The True Cost of California’s Death Penalty

Thursday, June 30, 2011

Page 6

IN MY OPINION (Column)

The True Cost of California’s Death Penalty

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Two prominent scholars have combined their efforts to present us with what was probably known or suspected, namely an itemized expense of the tremendous cost of the death penalty law. Once again, we should weigh these expenses in view of the benefits received and the effects on the present financial straights of the once Golden State. The 1978 death penalty law, the Constitution of the United States, California and our sense of justice require re-evaluation.

Condemned to die prisoners are entitled to and do receive Supreme Court review, resulting in much lengthier opinions than most cases, because the issues are more sociological than legal, guilt is seldom a true issue, and what issues are raised are frequently so frivolous that in any other format, the attorneys would be sanctioned. Hence, a capital case involves a lengthy trial, drawn out jury selection, appeal to the Supreme Court and frequently post appeal habeas corpus proceedings in both our Supreme Court and in the federal judicial system. Since condemned to die prisoners do not enjoy favorable Moody or Dunn and Bradstreet ratings, they are unable to gain access to the private bar. Hence, attorneys’ fees are borne by the state and the lack of experienced practitioners make delay and time consumption inevitable. The conclusion follows that there are only very few California attorneys available. The issue then is, was the game worth the candle?

The argument that the penalty serves as a deterrent and that an innocent person may be so condemned are nearly non-existent. On the other side, the cost of the imposition of the death penalty and the resulting paucity of executions are so overwhelming that a persuasive argument can be made that even if the 1978 standards are met, its continuation of the death penalty in 2011 is close to an economic disaster. Assess the fact that since 1978, a total of thirteen prisoners have been executed at a cost to the taxpayer of over four billion dollars, and a delay of twenty-five years between the date of the crime and the actual execution. Much of the delay is due to the unavailability of competent death penalty lawyers.

In 1980, a mainly supporting actor, whose political experience was limited to the presidency of the Screen Actors Guild ran for Governor of California on two emotional issues, i.e., the wisdom of the death penalty and death to the University of California. Not only did the death penalty issue score with the voters of California, but it was aided by the waffling of the then Governor of California in the Caryl Chessman case. Chessman had been convicted of what is today a non-capital crime, sentenced to death, spent years on death row, wrote a best seller publicized in movies entitled “2455 Death Row” and was finally executed after Governor Pat Brown had granted a sixty-day reprieve and then allowed the execution to go forward. These vacillations, the appeal of the death penalty, his portrayal of a drunken bum who was falsely portrayed as an all-American glamour boy, i.e., George Gipp, unexpectedly caused the defeat of what had probably been the last of the Great Governors of California. Ronald Reagan was then, and had always been an underdog candidate who surprised his opponents. Sarah Palin haters, take note. The death penalty came and stayed.

What has been its effect? Fourteen executions in twenty-five years at a cost of over four billion dollars plus the terrible reputation we have gained in many states and most civilized nations in the world, particularly in Europe.

The absurdity of the death penalty is self evidence when one considers that it was enacted as a cruel measure to deter crime, when now the courts are struggling with whether the means used are too cruel. The case of injections has trumped the former methods of gas chambers or electric chairs and the controversy is noted in all courts, including the United States Supreme Court.

California finds itself today in its greatest financial crisis ever. Our schools are in disrepair, teachers are scarce and underpaid, special programs are discontinued, the university, state college and community college systems are paralyzed. Their functions are reduced. Parks are closed. The prison system is affected. State employees are furloughed and all state services, including the judicial system are reduced in size and effectiveness.

The economic decision must be made. It is a hard decision, not purely philosophical, but economic as well.