushford, CRIM. JUST. LEGAL FOUND., http://www.cjlf.org

/about/bioMDR.htm (last visited Aug. 18, 2012).

. Petition for Writ of Mandate, supra note 37, at 3.

S12 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

claimed that the SAFE California Act violates the “single subject”

rule of the California Constitution, which requires that provisions of

an initiative be reasonably germane to one another and to the

initiative’s general purpose.

On May 30, 2012, the California Court

of Appeal for the Third District summarily denied the petition

without comment.

B. Early Endorsements for

the SAFE California Act

1. Los Angeles Times Endorsement

On May 21, 2012, the editorial board of the Los Angeles Times

publically endorsed the SAFE California Act and urged voters to

pass the initiative. The Times highlighted the case of Carlos DeLuna,

an inmate who many believed to be innocent and who was, “in all

likelihood, murdered by the State of Texas.”

“This should never

happen in California. In November, voters will have a chance to

ensure that it doesn’t,” the Times wrote.

The Times explained that “[o]rdinarily, this [editorial] page

doesn’t endorse ballot initiatives until shortly before an election, but

the SAFE California Act isn’t an ordinary ballot measure.”

As it

further elaborated:

It is the culmination of a movement that has been building

for many years to replace the death penalty with a sentence

of life without the possibility of parole. With one vote,

Californians can solve a host of problems bedeviling its law

enforcement system: the spiraling costs of incarceration and

appeals for death row inmates, the legal tangles over

methodology that have stalled executions in this state since

. Elisabeth Semel & Charles Sevilla, Is the SAFE Initiative Vote Safe?, DAILY J., June 5,

2012, at 6.

. Petition for Writ of Mandate, supra note 37, at 9–27.

. Order Denying Petition for Writ of Mandate, Loya v. Bowen, DCA3-C071040 (Cal.

App. Ct. May 30, 2012).

. Editorial, Yes on the SAFE California Act, L.A. TIMES (May 21, 2012), http://articles

.latimes.com/2012/may/21/opinion/la-ed-death-penalty-california-20120521. The Times cited to

an exhaustive analysis of the DeLuna case that was published online by the Columbia Human

Rights Law Review. Id. (citing James S. Liebman et al., Los Tocayos Carlos, COLUM. HUM. RTS.

L. REV., http://www3.law.columbia.edu/hrlr/ltc/ (last visited Aug. 30, 2012)).

. Id.

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S13

2006, and the unfairness built into a system in which

convicts are more likely to be sentenced to death if their

victims were white. And, more important, eliminating the

death penalty would end the risk that the hands of all

Californians will be stained with the blood of an innocent.

2. Other Early Endorsements

As of this writing, Proposition 34 has also received

endorsements from other media outlets, including the Contra Costa

Times, Daily Democrat, Desert Sun, Oakland Tribune, Paradise

Post, Pasadena Star-News, San Francisco Examiner, San Jose

Mercury News, San Mateo Times, Stockton Record, and Vallejo

Times-Herald.

Other supporters of Proposition 34 include 139

current and former law enforcement officers and agencies; 436

murder victims’ family members; 94 organizations and unions; 53

government bodies, elected officials, and candidates; 91 faith and

religious organizations, including the Catholic Bishops of California,

the Board of Rabbis of Northern California, the Islamic Shura

Council of Southern California, and the Episcopal Diocese of

California; 340 faith and community leaders; and 14 wrongfully

convicted men and women who have been released from prison after

serving sentences for crimes they did not commit.

IV. THE NATIONAL REGISTRY OF EXONERATIONS

On May 21, 2012, the same day that the Los Angeles Times’

editorial board endorsed the SAFE California Act, the University of

Michigan Law School and the Center on Wrongful Convictions from

Northwestern University launched a comprehensive database that

collects nationwide data about people who have been wrongfully

convicted of criminal conduct and later exonerated.

The National

. Id.

. Endorsements, SAFE CALIFORNIA, http://www.safecalifornia.org/about/endorsements

(last visited Sept. 5, 2012).

. Id.

. See About the Registry, NAT’L REGISTRY OF EXONERATIONS, http://www.law.umich.edu

/special/exoneration/Pages/about.aspx (last visited Aug. 23, 2012). One hundred forty death-row

inmates nationwide have been exonerated since 1973 while awaiting execution. Innocence: List of

Those Freed from Death Row, DEATH PENALTY INFO. CENTER, http://www.deathpenaltyinfo.org

/innocence-list-those-freed-death-row (last updated Jan. 23, 2012).

S14 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

Registry of Exonerations is the most comprehensive database of its

kind.

It provides detailed information about wrongful convictions

throughout the United States. The data documents 945 exonerations

since 1989.

It reveals that California is ranked second in the nation

with ninety-seven wrongful convictions (tied with Texas, also with

ninety-seven documented wrongful convictions), after Illinois, which

has 107 documented wrongful convictions.

Illinois replaced the

death penalty in 2011.

Since 1989, California has sentenced two men to death who

were later exonerated and released from prison: Troy Lee Jones, who

was exonerated in 1996 after spending fourteen years on death row,

and Oscar Morris, who was exonerated in 2000, after spending

seventeen years on death row.

In 2011 and 2012 alone, five

California men who were wrongfully convicted of murder were

exonerated and released from prison: Obie Anthony (sentenced to

LWOP), in prison from 1995 to 2011; Maurice Caldwell (sentenced

to twenty-seven years to life), in prison from 1991 to 2011; Francisco

Carrillo (sentenced to life), in prison from 1992 to 2011; Caramad

Conley (sentenced to LWOP), in prison from 1994 to 2011; and

Frank O’Connell (sentenced to twenty-five years), in prison 1985 to

2012.

These seven men spent a combined total of 130 years in

prison for crimes for which they were later exonerated. What these

exonerations reveal, in dramatic fashion, is that our system of

criminal justice is not infallible and is indeed capable of grave

injustices.

V. COSTS UPDATE

A. Costly Delays

Since publication of our Article last year, six more inmates have

died on California’s death row (three of natural causes and three by

. National Registry of Exonerations Released Today, NEW ENGLAND INNOCENCE

PROJECT (May 21, 2012), http://www.newenglandinnocence.org/2012/national-registry-of

-exonerations-released-today/.

. Exoneration Detail List, NAT’L REGISTRY OF EXONERATIONS,

http://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx (last visited Aug. 23, 2012).

. Id.

. 725 ILL. COMP. STAT. 5/119-1 (2011).

. Exoneration Detail List, supra note 51.

. Id.

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S15

suicide), bringing the total number of deaths by means other than

execution to eighty-four since 1978.

