For decades the death penalty has been an emotional and almost undiscussable issue that has affected people in a myriad of different ways. But regardless of people’s philosophic points of view, it is important to be aware of the facts. So this article will address head on most of the common arguments that are used in favor of the death penalty, as well as some facts about and responses to them. Then it will suggest some additional facts and arguments that should also be considered as we all decide how best to proceed in this emotional area. Certainly all people are fully entitled to their own opinions in this or any other matter, but no people are entitled to their own facts.

Typically the proponents of the death penalty present five justifications for its implementation. They are that: 1) this is the appropriate punishment for the offender of such a serious crime, 2) rightful societal vengeance (often cited as an “eye for an eye”), 3) reducing to zero the chances that the offender will return to society, 4) deterrence against future violations by other offenders, and 5) closure for the families of the victims.

Let’s first discuss the possibility of offenders returning to society. As most people know, when someone is convicted of a “special circumstance” murder, the only two sentences allowed under California law and the laws of most other states are either the death penalty or life without the possibility of parole, otherwise known as “LWOP.” In times past a person receiving a “life” sentence could still be paroled, but now if an offender receives an LWOP, that is simply not possible under those laws without a pardon from the Governor – which is politically extremely unlikely. Furthermore, to my knowledge, no one serving such a sentence has ever escaped from prison. As a result, this is probably no longer a reason for the death penalty to be invoked.

Regarding the issue of closure for the families of the victims, consider that California has had only 15 executions since the death penalty was reinstated in 1978. But now California has more than 660 convicted offenders on death row. Of those offenders, 30 have been there for more than 25 years, 119 for more than 20 years, and 408 for longer than 10 years. The last two people executed were Clarence Ray Allen and Stanley “Tookey” Williams, both of whom were executed about 26 years after their offenses were committed. As a result, “closure” for the families, if it comes at all, comes after keeping the books open – for decades.

So not only does the death penalty not bring closure, it actually keeps the families of the victims on an emotional roller coaster. Because of the appeals and occasional re-trials, the families are forced for years to relive the grisly details of their loved-one’s death – over and over again. In many ways, this is actually using the grieving families as bit-players in a long-continuing political drama. And when it comes down to it, many of the families discover that it does not furnish much satisfaction to see the object of one’s hatred simply go to sleep when hooked up to a needle. So for all of these reasons, what we are doing is actually the opposite of closure for the victims.

In addition, since it is deemed by many people to be an “insult” to the memory of the deceased victim not to invoke the maximum punishment possible, there is a perceived obligation to seek the death penalty regardless of the costs, either human or financial. But if the maximum authorized punishment was a sentence to life in prison without the possibility of parole, the families would probably be emotionally satisfied with that result and get on with their lives.

Well then, what about deterrence against future offenders? Probably the only circumstances in which deterrence would be a factor would be offenses like murder for hire (both for the people paying for the deed to be done and for the killers themselves), murder after lying in wait, kidnapping in which the victim is killed, multiple murders or murders while already serving an LWOP sentence, and treason. These involve situations in which the acts are usually planned and well thought out in advance.

But the large majority of offenses for which the death penalty is imposed are for offenses that are not so planned. That is to say, most burglars and robbers do not plan in advance to kill anybody, but things get out of control and people are killed as a result. And the offenders that do make prior plans are often involved in heavily emotional situations like being jilted lovers, or people with severe psychiatric disorders, so they are not focusing upon deterrence anyway. Those realities, coupled with the fact that most offenders never feel that they will ever be caught at all, negate the effects of deterrence for most offenses.

One more fact enters into this equation as well. As a practical matter, if a person knows that he has committed an offense that would qualify him for the death penalty, that person tends to feel with some justification that he has nothing more to lose. That belief in turn results in the perpetrators killing witnesses to the offense to keep them from testifying against them, and also killing the police officers who attempt to arrest them. So in effect, what we end up with is the opposite of deterrence.

Regarding the punishment of the offender, I have no particular wisdom to suggest, other than saying that in many ways serving a sentence of life without the possibility of ever being released would in many ways be a more severe sentence for most offenders than actually being executed.

That leaves the issue of societal vengeance. Of course, this is a complicated and multifaceted issue. On the one hand, there has been an historical and even biblical rationale that the proper penalty for wrongly taking the life of another is to forfeit one’s own life. But on the other hand, it is hard to justify our country as being the world’s champion of human rights if it is so at odds with much of the rest of the world on the issue of capital punishment.

