As California voters weigh two ballot measures this fall to either abolish the death penalty or institute changes that aim to expedite it, fewer counties are sending murderers to death row.
A Bee analysis of death row records found that the verdicts since 2011 come from just 14 of California’s 58 counties. In each five-year period before that – going back three decades – at least 22 counties had imposed death sentences.
Prosecutors say they are weighing the decision to pursue capital punishment more carefully, considering the cost of the trials, the human toll and changing sensibilities of their constituents. The result is that the death penalty is being imposed in California at the lowest level since it was reinstated in 1978, while the vast majority of death sentences now come from a handful of counties in Southern California.
Critics argue the geographic disparity in sentencing is another consequence of the arbitrariness of the death penalty, which is susceptible to the impulses of local prosecutors who decide when to pursue capital punishment.
Ana Zamora, a criminal justice policy director at the American Civil Liberties Union of Northern California who is managing the campaign against the death penalty speed-up measure, compared it to research that has found nonwhite defendants are more likely to receive death sentences, particularly if their victim is white.
“It’s very concerning that your likelihood of being sentenced to death in California has everything to do with the color of your skin and the county that you committed your crime in,” she said. “It’s unfair.”
Supporters of capital punishment counter that it must be maintained for the worst of the worst crimes: murderers who tortured or raped their victims, child killers, serial killers or those who murder police officers. Riverside County District Attorney Michael Hestrin said local control is a strength, not a weakness, of the system.
“Criminal justice policy should as much as possible reflect the community, because it’s a personal thing,” he said. “If they don’t have a say in how justice is carried out, then they begin to lose faith.”
In many counties, prosecutors now so rarely seek the death penalty that the policy is effectively in disuse.
The list includes some major population centers like Santa Clara County, a liberal stronghold with more than 1.9 million residents, where a jury last sentenced someone to die in 2010. The four counties with the highest homicide rate in recent years – Monterey, San Joaquin, Merced and Tulare – are a politically diverse bunch on the Central Coast and in the Central Valley that have not sent anyone to death row in at least seven years.
The second-most populous county in California last imposed the death penalty six years ago.
Encompassing about 3.3 million people, San Diego County is also the biggest in the state with no death sentences since 2011. It’s an unexpected turn for the traditionally moderate area with a Republican district attorney, which in the five prior years accounted for five new death row inmates.
Public Defender Henry Coker takes pride in that fact. Since assuming the role in 2009, he said he has been particularly aggressive about pursuing resolutions to death penalty cases before they go to trial.
Though he would have once saved the best arguments for the jury, Coker said he now puts an emphasis on engaging the District Attorney’s Office from the first day of the case. That can involve hundreds of hours spent researching mitigating factors and convincing prosecutors that the death penalty is not warranted.
“People don’t just wake up in the morning and commit these horrific crimes. That must be studied,” he said. “The people who commit these crimes generally come with a history that explains why they are where they are.”
Coker credited District Attorney Bonnie Dumanis for being personally involved in every case and taking a holistic approach to capital punishment. But while the number of sentences has fallen dramatically over the past decade, Dumanis, a supporter of the death penalty and the November initiative that aims to expedite the process, said her approach has not changed since she took office in 2003.
“Each case presents its own unique facts,” she said. “We’re not backing away in any shape or form.”
Though no one in California has been executed in more than a decade because of legal challenges to the lethal injection cocktail, other counties continue to pursue death sentences at some of the highest rates in the country,
Since 2011, almost 85 percent of death sentences in the state – 66 new death row inmates – have come from five neighboring counties in Southern California. Los Angeles, Riverside, Orange, Kern and San Bernardino counties represent about 48 percent of the state population and 49 percent of homicides during that time.
San Bernardino County District Attorney Mike Ramos said he sometimes encounters families that would rather he not seek the death penalty, “not because they don’t believe in it, but because they don’t want to be dragged through the appellate system” for decades. But he believes that with a fix to the judicial process like the proposal to speed executions, that would no longer be a problem.
The fact that juries continue to send defendants to death row, even after opponents have campaigned for years to abolish it, he said, shows that Californians still support capital punishment.
“Victims’ rights. That’s what drives me every day to do this job,” Ramos said. “I seek the death penalty for victims and their families and what they’ve suffered.”
The country as a whole is seeing patterns similar to those in California as support for the death penalty declines among the public and the legal community.
A Gallup poll last October found 61 percent of Americans in support of the death penalty and 37 percent opposed, the closest responses have been on that question in 43 years. In 2015, there were 49 death sentences nationwide, the lowest number since the U.S. Supreme Court required states to overhaul their sentencing statutes in 1972 and down from a record of 315 in 1996. The number is projected to be even fewer this year.