Examining the cases of David

Murtishaw, Dennis Lawley, and Ralph International Thomas

provides a graphic snapshot of some of the most serious flaws in

California’s death-penalty system, of why the appeals process takes

so long, and of what those long delays cost in terms of taxpayer

dollars and in compromising the integrity of our criminal justice

system.

1. David Murtishaw:

Thirty-Two Years on Death Row,

Died of a Heart Attack on November 22, 2011

On November 22, 2011, David Murtishaw died of a heart attack

after serving thirty-two years on California’s death row.

Murtishaw

was convicted and sentenced to death on April 27, 1979, for three

counts of first-degree murder and one count of assault with attempt

to commit murder.

Two years later, the California Supreme Court

reversed the death sentence on his direct appeal.

A second penalty-

phase trial was held in 1983, and Murtishaw was again sentenced to

death.

In 1989, the California Supreme Court upheld the death

sentence in Murtishaw’s second direct appeal.

Murtishaw filed

petitions for a writ of habeas corpus in state and federal courts.

On June 26, 2001, the Ninth Circuit Court of Appeals

determined that there were federal constitutional errors in

Murtishaw’s second penalty-phase trial because “a 1978 statute was

improperly applied during Murtishaw’s penalty retrial resulting in an

. Brandon Wilson, November 17, 2011 (suicide); David Murtishaw, November 22, 2011

(natural causes); Dennis H. Lawley, March 11, 2012 (natural causes); Frank Abilez, April 3, 2012

(natural causes); James Lee Crummel, May 27, 2012 (suicide); Kenneth Friedman, August 26,

2012 (suicide). CAL. DEP’T OF CORR. & REHAB., CONDEMNED INMATES WHO HAVE DIED SINCE

1978 (2012), available at http://www.cdcr.ca.gov/Capital_Punishment/docs/CONDEMNED

INMATESWHOHAVEDIEDSINCE1978.pdf. Since 1978, fifty-seven inmates have died of

natural causes on California’s death row and twenty-one have committed suicide. Id. Six have

died from other causes, bringing the total number of nonexecution deaths to eighty-four. Id.

. Andrew Blankstein, Killer of 3 USC Film Students Dies on Death Row, L.A. TIMES

(Nov. 24, 2011), http://articles.latimes.com/2011/nov/24/local/la-me-inmate-death-20111124.

. Murtishaw v. Woodford, 255 F.3d 926, 938 (9th Cir. 2001).

. Id.

. See id.

S16 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

ex post facto violation and erroneous jury instructions that

constituted constitutional error that cannot be deemed harmless.”

The court reversed Murtishaw’s death sentence and “remand[ed] the

case to the district court with instructions to grant the writ to the

extent that the death penalty sentence is vacated and a sentence of

life imprisonment without parole is substituted unless the State

resentences him within a reasonable time.”

The prosecution sought

the death penalty in a third trial, and on October 4, 2002, Murtishaw

was again sentenced to death.

His conviction was affirmed on

appeal by the California Supreme Court on February 22, 2011.

Murtishaw’s petition for a writ of habeas corpus was pending in the

California Supreme Court when he died last November.

Supporters of California’s death penalty frequently argue that

blame for the long delays in capital cases lies at the feet of attorneys,

who file “frivolous appeals.”

A frivolous appeal is one that it is

“clearly insufficient on its face, and does not controvert the material

points of the opposite pleading, and is presumably interposed for

mere purposes of delay or to embarrass the [adversary].”

It can

hardly be said that Murtishaw’s appeals were “frivolous,” given that

he prevailed not once but twice, both times resulting in the reversal

of his death sentence, once by the state court, and once by the federal

court.

What Murtishaw’s case illustrates is that when a state has

sentenced someone to death, courts look carefully at the conviction

and the sentence to ensure that neither violate state or federal law.

And in a state like California, where the legislature has never taken

. Id. at 974.

. Id.

. People v. Murtishaw, 247 P.3d 941, 943 (Cal. 2011); Appellant’s Opening Brief at 2,

People v. Murtishaw, 247 P.3d 941 (Cal. 2011) (No. S110541), 2007 WL 2958717, at *2.

. Murtishaw, 247 P.3d at 943.

. Order Dismissing Case as Moot, People v. Murtishaw, No. S196099 (Cal. Jan. 18,

2012); see also Appellate Court Case Information for People v. Murtishaw, CAL. COURTS,

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1990328&doc_no

=S196099 (last visited Aug. 24, 2012) (noting that the case was dismissed as moot).

. California Death Penalty Ban Qualifies to Be Voter Initiative Placed on November

Ballot, CBS NEWS (Apr. 24, 2012), http://www.cbsnews.com/8301-505103_162-57419637

/california-death-penalty-ban-qualifies-to-be-voter-initiative-placed-on-november-ballot/

(“Opponents of the measure, such as former Sacramento U.S. Attorney McGregor Scott, argue

that lawyers filing ‘frivolous appeals’ are the problem, not the death penalty law.”).

. BLACK’S LAW DICTIONARY 668 (6th ed. 1990).

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S17

steps to reform the administration of the death penalty—which has

therefore become bloated and at risk of “fall[ing] of its own

weight”

—this appellate process now takes close to three decades to

complete. In Murtishaw’s case, the price tag associated with the

state’s three death penalty prosecutions, the expense to incarcerate

him on death row over thirty-two years as he pursued his appeals,

and the costs for his counsel, investigators, and experts on appeal is

conservatively estimated at $6.8 million over what a sentence of

LWOP would have cost.

2. Dennis Lawley:

Twenty-Three Years on Death Row,

Died of Natural Causes on March 11, 2012

Dennis Lawley died in his cell of natural causes after spending

twenty-three years on death row for a 1989 contract killing in which

he at all times maintained he had no involvement.

The

prosecution’s theory of the case was that Lawley hired Brian

Seabourn to kill Kenneth Stewart, a convicted felon who had robbed

and beaten Lawley. “Two criminalists said that the bullet that killed

the victim matched a revolver found in Lawley’s home, a .357-

caliber Ruger.”

Seabourn was convicted of second-degree murder

and later admitted that he killed Stewart, “but insisted the order came

[not from Lawley but] from the Aryan Brotherhood, a violent prison

gang.”

Seabourn said he used a .357-caliber Smith & Wesson

revolver [to kill Stewart] . . . and buried it in a Modesto

field.

. Chief Justice Ronald M. George, Testimony Before the Commission on the Fair

Administration of Justice 43 (Jan. 10, 2008), available at http://www.ccfaj.org

/documents/reports/dp/expert/Chief's%20Testimony.pdf.

