Foon Rhee

A deadly disparity in justice

Heavy, black metal doors lead to California’s death row at San Quentin State Prison. Fourteen more inmates were added in 2015, by far the most death sentences of any state.
Heavy, black metal doors lead to California’s death row at San Quentin State Prison. Fourteen more inmates were added in 2015, by far the most death sentences of any state. Los Angeles Times

Capital punishment is fading away across much of America. There were only 28 executions this year, the fewest since 1991, and 24 of them were in just three states, Texas, Missouri and Georgia.

California hasn’t executed anyone since January 2006, and with the legal logjam, there’s no telling if or when that will change.

But no matter, a small slice of California keeps sending more people to death row, year after year.

In 2015, in fact, otherwise proudly liberal California led the nation in death sentences with 14, even as the national number dropped to 49, the fewest since capital punishment was reinstated in 1976, according to the Death Penalty Information Center.

Of California’s death sentences, eight were in Riverside County (including five of the eight Latinos sentenced to death nationwide), plus three in Los Angeles and one in Orange.

It’s a startling disparity even when population and crime rates are taken into account, and it’s no statistical blip. These three counties also had nine of the state’s 14 death sentences in 2014. And between 2000 and 2013, they recorded 170 of 292 death sentences statewide. At the same time, about half of California’s counties didn’t have a single one.

If we’re going to have the death penalty, shouldn’t it be at least somewhat consistent across the state?

We all know these are brutal, heinous crimes. But when a murder is a death case in one county, but a very similar slaying just across a county line isn’t, that’s not equal justice.

It’s one reason why The Sacramento Bee’s editorial board ended its longtime support for capital punishment. In a series of editorials in September 2012, we also highlighted the cost, ineffectiveness and dishonesty of California’s broken death penalty system and backed a ballot measure to replace it with life without parole. Proposition 34 failed, but voters may get another chance to abolish the death penalty next November.

This uneven use of the death penalty isn’t just in California. What the ACLU calls California’s “killer counties” are among the 2 percent of U.S. counties that produced nearly two-thirds of all death sentences this year and sent more than half of all inmates now on death row.

While there’s no clear and proven explanation for that concentration, Robert Dunham, executive director of the Death Penalty Information Center, says one major factor is who happens to be district attorney in those death penalty counties, which he says often have other flaws in their criminal justice systems.

Riverside County has had three different top prosecutors since 2010, and the death sentences keep churning out.

In November 2010, District Attorney Rod Pacheco, who made no secret of his support for capital punishment, was defeated by Judge Paul Zellerbach, who pledged to be more selective in pursuing the death penalty. In 2011, Zellerbach’s first year in office, he filed only two death cases. But in the last three years of his term, Riverside had 12.

In June 2014, Zellerbach was unseated by veteran homicide prosecutor Mike Hestrin. He made his name by winning seven death sentences, but has taken a measured approach. Of the 22 pending death cases when he took office in January, he decided not to proceed with the death penalty in six. He also didn’t seek death in seven of 11 new eligible cases.

While this year’s death sentences came on his watch, all the cases started before he took office. There’s no doubt that they’re truly horrific, each in their own way. Juan Coronado was sentenced to death for shooting an 85-year-old man in the face after he had been beaten and thrown in a car trunk by Coronado’s accomplices. Tyrone Harts was convicted of killing his ex-girlfriend and setting her on fire, leaving her young children to try to put out the flames. Belinda Magana and her boyfriend Naresh Narine were condemned for scalding and beating her 2 ½-year-old son to death.

Hestrin says he isn’t deciding to seek the death penalty “willy-nilly” – only when it is necessary for justice and only after hearing from defense lawyers. “It’s not a trivial thing to ask a jury to take someone’s life,” he told me.

At the same time, he says, he wants to represent his constituents, who by and large support the death penalty. He notes that while 52 percent of voters statewide opposed Prop. 34, 62 percent of Riverside voters voted “no.”

As for the geographic disparity, Hestrin says it doesn’t trouble him that much because he believes there should be local control over the ultimate punishment.

Death penalty foes disagree. “We think there should be consistent application of the death penalty,” Dunham said.

But how would you go about fixing the system to make that happen?

One approach, Dunham says, is to limit prosecutors from abusing their power by reducing the number of the often vague “special circumstances” they can use to pursue the death penalty. When the Legislature reinstated capital punishment in 1977, there were 12 special circumstances. After a series of voter-approved initiatives, there are now 39 death-eligible crimes.

Others have suggested centralizing death penalty decisions in the Attorney General’s Office – similar to the federal system in which the U.S. attorney general makes the call in all cases.

No matter the process, however, it still comes down to juries.

Riverside County Public Defender Steven Harmon, who opposes the death penalty, has an interesting theory on that.

He says jurors might be more willing to recommend the death penalty because they know that California hasn’t actually executed anyone for so long and that there’s a backlog of 745 inmates on death row. So most likely they won’t be responsible for someone’s death, yet they can give many victims’ families what they want and make a statement on behalf of the community.

It’s “human nature and common sense,” he told me.

Probably so, but that doesn’t sound much like justice, either.