With 20 states already having abolished the death penalty, those verdicts are also coming from fewer places. Only 16 counties in the entire country imposed five or more death sentences between 2010 and 2015, according to a recent report by the Fair Punishment Project at Harvard Law School. Five of those were Los Angeles, Riverside, Orange, Kern and San Bernardino.
“It could be that they’re out of step with America,” said Rob Smith, a senior research fellow at Harvard Law School who directs the Fair Punishment Project. He compared Southern California to a “new Deep South” for the death penalty, as even many conservative states hit the brakes on capital punishment.
In 2015, Riverside County imposed eight death sentences, while Los Angeles County imposed three – more than the entire state of Texas. Juries in Georgia have not sentenced anyone to die since June 2014, though executions are being carried out at a record clip.
“It suggests that the death penalty is an excessive punishment,” he said. “If it were serving a purpose, it would be used more regularly.”
Many California prosecutors do seem more cautious now about pursuing the death penalty. Since 2011, the nine counties of the San Francisco Bay Area have collectively sent only three people to death row. That’s down from 12 in the prior five years.
Santa Clara County District Attorney Jeff Rosen said that, since taking office in 2011, he has only looked closely at capital punishment in 10 homicide cases with aggravating factors. He has sought the death penalty in two, involving the kidnapping and murder of a 15-year-old girl on her way to school and the rape and killing of a baby. Both trials are still pending.
“Matters of race and class play a significant role in who is arrested, who is prosecuted, who is punished and for how long,” Rosen said. “It gives me pause in being too cavalier about applying the death penalty and encourages humility and self-restraint.”
Deciding when a crime crosses that line can be an exhaustive procedure. Before Rosen makes the final decision, he reviews evidence with senior prosecutors, talks with the victim’s family about their wishes, and even invites the defense to explain why a death sentence is not warranted. Other district attorneys described a similar process.
“Seeking the death penalty is not just an academic exercise,” Rosen said. “I want to be able to explain my decision to seek death or not to seek death in a way that people in my county will understand.”
Prosecutors often talk about their work as a reflection of the will of the community – and the geographic disparity of sentencing loosely tracks public opinion in California. Seven of the nine Bay Area counties were among the minority to support an unsuccessful 2012 initiative to abolish the death penalty. In four of the five Southern California counties with the highest number of death sentences, more than 60 percent of voters rejected the measure.
But those connections extend only so far. Los Angeles County approved the 2012 initiative with nearly 55 percent of the vote; since then, it has sent 18 more inmates to death row. San Diego County rejected the measure by nearly same the margin.
The disconnect fuels criticisms that the California death penalty is too reliant on the personalities of individual district attorneys, who are elected and face political ramifications for their decisions.
It also inspires suggestions on how capital punishment might be improved: Leave the decision up to the state attorney general, rather than county prosecutors, for a more uniform approach. Reduce the aggravating factors that can be used to seek the death penalty, a list of dozens that includes killing a police officer or committing murder from a motor vehicle.
Steven L. Harmon, public defender for Riverside County, attributed its status as a state and national leader in death penalty sentencing to a history of abuse by prosecutors. Since 2011, Riverside County juries have imposed 24 sentences, two fewer than Los Angeles County, which has four times the population and seven times as many murders.
“The people in Riverside are not death-hungry,” Harmon said. “But if other jurors in other counties were given all of the chances that Riverside County jurors were given … I think the numbers would be higher as well.”
Even that may be changing. So far this year, Riverside County has sent only one inmate to death row.
Hestrin, the new district attorney, said he is “a little more restrictive” when it comes to the death penalty than his predecessors. Though he supports the November initiative to expedite executions, he also believes they should be rare, “both because of what’s right and also because of the cost.”
When he took over in 2015, Hestrin conducted a standard review of the office’s 22 pending death penalty cases and chose not to continue with seven of them. During his first year, he said, he instituted changes to their deliberative process, like inviting the defense attorneys to make a presentation before bringing charges, and chose to seek death in only four of 11 cases they considered.
It reflects perhaps a conventional wisdom mounting in the legal community after decades of battle over capital punishment. Hestrin personally tried seven cases in his career, which he called “excruciating for the victim’s families and everyone involved.”
“I understand the difficulties of trying these cases, both legally and personally. It is a very trying thing,” he said. “You’re going to come face-to-face with the defendant’s humanity.”
Editor’s Note: This post was updated at 1 p.m. Sept. 21, 2016 to correct the name of Santa Clara County District Attorney Jeff Rosen.