. Three capital trials at $1 million each ($3 million) + three direct appeals at $100,000

each ($300,000) + one state habeas corpus proceeding ($200,000) + one federal habeas

proceeding ($1 million) + $2.3 million in additional housing expenses associated with housing a

prisoner on death row = $6.8 million. See Executing the Will of the Voters?, supra note 2, at S75,

S84, S93–94, S103–06.

. Maura Dolan, Death Row Inmate Trying to Overturn Verdict Dies in Cell, L.A. TIMES,

Mar. 14, 2012, at AA4.

. Id.

S18 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

In 2007, a lawyer for Lawley received state funds to

search the field where Seabourn said he hid his weapon. A

rusty .357-caliber Smith & Wesson was discovered, but the

revolver was so degraded that authorities were unable to

compare its barrel markings with those on the bullet that

killed the victim.

Lawley’s attorney of nineteen years, Scott F. Kauffman,

maintains that his client was innocent of the 1989 murder-for-hire

that sent him to San Quentin and is seeking a posthumous ruling on

his client’s habeas petition.

“‘Lawley deserves a ruling on his

claims, even if the outcome will have no practical consequence. Mr.

Lawley’s death does not erase the injustice of his conviction and

sentence,’ Kauffman told the court in a written motion.”

The delays

in California’s system prevented the court from addressing Lawley’s

claim—filed in 2008—so his petition for a writ of habeas corpus

based on actual innocence was still pending when he died.

Lawley’s petition was dismissed by the federal court on May 18,

2012, “[i]n light of Lawley’s death.”

As the deaths of Murtishaw and Lawley demonstrate—along

with the eighty other death-row inmates who have died in

California’s prison—there is absolutely no support for the

contention, advanced by some pro-death-penalty organizations,

that

replacing the death penalty with LWOP will increase housing or

medical care costs for the state. Death-row inmates grow old and

need costly medical care, just as LWOP inmates do. Indeed, death-

row inmates receive the same medical care that LWOP inmates

receive, but it is provided at a premium due to logistical problems

and security concerns that are endemic to providing healthcare to

. Id.

. Maura Dolan, Client Dies in Prison, but Lawyer Still Seeks to Prove Innocence, L.A.

TIMES (May 8, 2012), http://articles.latimes.com/2012/may/08/local/la-me-death-appeal

-20120509.

. Id.

. Order Dismissing Action at 2, Lawley v. Wong, No. 08-cv-01425 (E.D. Cal. May 18,

2012), ECF No. 66.

. E.g., Quick Facts: Vote No on Prop 34, WAITING FOR JUSTICE,

http://waitingforjustice.net/the-truth-about-the-costs/ (last visited Sept. 2, 2012).

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S19

aging inmates on San Quentin’s death row.

The vast majority of

death-row prisoners who have died in California have lived out the

remainder of their natural lives in state prison, just as LWOP inmates

do.

This is because most death-row inmates die in prison of natural

causes.

They just do so in a much more costly manner than do

LWOP inmates.

3. Ralph International Thomas:

Conviction and Sentence of Death Overturned

After Twenty-Six Years on Death Row

On May 10, 2012, the Ninth Circuit Court of Appeals upheld a

district court’s order granting Ralph International Thomas’s petition

for a writ of habeas corpus and overturning his conviction and death

sentence, which had been imposed on him for two murders

committed in 1985.

As we noted in our Article, Thomas has

steadfastly maintained his innocence.

His conviction was based

entirely on circumstantial evidence.

Nevertheless, Thomas remains

on death row.

In a recent court filing, his attorney described his

situation as follows:

Ralph International Thomas has been held by the State

under sentence of death for almost 26 years—including

several years in which his case languished, awaiting action

by the California Supreme Court. During that time, his

health has been destroyed. While in the care of the State’s

prison medical system—which this Court held to be

constitutionally inadequate—he suffered a series of strokes

and is in the grip of a variety of other chronic, life-

. See CAL. STATE AUDITOR, CALIFORNIA DEPARTMENT OF CORRECTIONS AND

REHABILITATION: INMATES SENTENCED UNDER THE THREE STRIKES LAW AND A SMALL

NUMBER OF INMATES RECEIVING SPECIALTY HEALTH CARE REPRESENT SIGNIFICANT COSTS 53

(2010), available at http://www.bsa.ca.gov/pdfs/reports/2009-107.2.pdf (stating that San Quentin

inmates require more correctional officers to guard them while in hospitals).

. Executing the Will of the Voters?, supra note 2, at S51, S53.

. Id.

. Id. at S104.

. Thomas v. Chappell, 678 F.3d 1086, 1087–88 (9th Cir. 2012).

. Executing the Will of the Voters?, supra note 2, at S179.

. Thomas, 678 F.3d at 1090.

. DIV. OF ADULT OPERATIONS, CAL. DEP’T OF CORR. & REHAB., CONDEMNED INMATE

LIST (Aug. 3, 2012), available at http://www.cdcr.ca.gov/Capital_Punishment/docs

/CondemnedInmateListSecure.pdf).

S20 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

threatening illnesses. According to the State’s medical staff,

for the last four years Mr. Thomas has been unable to

perform the most basic “activities of daily life,” such as

dressing himself or keeping himself clean.

This Court has concluded that Mr. Thomas never

received a fair, constitutionally adequate trial. Moreover, in

reaching that conclusion, the Court reviewed a substantial

quantity of evidence strongly pointing to the conclusion that

Mr. Thomas in fact did not commit the murders for which

he has already suffered such devastating punishment—that

they were likely the crimes of another.

There is a grave likelihood that Mr. Thomas will soon

die in prison without ever again knowing freedom or

receiving the fair trial that is his constitutional due, and that

he and his family—mother, siblings, daughter and

grandchildren who have remained devoted to him—will

spend those last days without any meaningful comfort or

contact.

The cases of Lawley and Thomas both raise serious questions

about the infallibility of our criminal justice system. Despite the

considerable procedural protections provided to these capital

defendants and inmates, Lawley and Thomas have spent nearly five

decades on death row. In deciding whether to replace the death

penalty with LWOP, voters should carefully consider the issues

raised in these cases against the backdrop of the recent data compiled

by the National Registry of Exonerees, which shows California to be

second in the nation in the number of wrongful convictions.

B. New Projections:

Death Penalty Will Cost $5 Billion to $8 Billion

More Than LWOP (2013–2050)

A few recent studies examining the various costs incurred in

administering the death penalty in California inform and add

precision to some of the estimates in our Article.

. Appellee’s Opposition to Motion to Stay Mandate at 4–5, Thomas v. Chappell, 678 F.3d

1086 (9th Cir. 2012) (No. 09-99024) (footnote omitted).

