Editorial: Death penalty is applied unevenly statewide

09/11/2012 12:00 AM

09/15/2012 7:40 PM

A bedrock principle of our legal system is that justice is applied equally. No matter who you are or where you live, you're the same in the eyes of the law.

But in California, the most serious punishment – the death penalty – is not being applied equally.

Whether defendants get the death penalty depends as much, if not more, on where they did their crime as what they did. This disparity can't be considered evenhanded justice.

In fact, the vast majority of death sentences are being handed down in a handful of Southern California counties. In effect, the death penalty has already ended in most counties.

In the first half of 2012, there were 11 death sentences imposed in the state. Nine were in Los Angeles or Riverside counties.

Last year, California juries delivered only 10 death sentences, the fewest since the state reinstated capital punishment in 1978. Eight were in Los Angeles, Orange and Riverside counties. Those three counties also accounted for 24 of 29 death sentences in 2009 and 16 of 29 in 2010, according to the ACLU of Northern California.

On the other extreme, since the start of 2009, 40 of California's 58 counties have not had a single death sentence. Not one.

This geographic disparity is not a statistical blip.

Of the 266 death sentences statewide from 2000 through the first half of 2012, 145 – more than half – came in Los Angeles, Orange and Riverside counties. Twenty-eight counties didn't record a single death sentence, and 16 others had only one or two, according to the ACLU figures. Sacramento County totaled nine, but only three since 2003.

While there can be little argument that the disparity raises fundamental questions of fairness, there's a big dispute over the reasons for the differences.

Some say there are proportionately more death sentences in counties with the most violent crime, or in politically conservative areas.

But the numbers are so skewed that those explanations fall short. In its 2008 study, "Death by Geography," the ACLU found no correlation between death sentences and factors such as murder rates, population densities and voting patterns. Since 2000, for instance, there have been four times more death penalty cases in liberal Alameda County than conservative Kern.

Counties with the most death sentences have little in common, while counties with similar demographics have very different records.

"California's death penalty has become so arbitrary that the county border, not the facts of the case, determines who is sentenced to execution and who is simply sentenced to die in prison," the ACLU report concluded.

Sentences to Latinos rising

There is also a potential overlap with ethnicity.

While African Americans have long been overrepresented on California's death row, the number of Latinos on death row has historically been well below the number in the general population. In the last few years, however, the number of Latinos sentenced to death has been rising rapidly, in part because more cases are coming from counties with sizable Latino populations.

John Zitny, the chief deputy public defender in San Bernardino County, says that one major reason behind the geographic disparity is economics: Larger, wealthier counties can better afford to pursue the death penalty. He argues that several recent death cases in his county would not have gone forward in a smaller, poorer county.

"That's obviously not fair," Zitny says.

Much of the disparity may come down to who is district attorney in each county. With the ever-expanding list of "special circumstances" that can qualify a case for the death penalty, prosecutors have wide latitude over when to pursue capital punishment.

Death penalty proponents say that's as it should be in our representative democracy. They say elected district attorneys, accountable to the people, should represent local views. Prosecutors say they should have the same discretion on the death penalty as they do over other charges.

Rod Pacheco, Riverside County's district attorney from 2007 to 2011, says he has "no second thoughts" on any decisions he made on when to seek the death penalty. He also says he never used a potential death sentence to coerce a guilty plea. So, for example, he would not have offered the plea bargain accepted by sex offender John Gardner, who was spared a possible death sentence when he pleaded guilty in San Diego in 2010 to murdering teenagers Chelsea King and Amber Dubois during attempted rapes.

Pacheco was defeated in November 2010 by Judge Paul Zellerbach, who pledged during the campaign to be more selective in pursuing the death penalty. In his first year in office, Zellerbach filed and won just two new death penalty cases, compared with six death sentences in the last year of Pacheco's term.

Zellerbach also took a second look at 56 pending death penalty cases he inherited when he took office; he has withdrawn capital charges in 10.

Should AGs make the call?

While he may disagree with his predecessor on how aggressively to pursue death penalty cases, Zellerbach does agree that it's entirely appropriate for district attorneys to have that power.

If there is a geographic disparity, he says, it's legitimate because each county has its own crime issues; prosecutors have different levels of experience in handling death penalty cases; and the demographics of juries are different. It's not unequal justice, he argues, because every jury in California is given the same instructions in weighing the death penalty.

There's no easy fix to the disparity. To make sure federal cases are evaluated the same way no matter where in the nation they happen, the U.S. attorney general's office decides when to seek the death penalty.

Of states with the death penalty, Delaware and New Hampshire also give that authority to their attorney general; there are not enough cases in those two small states to determine if that centralized process reduces geographic disparities.

In California, Pacheco is among those who say it would be logistically impossible and politically difficult for the state attorney general to take control of death penalty decisions statewide.

Yet without a solution, the death penalty will continue to be applied unfairly across the state. Are we really willing to accept that someone could get life – or death – based on which side of a county line the victim happened to die?

That leaves far too much to the whims of fate. That is not evenhanded justice.

A DYSFUNCTIONAL DEATH PENALTY

A series of editorials

SUNDAY, SEPT. 9: Why The Bee is ending its historic support for capital punishment in California.

TODAY: The death penalty is being applied unequally across California counties.

WEDNESDAY: Does the death penalty deter crime? Research doesn't bear that out.

THURSDAY: Why can't California carry out executions like Texas? It is not a legal system we would want to emulate.

FRIDAY: Why voters should support Proposition 34, which would end the death penalty and replace it with life imprisonment without the possibility of parole.

SUNDAY: Response from readers and experts.

Agree? Disagree? Submit letters to www.sacbee.com/sendletter.

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