Capitol Alert

Critics doubt California has enough lawyers for death penalty speed-up

San Quentin State Prison is the only death row for male inmates in California.
San Quentin State Prison is the only death row for male inmates in California.

With cases taking two decades or more to wind their way through the appeals process, both supporters and critics of California’s death penalty agree the system is broken. But opponents of Proposition 66, the November initiative aimed at speeding up executions, argue that proposed changes to shorten the timeline for appointing lawyers and filing petitions are convoluted and unfeasible.

During a meeting with The Sacramento Bee Editorial Board on Tuesday, they were particularly critical of a provision expanding the pool of lawyers eligible to take on death penalty appeals. Currently, sentences are appealed directly to the California Supreme Court, which assigns lawyers to defendants from state-funded agencies like the Office of the State Public Defender or, if none are available, private attorneys who meet certain qualifications.

Given the enormous backlog of cases, even that can take years. So in order to make lawyers available to defendants upon their sentencing to death, Proposition 66 would allow the courts to also appoint attorneys who are qualified for the most serious non-death penalty appeals. Those lawyers would have to accept the appointment in order to remain eligible to receive other non-death penalty cases in the future.

There are approximately 400 death row inmates currently awaiting counsel for their appeal or some other legal challenge to their sentence. Natasha Minsker, director of the American Civil Liberties Union of California’s Center for Advocacy and Policy, said there are simply not enough private attorneys willing to take on the cases for the low compensation provided, especially given the time crunch Proposition 66 would impose on preparation.

“They would just have to do this full time, which is not practical for most people,” she said.

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Death penalty opponents have presented a fix to move inmates through the system more quickly: an increase in funding for public defense agencies so they can hire more attorneys. Lawmakers have repeatedly rebuffed the proposal, they said.

“It is the simple – expensive, yes – but it is the simple and direct way to get the California Supreme Court to have the number of lawyers they need to deal with death penalty cases,” said Michael J. Hersek, director of the Habeas Corpus Resource Center, which represents death row inmates in nonprocedural challenges.

Hersek said the center only has 34 attorneys on staff, and unsuccessfully sought a budget increase for 10 more last year. He questioned why the proponents of Proposition 66, which include many prosecutors, wouldn’t add a provision guaranteeing more money for counsel.

“I suspect they won’t do it because when you give people lawyers in a timely manner, they get to the substance of the issues at hand,” he said. “On the substance of the cases, they often lose.”

Alexei Koseff: 916-321-5236, @akoseff