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S21

1. Pretrial Investigation Costs & Trial Costs

In a recent study, Nicholas Petersen and Mona Lynch reviewed

records from the Office of the District Attorney for Los Angeles

County, which has prosecuted “[n]early 30 percent of defendants on

California’s death row.”

They found that only 42 percent of the

death penalty trials held in Los Angeles County between 1996 and

2006 resulted in a death sentence.

As a result, “valuable resources

were spent preparing the other 58 percent of death penalty cases for

capital-litigation that . . . result[ed] [in a sentence of life

imprisonment without possibility of parole].”

The report concluded

that during that time period, Los Angeles County spent upwards of

$338 million prosecuting capital cases ($1.2 million per death

penalty case multiplied by 282 death-penalty cases).

Of that, $200

million was spent on death-penalty trials that resulted in sentences of

LWOP.

Thus, the findings in the Petersen and Lynch study support

our estimate that capital trials cost taxpayers an average of $1 million

more per trial than other noncapital first-degree-murder trials.

Their

. Nicholas Petersen & Mona Lynch, Prosecutorial Discretion, Hidden Costs, and the

Death Penalty: The Case of Los Angeles County, 102 J. CRIM. L. & CRIMINOLOGY (forthcoming

2012) (manuscript at 35) (on file with author). Petersen and Lynch found that Los Angeles

County is a reliable cost indicator because of the number of prisoners the county sends to death

row.

In 2009, Los Angeles County distinguished itself by sentencing the most defendants to

death in the nation, sending 13 people to death row. Not only did it beat out other

county level jurisdictions nationally, there was not a single state other than California

that produced double-digit death sentences for the year. Moreover, Los Angeles

County accounted for 12 percent of the nation’s death sentences that year.

Id. (citation omitted) (manuscript at 35–36).

. Id. (manuscript at 28–29).

. Id. (manuscript at 28).

. Id.

. Id. (manuscript at 28–29).

. In estimating that capital trials cost $1 million more on average, we did not provide a

breakdown as to what costs are for defense counsel, or what the costs are to the court system.

Petersen and Lynch, however, calculated that “[t]he complexity of capital cases requires the

appointment of specialized defense attorneys at a rate of about $324,665 per case compared to a

rate of $78,273 per non-capital case.” Id. (manuscript at 14). They also calculated that “[t]he

number of days spent in court represents the next source of disparity. On average, death penalty

cases involve 120 more court days than non-capital cases, at a rate of $3,589 per court day. [120 x

$3589 = $430,680 per case].” Id. Thus, Petersen and Lynch estimate that the cost of defense

counsel and court time alone in capital cases averages $675,000 more than in other noncapital

first-degree-murder trials. When the other pretrial and trial costs that are unique to capital cases

are added to that figure (e.g., investigators, expert witnesses for both sides, daily copy for

transcripts), the data in Petersen and Lynch’s analysis supports our conclusion that California

taxpayers are currently spending at a minimum about $40 million per year on death-penalty trials.

S22 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

findings also demonstrate that $200 million have been spent on cases

in Los Angeles County where the prosecutor either contemplated

seeking or sought the death penalty, but where no conviction or

sentence of death was ever returned by a jury and the defendants

were instead sentenced to LWOP.

2. Plea Bargaining

There is no credible evidence that replacing the death penalty

with LWOP will result in significant added trial costs to the state due

to defendants refusing to plead guilty and forcing prosecutors to meet

their burdens at trial.

The few studies that have been done support

the proposition that the threat of the death penalty does not increase

plea bargain rates.

In one study, which looked at murders committed in large urban

counties in 1988, the data showed that the number of defendants

pleading guilty to lengthy sentences in the five largest California

counties that year was 5 to 6 percent.

This rate is consistent with

the findings in the Final Report of the CCFAJ, which concluded that

fewer than 5 percent of the 120 murder prosecutions that take place

every year in California and result in an LWOP sentence are the

products of plea bargains.

The CCFAJ concluded that if all of these

prosecutions went to trial as regular murder cases, without the death

penalty, the additional costs would be far less than the costs of

California’s death-penalty system.

100

Similarly, Petersen and Lynch point out that funding future first-

degree LWOP murder trials—which would not have taken place,

purportedly, but for the removal of the threat of the death penalty—

would be significantly less costly than the current system wherein

. Kent S. Scheidegger, The Death Penalty and



Plea Bargaining to Life Sentences, CRIM.

JUST. LEGAL FOUND., Feb. 2009, at 10. The CJLF study found that there was no statistical

difference between the rate of plea bargaining in counties with the death penalty and counties

without the death penalty, based on data from 1988. Id. The study showed that, nationally,

counties with the death penalty have a higher rate of people pleading guilty to longer sentences

but not a higher rate of people pleading guilty. Id. What this demonstrates is that using the death

penalty to plea bargain does not save money since the same number of cases would be resolved

through a plea bargain without the death penalty. Id. at 11–12.

. Id. at 2–3.

. Id. at 11. The percentage of people pleading guilty to lengthy sentences in those counties

ranged from 2.8–6.3 percent. Id.

. FINAL REPORT, supra note 18.

100

. Id. at 69–70.

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S23

prosecutors frequently charge special circumstances, triggering the

mounting of a vigorous, costly, publicly-funded capital defense team,

in cases that are not ultimately tried as death penalty cases.

101

3. Costs of Incarceration

We have renewed our request to the California Department of

Corrections and Rehabilitation for information that will shed light on

how much more it costs to house death-row inmates. As of June 23,

2012, the CDCR continues to maintain that “[n]o information is

currently available for per capita housing of a condemned inmate.”

102

There is no real dispute that it costs significantly more to house

death-row inmates than other prisoners. Unlike other prisoners, they

are housed in single cells, so more physical space is required to

house them.

103

Additional security also is required for supervising

and escorting death-row inmates because (1) death-row inmates are

allowed scheduled visits seven days a week to meet with their

attorneys; (2) most death-row inmates are allowed yard access seven

days a week; (3) escort costs for medical visits are higher for death-

row inmates due to the physical layout of the prison at San Quentin;

(4) most death-row inmates have access to canteen goods, group

religious services, and other activities; and (5) most death-row

inmates require more legal mail processing and records management

due to the ongoing and lengthy nature of the legal process.

104

A recent study by Trisha McMahon and Tim Gage, designed to

determine what the precise savings to taxpayers would be should

voters pass the SAFE California Act, concluded that based on current

mortality rates of death-row inmates, it will cost the state an

estimated $1,134,800,000 more to house inmates on death row

between 2013 and 2050 than it would to house the same number of

inmates in LWOP housing.

105

We believe that this cost estimate is

101

. See Petersen & Lynch, supra note 90 (manuscript at 8).

