A
better death penalty for California
By
Kent Scheidegger
September
29, 2016
 |
|
Kent
S. Scheidegger
|
Oklahoma City bomber Timothy McVeigh was
sentenced to death for the murder of 168 people in 1997. He was
executed less than four years later. McVeigh was not railroaded; his
claims were fully considered. His case was reviewed on appeal by the
federal court of appeals, again by the federal district court on post
conviction review, and again by both of those courts on his motions for stay of
execution. Capital cases do not get any more complex than his, and yet it
didn't take decades to conduct a thorough and fair review and carry out his
sentence.
Contrast this with the case of Harold Memro in
California. He was convicted in 1987 of murdering three boys. The
first two reviews of his case, which are standard in capital cases, took until
1995. That was bad enough, but nine years later his lawyers dumped on the California Supreme Court yet another
massive petition, 521 pages long with 143 claims. The court eventually denied
all the claims, finding them without merit and most of them patently
so. It held that the petition “exemplifies abusive writ
practices” that are all too common in California. The tactic bought
Memro years of delay on his sentence, which still has not been carried out.
We often hear that California's death penalty is
broken. It would be more accurate to say it has been
sabotaged. Defense lawyers intentionally gum up the works, courts can do
little about it, and the California Legislature has time and again killed
well-crafted legislation designed to fix the problems.
The fear that California risks putting to death an
innocent person is greatly overblown.
This year, needed death penalty reforms are on the
ballot as Proposition 66, and the people can vote on them directly. The
initiative would make review of the cases faster and more reliable, eliminate
pointless obstructions and save money through reduced incarceration costs.
There are two ways to challenge a criminal
judgment: direct appeal on the trial record, which considers issues
such as admissibility of evidence and whether the jury was properly instructed,
and habeas corpus petitions, which are based on facts outside the record, such
as claims that the defense lawyer provided ineffective
representation. Every capital case should be reviewed on appeal and one
habeas corpus petition, but there is no need to hear second, third or
fourth petitions in cases with no doubt of guilt.
Proposition 66 would reserve additional reviews
solely for cases with substantial claims that the defendant did not commit the
crime or is exempt from capital punishment (for example, by reason of being
intellectually disabled). It would even make such reviews easier, compared
with the current system. But because so few cases involve any substantial
question of guilt, most of the time the process would end after the second
review.
The fear that California risks putting to death an
innocent person is greatly overblown. No one sentenced to death here since
1977, when capital punishment was reinstated after a U.S. Supreme Court
moratorium, has ever been shown to be actually innocent of the crime. Three
California cases are cited on the Death Penalty Information Center’s “innocence
list.” One is from the pre-1977 era and irrelevant to the present
system. The other two are cases in which a conviction was overturned
on procedural grounds many years after the crime, and the prosecution no longer
had the evidence to get a new conviction.
The reforms Proposition 66 proposes for
California’s death penalty review process are modeled on laws
enacted by Congress and upheld by the U.S. Supreme Court for federal capital
punishment cases. Among other changes, the initiative would move
habeas petitions out of the overloaded California Supreme Court into the court
that conducted the original trial, to be heard by the original trial
judge. That judge is already familiar with the case, and he or
she can examine the facts more effectively, and more quickly than the
state Supreme Court, while the case is still relatively fresh.
Proposition 66 also would eliminate bureaucratic
barriers to carrying out executions, once cases have been fully
reviewed. Because of a court decision in 2008, execution “protocols” have
been subject to the state Administrative Procedure Act, a series of regulatory
hoops that were established to restrain agencies that oversee businesses.
Proposition 66 specifically exempts executions from an act that was never meant
to apply to carrying out court sentences.
Finally, in recent years, opponents of capital
punishment, citing the costs of death-row versus general-population
incarceration, have pushed the claim that the death penalty is simply not worth
the expense. But it is the decades and decades of appeals that increase
its costs. If fair but limited reviews were in place, executions could go
forward, death row incarceration times would decrease and so would the
costs.
Justice is government's most important product.
California’s death row contains murderers like Robert Rhoades, a serial
murderer and sexual predator who raped and tortured an 8-year-old boy for 10
hours before killing him. It includes Lawrence “Pliers” Bittaker, who raped,
tortured and murdered five teenage girls in the Los Angeles area in 1979.
Life in prison is not an adequate punishment for such monsters.
California can afford justice for the victims of
these horrible crimes, and Proposition 66 will provide it.
Kent S. Scheidegger is the legal director of
the Criminal Justice Legal Foundation in Sacramento. He wrote the habeas
petition reforms contained in Proposition 66.
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