For example, since California reinstated the death penalty in 1978, no fewer than 60 other countries have chosen to abolish it. Although there are dozens of countries that still have the death penalty on the books, only six of those countries, including the United States of America, are responsible for 90 percent of all of the executions. The other five are China, Pakistan, Iran, Iraq and the Sudan. As such we are keeping pretty lowly company in the area of human rights

So that is a short discussion about the five traditional arguments in favor of invoking the death penalty. Once again, I realize that this can be an emotional subject, and that many people who present information like this are considered to be “bleeding heart liberals.” But I was a trial court judge in Orange County from the time I was appointed by Governor Deukmejian at the end of 1983 until I retired in January of 2009, and I wanted to share with you for your consideration the facts as I have seen and observed them.

But there are additional important facts that also affect the discussion as well. One of those facts that is almost unknown by the general population is the financial cost of death penalty cases. Estimates are that it costs taxpayers seven times more money to pursue death penalty cases than it would to try, convict, pursue all appeals, and keep the perpetrator in prison for the rest of his life. More specifically, in 2008, the California Commission for the Fair Administration of Justice estimated that it costs taxpayers about $114 million more per year to process death penalty trials, along with all of the accompanying appeals and writs of habeas corpus proceedings, than it would to process trials in which the maximum sentence were to be life without the possibility of parole. And if additional recommended reforms to the system are instituted, that amount will jump to about $237.7 million per year. People do not understand these facts, but the costs of the extra investigators, attorneys, jury selection, court reporter’s transcripts, appeals, habeas corpus proceedings, and extra procedural safeguards are staggering!

Why is this process so complicated and expensive? As Justice Sims wrote in a concurring opinion in Bennett v. Superior Court, 146 Cal.App.4th 344, 418 (2006), as a practical matter there really are four distinct trials in death penalty cases. The first is a trial (almost always with a jury) that addresses the possible guilt of the offender. In the second trial, assuming the offender is convicted, the jury decides whether the penalty should be death or life without the possibility of parole. Then the third trial focuses upon the jurors in the case who arrived at those first two decisions in order to see if any of them were involved in any form of misconduct, such as telling other jurors about their own personal experiences in life.

The fourth trial confronts the trial attorneys who were involved in the case. At this point, the prosecutors are “tried” to see if they presented their arguments unfairly or too emotionally, and the defense attorneys are “tried” to see if by chance they did not afford the offender the effective assistance of counsel on any material issue. These “trials” usually take place in habeas corpus proceedings in federal courts after the state appeals have finally run their course. At this time the defense is also entitled to virtually every scrap of paper prepared by any law enforcement officer that ever had anything to do with the investigation or any of the witnesses in the case.

How has this situation been allowed to get so extreme? Well, first of all we are a compassionate society, and we seem to be institutionally unwilling to allow anyone to be executed unless all avenues of innocence and mitigation have been explored.

Secondly, some people are so radically opposed to the death penalty that they have become zealous in their dedication to an exhaustive defense, or even to delay just for the sake of delay. For them it is a question of morality. Therefore no approach is too extreme if it has even the slightest hope of delaying the final outcome. And in actuality some of these seemingly extreme arguments have been successful in the past in obtaining a reprieve down to an LWOP, or even an exoneration of the underlying offense.

As a result, and also as a practical matter, all cases involving the death penalty have become expensive beyond belief, and are delayed well beyond reason. In fact, I was the judge on the Preliminary Hearing in the death penalty case of a man named Teofilo Medina, who was shown in my court to have robbed four ARCO Mini Marts and thereafter killed the non-resisting clerks by shooting them in the back of the head at point-blank range. In short, he was a bad man.

But my hearing took place in 1987, and he was eventually convicted and sentenced to death in 1988. He has been on Death Row ever since that time, and has seven attorneys still actively working on his appeal, which has not yet even been heard.

This is not at all an exception. Remember Richard Ramirez, otherwise known as the “Night Stalker?” He was convicted in 1989 of 13 murders, 5 attempted murders, 11 sexual assaults and 14 burglaries. His first appeal went directly to the California Supreme Court, as is required by law. This is an enormous expenditure of resources. In fact, the Supreme Court’s statistics show that it spends about 20 percent of its time just on death penalty appeals. But even so, Ramirez’ appeal was not heard until June of 2006, which was 17 years after his conviction. Even though the appeal was decided about 60 days later, if his remaining appeals and writs are heard within the average time schedule of additional writs and appeals, his convictions will not be final until the year 2114 – at the earliest.