102

. Letter from Lee Seale, Dir., Div. of Internal Oversight & Research, to Senior Ninth

Circuit Judge Arthur L. Alarcón, (June 23, 2012) [hereinafter Letter From Lee Seale to Senior

Ninth Circuit Judge Arthur L. Alarcón] (on file with author).

103

. CAL. LEGISLATIVE ANALYST’S OFFICE, LAO ANALYSIS OF PROPOSITION 34 (July 18,

2012), available at http://www.lao.ca.gov/ballot/2012/34_11_2012.pdf.

104

. McMahon & Gage, supra note 3, at 4.

105

. Id. at 9.

S24 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

low and that it understates the future savings should the death

penalty be replaced with LWOP.

106

Nevertheless, the analysis prepared by McMahon and Gage

provides a useful conservative estimate. Because the report’s

mortality schedules estimate the rate at which death-row inmates will

die between 2013 and 2050 before being executed, we are able to

calculate more precisely the possible range of cost savings associated

with eliminating death-row housing and replacing the death penalty

with LWOP.

107

Incorporating the projected death-row population

established by McMahon and Gage, based on twenty new inmates

added annually, we calculate that at the cost figure we relied upon in

our Article,

108

which has not been disavowed by the CDCR, death-

row housing costs between 2013 and 2050 could be as high as $3.4

billion more than LWOP housing costs between 2013 and 2050. This

cost may be even higher if California constructs its proposed new

death-row housing unit, called the Condemned Inmate Complex

(CIC).

109

106

. McMahon and Gage concluded that the cost to house an inmate on death row is $85,000

per inmate, per year, which is—according to their calculations—$40,000 more than the $45,000 it

costs to house an LWOP inmate per year. Id. at 3–4. We believe that this figure is too low

because it is not supported by the CDCR's published data, which states that its overall per capita

cost for inmates throughout the system is $52,363. Letter From Lee Seale to Senior Ninth Circuit

Judge Arthur L. Alarcón, supra note 102. Given the nature of the violent crimes which result in a

sentence of LWOP, it does not seem likely that LWOP inmates are housed less expensively than

less violent inmates. The high-end figure assumes that the housing costs are as stated in our

Article, and calculates the death row population from 2013 to 2050 based on the mortality rate

schedules supporting McMahon and Gage’s research. See McMahon & Gage, supra note 3, at 6–

9. The estimate of $4 billion to $9 billion does not take into account any rate of inflation.

107

. McMahon & Gage, supra note 3, at 6–9.

108

. This figure is $90,000 per inmate, per year as of 2005, adjusted for inflation to $105,905

per inmate as of 2012. See Executing the Will of the Voters?, supra note 2, at S106.

109

. See CAL. STATE AUDITOR, ALTHOUGH BUILDING A CONDEMNED INMATE COMPLEX AT

SAN QUENTIN MAY COST MORE THAN EXPECTED, THE COSTS OF OTHER ALTERNATIVES FOR

HOUSING CONDEMNED INMATES ARE LIKELY TO BE EVEN HIGHER 17 (2008), available at

http://www.bsa.ca.gov/pdfs/reports/2007-120.2.pdf. It is unclear whether the estimated cost of

$5.8 million per year to operate the new facility replaces or supplements current costs. See id.

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S25

4. Costs of Lethal Injection Litigation:

More Money Wasted

a. California federal court:

Lethal injection litigation

Since 2004, the State of California has been defending against

challenges to the constitutionality of its lethal injection protocols in

the federal courts.

110

Prior to 2005, federal courts had denied

California death-row inmates’ challenges to the state’s lethal

injection procedures.

111

But in April 2005, the Lancet, a British

medical journal, published a study that analyzed the toxicology

reports of forty-nine inmates who had been executed by lethal

injection.

112

The study revealed that 43 percent of these inmates had

concentrations of sodium thiopental in their blood that were

consistent with awareness.

113

This finding “apparently lend[s] at least

some credence to the questions about the three-drug combination that

had been raised by [inmates] in California and by others in similar

cases around the country.”

114

Michael Morales, who was scheduled to be executed in 2006

after nearly twenty-three years on death row, filed suit in federal

court that February against the CDCR challenging the state’s lethal

injection procedures and protocols.

115

The district court in that case

issued a memorandum of findings—including a finding that

“California’s implementation of its lethal-injection protocol was

deficient”

116

—and asked the state to respond.

117

The district court

judge who presided over the case commented:

110

. Cooper v. Rimmer, No. C 04-436, 2004 WL 231325 (N.D. Cal. Feb. 6, 2004).

111

. See, e.g., Cooper v. Rimmer, 379 F.3d 1029, 1030 (9th Cir. 2004).

112

. Leonidas G. Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution,

365 LANCET 1412 (2005).

113

. Id.

114

. Jeremy Fogel, In the Eye of the Storm: A Judge’s Experience in Lethal-Injection

Litigation, 35 FORDHAM URB. L.J. 735, 739 (2008).

115

. Morales v. Cate, 757 F. Supp. 2d 961, 965 (N.D. Cal. 2010).

116

. Fogel, supra note 114, at 746.

117

. Id. The Los Angeles Times reports that Judge Fogel concluded in December 2006 that

there was “more than adequate” evidence that the state was violating the U.S.

Constitution after hearing testimony that lethal injection procedures were performed in

a dark, cramped room by men and women who knew little about the drugs they

administered. Medical experts in the case testified before U.S. District Judge Jeremy

Fogel in San Jose that they could not rule out the possibility that one or more inmates

S26 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

On March 5, 2007, without notice to the state legislature or

apparently even to the Governor’s Office, the Department

of Corrections and Rehabilitation began construction of a

new lethal injection chamber at San Quentin. The project

became a matter of general public knowledge only after the

cost exceeded the amount California state agencies may

spend without prior legislative approval. When asked by a

legislative oversight committee why the construction had

commenced without its knowledge, a corrections official

responded on behalf of San Quentin’s warden that the Court

had ordered that a new chamber be built. When it was

pointed out that the Memorandum contained no such

requirement, the warden (a named party in Morales)

admitted that he had not read the memorandum. The

Governor subsequently suspended construction of the new

chamber pending legislative authorization, which ultimately

was given in August 2007.

118

Reports put the cost to build the new lethal injection chamber at

$800,000.

119

It has never been used. Executions in California have

been halted since early 2006 pending the outcome of the federal suit

challenging the state’s procedures.

120

The CDCR spent four years

devising new lethal injection protocols, and, in August 2010,

California regulators in the Office of Administrative Law “approved

[the] revised lethal injection procedures ordered by a federal judge,

who halted capital punishment in the state until prison officials

improved the execution process. The new regulations . . . included

detailed instructions on how prison officials should administer the

had been conscious and experienced an excruciating sensation of drowning or

strangulation before death.

