By Henry Weinstein, Los Angeles Times
Staff Writer
August 30, 2007
The death penalty system in
California is so backed up that the state would have to execute five
prisoners a month for the next 10 years just to clear the prisoners
already on death row.
The average wait for execution in the state is 17.2 years, twice the
national figure. And the backlog is likely to grow, considering the
trend: Thirty people have been on death row for more than 25 years,
119 for more than 20 years and 408 for more than a decade.
These statistics were cited by an
influential judge in a recent article, one in a small but growing
number of critiques of California's death penalty machinery, which
has proved to be so clogged that one jurist has called capital
punishment in the state an illusion.
Arthur L. Alarcon, a veteran judge on the U.S. 9th Circuit Court of
Appeals in Los Angeles, supports capital punishment and has voted in
favor of death sentences more often than he has voted against them.
His article in the Southern California Law Review is drawing
considerable attention, not least because, unlike many critics, he
does not blame delays on defense lawyers or liberal judges.
Rather, he has called for a radical overhaul of what he described as
systemic problems, including a critical shortage of defense lawyers
to represent death row inmates on appeal and an inefficient use of
judicial resources.
Alarcon suggested a major infusion of cash to attract lawyers to the
difficult cases. He also proposed shifting automatic judicial review
of death penalty cases to the state's appeals courts.
Taking sole jurisdiction from the California Supreme Court, which
has had exclusive oversight since California became a state in 1850,
would require a constitutional amendment, a tall order. Alarcon,
however, said the alternative could be dire.
"The delays in reviewing capital cases will continue to grow in
California to the point where the United States Supreme Court may
someday hold that such imprisonment is, in and of itself, cruel and
unusual punishment," he argued.
Alarcon, 81, has a long history with the death penalty. A former
prosecutor who tried death penalty cases, he served as the clemency
secretary to Gov. Pat Brown when Brown was considering requests to
commute death sentences. More recently, he cast a key vote paving
the way for the 1992 execution of Robert Alton Harris, the first
inmate put to death by the state in 25 years.
The veteran jurist's article is being studied in legal circles at
the same time the U.S. Justice Department is putting the final
touches on regulations to give the attorney general increased sway
over death penalty cases, including the power to shorten death row
inmates' time to appeal convictions to federal courts.
A legal challenge to the constitutionality of execution by lethal
injection has put California executions on hold for the last 18
months.
Alarcon does not offer an opinion on either the Justice Department
proposal or the lethal injection moratorium. Rather, his
statistics-heavy article is a dark assessment of how the death
penalty, under normal circumstances, works -- or doesn't.
California's death row, with 667 inmates, is the nation's largest.
While more than 50 condemned prisoners have died of old age, suicide
or prison violence in the last three decades, only 13 have been
executed since capital punishment was reinstated in 1978.
In an interview, Alarcon said he believes neglect by politicians and
particularly the failure of the Legislature and the governor to put
more money into the process are at the root of the dysfunction.
"There may be no interest on the political side in doing
something," Alarcon said. "They may be comfortable with a
de facto abolition of capital punishment."
"We have found a way of honoring our ambivalence about the
death penalty," said UC Berkeley law professor Franklin
Zimring, who has written about capital punishment. "We hand out
a lot of death sentences and then, in many ways, are relieved when
the system slows down."
Alarcon listed 20 procedural hurdles to execution, including
years-long delays in preparing trial transcripts and in appointing
lawyers for appeals and drawn-out deliberations by state and federal
courts, including the U.S. Supreme Court.
The California Supreme Court's seven justices spend about 20% of
their time and resources on death penalty cases, Alarcon said.
He argued that it would be wiser to spread review among the 105
justices seated in the state's six appellate districts, subject to
review by the state high court.
The dearth of lawyers to handle
death penalty appeals, which are automatic under state law, stems
from the state's serious under-funding of such work, Alarcon said.
The hourly rate for court-appointed attorneys in capital cases is
$140, less half the average awarded by federal courts in California
to lawyers appointed in some kinds of civil cases, Alarcon said.
Alarcon said that in a recent 9th
Circuit case, a lawyer representing an insolvent company was paid
$540 an hour.
"I would be hard-pressed to explain to a bartender or a
non-lawyer acquaintance how it is appropriate that an appellate
lawyer who is attempting to save a human being's life is compensated
at the rate of $140 per hour while the same lawyer could receive as
much as $540 per hour to represent an insolvent corporation in
bankruptcy proceedings," the judge wrote.
The California Legislature, Alarcon said, also has failed to
adequately fund investigation costs for complicated capital appeals.
The current cap on expenses is $25,000 a case.
Elisabeth Semel, who runs the death penalty clinic at UC Berkeley's
Boalt Hall School of Law, said some private firms spend $500,000 or
more representing inmates in post-conviction cases, including
hunting down and interviewing witnesses and experts.
Currently, 88 inmates on death row have no lawyer for either their
mandatory direct appeals or the habeas proceedings that follow,
according to Michael Laurence, executive director of the state's
Habeas Corpus Resource Center, who was interviewed by Alarcon. And
197 have lawyers for the direct appeal but not for the more complex
habeas cases, he said.
Alarcon predicted that the situation will get worse. No lawyers have
been appointed for any death row prisoner sentenced since 2003, he
said. Of the 17 sentenced to death in 2002, two have lawyers.
California Chief Justice Ronald M. George said Alarcon's proposals
"merit close review."
"I don't favor arbitrary time limits" for resolving
capital cases, George said. But he added, "We should know
within five years if a death sentence should be reversed or carried
out. . . . It is a negative commentary on the whole justice system
to have these cases languish for 20 years."
Two state appeals court justices differed on the merits of Alarcon's
proposal to shift some death penalty appeal work to their courts.
"I am an admirer of Judge Alarcon, but I really don't think it
will solve the problem," said Roger W. Boren, presiding justice
of the 2nd Appellate District in Los Angeles. "They are
jumbo-type cases" and if the appellate courts kept their
current cases, "we would be hard pressed" to give enough
attention to the appeals of people "facing the ultimate
penalty," he said.
On the other hand, J. Anthony Kline, presiding justice of the 1st
Appellate District in San Francisco, said, "My own view is that
it makes little sense to exclude the courts of appeal from the
process on capital cases." However, Kline and legal observers
both liberal and conservative said altering the state Constitution
would be difficult.
Santa Clara University law professor Gerald F. Uelmen said that
although he agreed with the need to provide greater compensation for
defense appellate lawyers and investigators, he was concerned that
shifting review to state appeals courts could lead to inconsistent
decisions.
Still, Uelmen said he will welcome Alarcon's appearance in January,
when the California Commission on the Fair Administration of
Justice, a state-appointed board studying criminal justice reform,
takes up the death penalty.
"With 650 cases backed up," said Uelmen, the commission's
executive director, "we have to look at all alternatives."
henry.weinstein@latimes.com