In 2010, the district attorney of San Diego agreed to a sentence of life in prison with no possibility of parole in a case involving the sexual assault and murder of two teenage girls. In explaining her decision, District Attorney Bonnie Dumanis said California’s death penalty is “a hollow promise” to victims.
That statement is even more accurate today, four years later.
Since California reinstated the death penalty in 1977, we have sentenced more than 1,000 people to death. We have executed just 13. Currently, 749 people live on California’s death row, the largest death row in the country. Ninety-six more have died of other causes while their cases were pending.
As shocking as these statistics are, we should perhaps be more concerned about this one: More than 100 California death sentences have been reversed due to serious constitutional errors, including innocence.
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I served as the executive director of the California Commission on the Fair Administration of Justice. The commission was created by the California Senate to investigate causes of wrongful conviction and problems with the death penalty in California.
We found that California death penalty cases take an average of 25 years to move through the constitutionally mandated post-conviction review process. It’s something of a misnomer to even call this an “average” since the vast majority of cases have not completed post-conviction review.
Our commission concluded that the primary cause of the delay is the failure to provide adequate funding to hire the attorneys and court staff needed to work on death penalty cases. A person sentenced to death today must wait five years for the first attorney to be assigned to his case. One death row inmate has waited 17 years for an attorney to be appointed for the review stage called habeas corpus, the stage where courts look at claims such as actual innocence.
Of the cases that are fully resolved in federal court, we found that 2 out of 3 California death sentences have been reversed. That is an error rate we would not tolerate in most areas of government.
Cases are reversed for many reasons, including incompetent defense attorneys who literally slept through trial, prosecutors who hid evidence, mistakes by judges and, yes, innocence. The Death Penalty Information Center maintains what is considered the definitive list of innocent people exonerated from death row across the country. Three are from California.
So why not just cut appeals to speed up executions? Because the death penalty comes with a deadly finality that we cannot ignore.
Our commission did make recommendations about how we could preserve justice, protect the innocent and make the process move a little faster. These recommendations included doubling the amount of money we now spend on the death penalty, a figure we calculated as $130 million each year. These recommendations have been ignored.
If the death penalty exists in name only, then why do prosecutors continue to seek it? More and more are choosing not to as they realize that justice for all may be better served with a punishment of life in prison without parole.
Gerald Uelmen is a professor of law at Santa Clara University School of Law and drafted the recommendations of a state commission that advised lawmakers on capital punishment in 2008. The report is available online at www.ccfaj.org.