Henry Weinstein, High Court Takes Up Lethal Injection, L.A. TIMES (Jan. 7, 2008),

http://articles.latimes.com/2008/jan/07/local/me-secrecy7.

118

. Fogel, supra note 114, at 747 (citing CAL. S. PUB. SAFETY COMM., FINDINGS OF S. PUB.

SAFETY COMM. INFORMATIONAL HEARING ON SAN QUENTIN DEATH CHAMBER, 2007–08 Sess.

(Cal. 2007)).

119

. Paul Elias, Judge Clears Way for First Execution Since 2006, HUFFINGTON POST

(Sept. 25, 2010), http://www.huffingtonpost.com/2010/09/24/albert-greenwood-brown-or_n

_738682.html; Rina Palta, Exit Interview: Prison Official Talks Death Penalty, Hunger Strike,

More, THE INFORMANT (Oct. 26, 2011), http://informant.kalwnews.org/2011/10/outgoing-prison

-official-scott-kernan-talks-death-penalty-hunger-strike-and-growing-up-at-san-quentin/.

120

. Calif Regulators OK New Lethal Injection Methods, KSBY (Aug. 2, 2010),

http://www.ksby.com/news/calif-regulators-ok-new-lethal-injection-methods/.

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S27

lethal three-drug cocktail to condemned inmates.”

121

On Friday,

December 16, 2011, Marin County Superior Court Judge Faye

D’Opal “threw out California’s new lethal injection protocols, which

[had] been five years in the making, because corrections officials

failed to consider a one-drug execution method now in practice in

other death penalty states.”

122

“In ruling that the new protocols were

‘invalid,’ Judge D’Opal noted that one of the state’s own experts

recommended the single injection method as being superior to the

three-drug sequence approved last year.”

123

b. California Court of Appeal:

Petition seeking immediate executions

On April 19, 2012, the CJLF filed another petition for a writ of

mandate in the California Court of Appeal for the Third District, this

time seeking the immediate execution of fourteen inmates on death

row, including Michael Morales, “whose sentences have been fully

reviewed and who are ready for execution.”

124

The petition was filed

on behalf of Bradley Winchell, brother of Terri Winchell, whom

Michael Morales was convicted of murdering in 1981.

125

The Court

of Appeal dismissed the petition, and on June 25, 2012, the CJLF

filed a request for review in the California Supreme Court.

126

August 8, 2012, the California Supreme Court denied the petition for

review.

127

c. District of Columbia federal court:

FDA lethal injection drug litigation

In another lawsuit, filed in the District of Columbia district

court, a group of death-row inmates incarcerated in Arizona,

121

. Id.

122

. Carol J. Williams, California's New Lethal Injection Protocol Tossed by Judge, L.A.

TIMES (Dec. 17, 2011), http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217.

123

. Id.

124

. Petition for Writ of Mandate at 1–2, Winchell v. Cate (Morales), No. C070851 (Cal. Ct.

App. Apr. 19, 2012).

125

. Id. at 2.

126

. Petition for Review, Winchell v. Cate (Morales), No. S203526 (Cal. June 25, 2012).

127

. Order Denying Petition for Review, Winchell v. Cate (Morales), No. S203526 (Cal.

Aug. 8, 2012); see also Appellate Court Case Information for Winchell v. Cate (Morales), CAL.

COURTS, http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id

=2017855&doc_no=S203526 (last visited Aug. 24, 2012) (listing the petition for review as

denied).

S28 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

California, and Tennessee has sued the Food and Drug

Administration (FDA) for “improperly allowing shipments of a

misbranded and unapproved new drug to enter the United States for

use in state lethal injection protocols, which will be used during

plaintiffs’ executions.”

128

Three drugs are typically used in lethal

injections, including sodium thiopental, which puts the inmate to

sleep before fatal doses of the other two drugs are administered.

129

The sole manufacturer of sodium thiopental in the United States

ceased production of the drug in 2009.

130

Since that time, California

and other states have been purchasing the drug overseas.

131

In March 2012, U.S. District Judge Richard Leon ruled that the

FDA erred in allowing state prisons to import the foreign-made drug

because the FDA had not approved it for “safety and effectiveness,”

as required for imports.

132

The district court ordered the FDA to

“immediately notify any and all state correctional departments which

it has reasons to believe are still in possession of any foreign

manufactured thiopental that the use of such drug is prohibited by

law and that, that thiopental must be returned immediately to the

FDA.”

133

The FDA’s position was that reviewing such a drug

designed for death “clearly falls outside of F.D.A.’s explicit public

health role.”

134

The FDA sent demand letters to state prisons, but

“more than a dozen states have refused to comply with the [court’s]

order.”

135

On May 25, 2012, California defied the FDA’s request to

turn over its supply of sodium thiopental.

136

The CDCR contends

that it is not bound by the ruling made by a federal judge in

128

. Beaty v. FDA, No. 11-289, 2012 WL 1021048, at *1 (D.D.C. Mar. 27, 2012).

129

. Id. at *2.

130

. Id.

131

. Id.

132

. Id. at *8–10.

133

. Order on Summary Judgment at 2, Beaty v. FDA, No. 1:11-cv-00289-RJL (D.D.C.

Mar. 27, 2012), EFC No. 24; see also Letter from Domenic J. Veneziano, Dir., Div. of Import

Operations and Policy, Dep’t of Health and Human Servs., to James D. Smith, Chief of Criminal

Appeals, Office of the Attorney Gen. (Apr. 2012), available at http://www.ago.ne.gov

/resources/dyn/files/772439zea71da6c/_fn/042012+LetterFromFDA,Thiopental.pdf.

134

. Beaty, 2012 WL 1021048, at *3.

135

. Calif. Defies Order to Turn Over Execution Drug, RECORDNET.COM (May 25, 2012),

http://www.recordnet.com/apps/pbcs.dll/article?AID=/20120525/A_NEWS/120529900.

136

. Id.

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S29

Washington, D.C.

137

The FDA is appealing the district court’s ruling

in the United States Court of Appeals for the District of Columbia.

138

d. Los Angeles County: Motions seeking

immediate executions with one-drug injection

On May 2, 2012, the Los Angeles District Attorney’s Office

filed motions in Los Angeles Superior Court asking the judge to

order that the warden of San Quentin State Prison use a single-drug

lethal injection method to put convicted murderers Mitchell Carleton

Sims and Tiequon Cox to death or show cause why the executions

cannot proceed.

139

“Cooley, who is retiring after three terms, is the

first district attorney in California to make the request and his

attempt comes just months before voters decide whether to abolish

capital punishment.”