And at least Ramirez has appointed appellate counsel. Currently only two of 17 inmates sentenced to death in the year 2002 have had attorneys appointed for their automatic appeals, and none sentenced in 2003 or thereafter have had any appointed at all. As a result, of the almost 700 prisoners on death row, 88 inmates still have not had counsel appointed for them, and none of them to my knowledge have the funds to hire attorneys themselves.

Why is there such a problem finding attorneys to represent these people? Because one must be experienced in this specialized field, and those professionals can make a great deal more money on other matters than what the state will pay them on these death penalty cases. In addition it is often emotionally draining work. So the number of attorneys willing to accept the appointment is declining, and the number of unrepresented sentenced prisoners continues to increase.

But there are many other serious problems in addition to the financial ones. Although about 60 percent of the general population continues to voice support for the death penalty, more and more of those who are required to impose it are withdrawing their support. That includes prosecutors, juries, judges and prison officials. As such, the numbers of death penalty convictions nationwide dropped from 317 in 1996 to 128 in 2005. And this withdrawal of support also includes medical doctors, who are increasingly seeing their participation in the death penalty as a violation of their Hippocratic Oath.

Another large issue that must be considered with regard to the death penalty is both fairness as well as the appearance of fairness based upon things like racial disparities. Statistics show that the death penalty is invoked a great deal more often when the defendant is a non-white, or when the victim is white. In addition, although the U.S. Supreme Court held several years ago that it was unconstitutional to execute juveniles, people are increasingly concerned that we are executing people who are mentally retarded.

Additional problems are seen when either the prosecutors or the judge on the case are up for election in the near future. Are the critical decisions about life or death being made for legal reasons, or for political ones? Many people are having second thoughts about these things and are beginning to believe that this is something with which a civilized society should not be involved.

We are also more frequently seeing the phenomenon of the families of the victims speaking out publicly against the execution of the convicted perpetrators. One of these is a man named Bud Welch, whose daughter died at the hands of Timothy McVeigh in the bombing of the federal building in Oklahoma City. As Mr. Welch continued to think about the situation, he stated publicly that he had come to two realizations. The first was that even after McVeigh would be dead, he himself would still not actually feel any better. And the second was that he decided that all of this rage and hatred against McVeigh in the name of his daughter was hardly a fitting tribute to her memory.

Finally, there is the question of making a mistake. With the development of DNA evidence that is considered to be more than 99.9 percent reliable, programs like the “Innocence Project” have shown that more than 200 inmates have been falsely convicted for crimes they did not commit. And that includes 15 defendants that were sentenced to death. Of course, in many ways that can be turned into an argument in favor of future death penalty sentences where DNA evidence would be used to obtain the conviction. But increasingly people have been questioning the death penalty because of its inability to correct mistakes.

We are human, and we can make mistakes. The largest numbers of false convictions are based upon erroneous eyewitness identifications. Others come for various reasons based upon false confessions by the defendants or unreasonable appeals to the emotions of the jurors. So an increasing number of people are concluding that for many or all of the reasons that have been presented here it is unworthy for an enlightened society to involve itself in the killing of criminal defendants.

In that regard, the legislature of the State of New Jersey passed legislation that was signed by the governor repealing the death penalty, which makes it the first state in several decades to do so. But several other states have imposed a moratorium upon its utilization until all of these issues can be studied further. In fact, this position has become so prevalent around the world that no country that imposes the death penalty is held to be qualified to join the European Union.

So whether you believe that the death penalty is appropriate or not in theory, I believe the facts show unmistakably that the system is dysfunctional and that the laws are not working as intended. And as a practical reality, in today’s real world they cannot be made to work.

Accordingly, I have personally concluded that the families of the victims would be better served by its repeal; the huge amount of tax money would be better spent on improving our roads or paying the salaries of our police and firefighters; both the trial and appellate courts could better devote their resources and energies by addressing numbers of other issues in our society that are crying out for attention; and our country could rejoin most of the rest of the civilized world by repealing this practice. One way or the other everyone will benefit, because the system we have today is neither swift nor sure nor effective.

Judge Jim Gray (Ret.)