140

On June 5, 2012, the Los Angeles Times editorial board

published an article calling on the Los Angeles District Attorney’s

Office and other prosecutors to stop pursuing capital murder cases

until voters have had a chance to vote on the SAFE California Act,

Proposition 34, on November’s ballot.

141

According to the Times,

“[p]ublic support for capital punishment has been plummeting in

recent years, and for reasons of cost, morality and effectiveness,

voters may finally be willing to pursue a better course.”

142

The Times

urged prosecutors to “give [voters] their chance to weigh in before

continuing with a penalty that is no more protective of society than

life without parole.”

143

The Los Angeles District Attorney’s Office, however, has

refused to stop pursuing capital case litigation until after the voters

have had the opportunity to decide whether they would like to

137

. Id.

138

. Statement of Issues at 1, Cook v. FDA, No. 12-5176 (D.C. Cir. July 2, 2012), ECF No.

1381431.

139

. Dan Whitcomb, Prosecutors Seek to Resume California Executions After 6-year Ban,

REUTERS (May 3, 2012), http://www.reuters.com/article/2012/05/03/us-usa-california-executions

-idUSBRE84206820120503 (“Los Angeles prosecutors said in court papers that the one-drug

protocol, which was being used in Ohio, Washington and Arizona for lethal injections, had been

upheld by courts as constitutional.”).

140

. Calif. Defies Order to Turn Over Execution Drug, supra note 135.

141

. Editorial, Don’t Seek the Death Penalty: Until Voters Decide on Its Future, L.A.’s D.A.

and Other Prosecutors Shouldn’t Pursue Capital Cases, L.A. TIMES, June 5, 2012, at A12.

142

. Id.

143

. Id.

S30 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

“pursue a better course.”

144

Los Angeles Superior Court Judge Larry

Fidler heard the District Attorney’s motions on July 13, 2012.

145

Michael Laurence, executive director of the Habeas Corpus Resource

Center, argued that the court lacks jurisdiction to order that the

executions of Sims and Cox be carried out on several grounds.

146

Judge Fidler stated that he had “concerns whether [he has] the

authority to do what the district attorney wants [him] to do,” but he

ordered the parties to continue with discovery and to return to court

on September 10, 2012, for another hearing.

147

In addition to the costs outlined in our Article, California

taxpayers have been shouldering significant costs to finance the

ongoing lethal injection litigations and related expenditures,

including: (1) the construction of a new lethal injection chamber in

2006, which has never been used;

148

(2) the years-long process of

drafting new lethal injection protocols which were thrown out by a

federal judge in December 2011;

149

and (3) almost a decade of lethal

injection litigation in the state and federal courts.

150

None of the cost

figures in our Article, nor any of the cost projections calculated

below, include any of the expenses incurred defending against

challenges to the state’s lethal injection protocols in the state or

federal courts, the costs of the regulatory process, or other costs such

as the construction of the new execution facility.

C. Total Costs: Updated

144

. See id.

145

. People v. Cox, No. A758447 (L.A. Super. Ct. filed Jan. 17, 1985); People v. Sims, No.

A591707 (L.A. Super. Ct. filed May 15, 1986).

146

. Cox, No. A758447; Sims, No. A591707.

147

. Linda Deutsch, Judge Hears Testimony on One-Drug Executions, SFGATE (July 13,

2012), http://www.sfgate.com/news/article/Judge-hears-testimony-on-one-drug-executions

-3706073.php.

148

. See supra notes 118–120 and accompanying text.

149

. See supra notes 121–123 and accompanying text.

150

. The first lethal injection challenge in federal court in California was filed by Kevin

Cooper in 2004, followed by a second suit filed by Donald Beardslee. Morales’s suit was the

third, filed in February 2006. Fogel, supra note 114, at 736–40 (surveying lethal injection

litigation in California).

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S31

Expense

Annual Cost in 2009

(as calculated in the

Article)

Updated Cost

Projections 2013–

2050

151

With McMahon &

Gage Projected

(Lower) Housing Costs

2013–2015

Pretrial Investigation

and Trial Costs

$40 million

$1.4 billion

Direct Appeal and

State Habeas

$58.5 million

$2.33 billion

Federal Habeas

$14 million

$555 million

Cost of Incarceration

$71.7 million

$3.4 billion

$1.1 billion

Construction and

Operation of a New

Death Row Facility

152

$2.6 billion

TOTAL

$184.2 million

$7.7 billion (or $6.9

billion if new CIC is

built)

$5.4 billion (or $6.9

billion if new CIC is

built)

Since publication of our Article last year, no county, state, or

federal agency has come forward to challenge the accuracy of our

cost estimates with any specific data, or any other information.

VI. PROPOSITION 34, THE SAFE CALIFORNIA ACT,

ON THE NOVEMBER 6, 2012 BALLOT

A. Legislative Analyst’s Office

Preliminary Analysis, October 2011

Before an initiative can qualify for the ballot, the Legislative

Analyst’s Office (LAO) must prepare a preliminary analysis of the

151

. This column uses the same cost bases as those used in the Article, however the figures in

this column have been updated to account for inflation through 2012 and incorporate the death-

row population projections included in McMahon and Gage’s report.

152

. This figure includes $395.5 million (construction) + $7.3 million (activation) + $2.2

billion (operation of new facility from 2013 to 2050—$58.8 million per year multiplied by thirty-

seven years). CAL. STATE AUDITOR, supra note 109, at 1. It is unclear from the State Auditor’s

Report whether the projected costs to construct and annually operate the proposed new CIC

facility are inclusive of or in addition to the current costs associated with housing inmates on

death row. See id. We assume for purposes of this estimate that the projected annual operating

costs are the total costs for housing death-row inmates in the proposed new facility, rather than in

addition to the current costs.

S32 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

proposed initiative’s fiscal impact.

153

The LAO’s “mission is to

provide analysis and nonpartisan advice to the Legislature on fiscal

and policy issues.”

154

On September 19, 2011, the CJLF wrote to the

LAO “to assist” in the preparation of the LAO’s preliminary fiscal

analysis of the SAFE California Act.

155

The CJLF informed the LAO

that our Article was “not a reliable source” and agreed with the

LAO’s past conclusions that the costs of administering the death

penalty in California are “unknown” and “indeterminable.”

156

The

CJLF also urged the LAO to focus on how much it would cost the

state to prosecute cases if “the death penalty [is] eliminated [as] an

incentive for some offenders to reach plea agreements.”

157

On October 4, 2011, the LAO published its preliminary analysis

of the SAFE California Act.

158

Despite the growing body of evidence

supporting the conclusion that the death penalty is costing taxpayers

almost $200 million more than LWOP per year, the LAO’s

preliminary analysis reported that Proposition 34 would save

taxpayers less than $100 million per year.

159

In other words, although

the LAO acknowledged for the first time that the death penalty is

153

. Pursuant to Elections Code section 9005, the LAO reviews proposed statutory initiatives

to provide an analysis of their fiscal impacts. CAL. ELEC. CODE § 9005 (West 2012).

154

. LAO Career Frequently Asked Questions, CAL. LEGIS. ANALYST’S OFFICE,

http://www.lao.ca.gov/laoapp/careers/lao_career_faq.aspx (click “What does nonpartisan mean?”)

(last visited Aug. 15, 2012).

155

. Letter from Kent S. Scheidegger, Legal Dir. & Gen. Counsel, Criminal Justice Legal

Found., to Drew Soderborg, Senior Fiscal & Policy Analyst, Cal. Legislative Analyst’s Office

(Sept. 19, 2011) (on file with author).

156

. Id.

157

. Id. (quoting Letter from Elizabeth G. Hill, Legislative Analyst, Cal. Legislative

Analyst’s Office, and B. Timothy Gage, Dir. of Fin., Cal. Legislative Analyst’s Office, to Bill

Lockyer, Cal. Attorney Gen. (Sept. 9, 1999), available at http://www.lao.ca.gov/ballot/1999

/990670_INT.html).

158

. Letter from Mac Taylor, Legislative Analyst, Cal. Legislative Analyst’s Office, & Ana J.

Matosantos, Dir. of Fin., Cal. Legislative Analyst's Office, to Kamala D. Harris, Cal. Attorney

Gen. (Oct. 4, 2011), available at http://www.lao.ca.gov/ballot/2011/110600.pdf (describing the

results of the LAO’s preliminary analysis).

159

. Id. Specifically, the analysis states:

We estimate that this measure would have the following major fiscal effects:

 Net savings to the state and counties that could amount to the high tens of

millions of dollars annually on a statewide basis due to the elimination of the

death penalty.

 One-time state costs totaling $100 million from 2012–13 through 2015–16

to provide funding to local law enforcement agencies.

Id.

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S33

more expensive than LWOP, it estimated that the death penalty is

half as expensive as the data shows.

B. LAO’s Final Analysis, July 2012

On July 18, 2012, the LAO issued its final analysis, which will

be included in the voter ballot pamphlet for the November

election.

160

The LAO determined that Proposition 34 would result in

savings of “$100 million annually in the first few years, growing to

about $130 million annually thereafter.”

161

The LAO’s analysis

includes a section informing voters generally of the background of

the death penalty in California, but it does not inform the voters that

taxpayers have spent billions of dollars over the last thirty-four years

to fund the state’s broken system, which has resulted in only thirteen

executions.

162

The LAO also declined to inform voters that if California

replaces the death penalty with LWOP, taxpayers will be spared the

burden of constructing the proposed CIC, California’s costly new

death-row housing unit, which has been estimated by the state

auditor to cost nearly $400 million to build and $1.2 billion to

operate over the first twenty years.

163

Equally alarming, in our view,

is the LAO’s statement that “if the rate of executions . . . increase[s],

the future cost of housing inmates who have been sentenced to death

would be reduced.”

164

In other words, if the state starts carrying out

executions more quickly, the death penalty will not be as costly to

taxpayers. That statement suggests that speeding up the appellate

process for capital appeals and habeas corpus petitions in California

is something that could somehow just magically happen. The LAO

does not help voters when it suggests to them that executions could

somehow spontaneously start taking place in fewer than twenty-five

years from the date of conviction and sentence—the current average

delay in California.

165

160

. LAO ANALYSIS OF PROPOSITION 34, supra note 103.

161

. Id.

162

. See id.

163

. Executing the Will of the Voters?, supra note 2, at S100.

164

. LAO ANALYSIS OF PROPOSITION 34, supra note 103.

165

. Death Row Inmates by State, DEATH PENALTY INFO. CTR. (Apr. 1, 2012),

http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year.

S34 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1

The LAO is misleading voters again by implying that the cost

savings of replacing the death penalty with LWOP could be offset in

the future by an increase in the rate of future executions in

California. There is no credible evidence that the rate of executions

in California is poised to increase. Instead, the trend in California,

and nationwide, is for death-penalty appeals to take longer and

longer. Additionally, in California, it is simply not possible to speed

up the rate of direct appeals under this State’s constitution because

all appeals must go directly to the California Supreme Court, which

is comprised of only seven justices.

166

There are currently 729

prisoners on death row.

167

The California Supreme Court must

review the direct appeal in each and every case.

168

Despite numerous

calls for the system to be changed to allow direct appeals in capital

cases to be heard by intermediate appellate courts instead of the

California Supreme Court, the legislature has not acted to promote

such a change. Finally, if the LAO is going to assert that the death-

penalty costs will be reduced once executions are expedited, the

voters should also be informed that the reforms needed to increase

the pace of review—if such changes could be made—will cost

taxpayers an additional $95 million per year.

169

VII. CONCLUSION

Over the last thirty-four years, more than eighty death-row

inmates have died in prison before the state carried out their death

sentences—essentially a term of life imprisonment without parole—

while only thirteen have been executed. If the system remains on its

current course, over 500 more inmates will die on death row of

natural causes by 2050. Thus, our current death-penalty scheme

essentially already is an LWOP scheme, but—according to our

calculations—it costs taxpayers roughly an additional $200 million

166

See Justices, CAL. COURTS, http://www.courts.ca.gov/3014.htm (last visited Aug 29,

2012).

167

. DIV. OF ADULT OPERATIONS, CAL. DEP’T OF CORR. & REHAB., CONDEMNED INMATE

SUMMARY LIST (2012), available at http://www.cdcr.ca.gov/Capital_Punishment/docs

/CondemnedInmateSummary.pdf.

168

. Arthur L. Alarcón, Remedies for California’s Death Row Deadlock, 80 S. CAL. L. REV.

697, 712 (2007).

169

. FINAL REPORT, supra note 18 (concluding that the State of California will need to spend

an additional $95 million per year on the administration of its death penalty if the state intends to

maintain a system that complies with federal constitutional standards).

SPECIAL ISSUE] COSTS OF CAPITAL PUNISHMENT S35

per year to maintain the illusion that California has a functioning

death penalty.

Despite disputes over what the precise figures may be, it is now

beyond dispute that maintaining the current death-penalty laws in

California is taking a staggering toll on taxpayers and that replacing

the death penalty with life in prison without parole will result in

significant short- and long-term savings. In November 2012, for the

first time in over three decades, voters will have an opportunity to

weigh in at the ballot box and decide whether our current broken

system makes sense, or whether California can do better.

S36 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 46:S1