Schwartz & Powell

The Death Penalty- A Ventura Criminal Defense Lawyer's Thoughts

by Steven D. Powell Attorney at Law

Any Ventura County criminal defense lawyer knows it costs a fortune to prosecute death penalty cases.  I knew this when I was a Deputy District Attorney for Ventura County prosecuting capital murder. Nothing defending death penalty cases has changed my mind.

What I would like you to think about today is the cost of the death penalty system in California.  It costs a lot of money the State can't afford.

You need to understand:  if you want to execute rather than imprison for life, you need to be right.  You must be right.  In every case.  In every instance.

Execution is “homicide”; the Coroner’s Death Certificate states the prisoner’s “cause of death” as homicide; the “manner of death” is execution.  This homicide is “excusable”  in the mind of the law because a jury and judge found the defendant guilty and the penalty appropriate “beyond any lingering doubt.”  That is the highest burden of proof the State faces in any case, a higher standard than the conventional “proof beyond a reasonable doubt” standard applicable to all other criminal cases.

Fundamentally, before a jury can vote to execute, and before a Judge can sign a death warrant commanding the warden to kill the prisoner, the State has to prove beyond any question, even a “lingering doubt,” that the defendant deserves death as the appropriate penalty for his or her crime.

If we are to have a Death Penalty in California, it is altogether fit and proper that this burden of proof be satisfied by reliable, competent and believable evidence.  No experienced and sensible prosecutor or judge would disagree with this proposition. 

This is so because sensible prosecutors and judges know that this standard hopefully prevents execution of innocent men and women and ensures the penalty is imposed only when mandated by the facts and the law.  If the law allowed execution of the innocent, the entire reason for the  idea of “excusable homicide” disappears.  If the condemned is not guilty but is nevertheless executed, then the homicide is not legally “excusable.” 

It would be State sanctioned Murder.  The State of California can and must  never be allowed to murder its citizens.  As citizens we must never countenance any system that allows the State to commit murder.

Illinois abolished the death penalty after post-trial and post-appeal DNA analysis exonerated a substantial percentage of its death row population.  Illinois operated under a broken death penalty system because it did not devote the considerable financial resources necessary to prove “beyond a lingering doubt” the truth and validity of its death cases. That’s why so many innocent people were sitting on death row until belatedly exonerated.

Illinois death penalty procedure was broken; Illinois taxpayers did not want to pay additional taxes to fix it; so Illinois substituted life without possibility of parole instead of death as the penalty for capital murder.

California’s death penalty system is not broken.  As far as I know it works as well as one can expect so as to prevent State sponsored murder in the legal sense of the word murder. It is not perfect but it is not broken.

The hot-button death penalty issue here in California is whether the voters wish to pay taxes to fund the death penalty.  This blog does not here discuss moral, religious or other reasons to support or oppose the abolition of the death penalty.  As a matter of full disclosure let me say I oppose the death penalty and hope the voters abolish the Death Penalty this November when we vote on the issue.  I think the penalty is morally suspect and intellectually bankrupt.

But I know the death penalty system in California is expensive.  It is generally accepted and fully supported by judicial and academic research that the death penalty system cost California taxpayers $4 billion dollars in taxes since 1978.  California has executed 13 prisoners over those years at an average cost of $300 million dollars.  (Imprisoning a prisoner costs about $60,000 dollars per year.) 

Informed commentators predict California taxpayers will spend $184 million dollars per year in the foreseeable future unless voters abolish the penalty in November’s election.

It goes without saying that no social progressive favors the death penalty. 

What isn’t so obvious is that no fiscal conservative should support the death penalty at a time when we are laying off police officers, firefighters, teachers and cutting other essential taxpayer supported services. 

While the death penalty “system” isn’t “broken," the fiscal decision to fund it is reckless, irresponsible, ideological and completely ignores the simple, irreducible fact that California is going broke and cannot afford to buy its perceived "perfect justice."

It's time to rethink whether the death penalty is worth the tax dollars California spends on it.  Could not those dollars more meaningfully be allocated to life-affirming public services such as police protection, fire protection and education?

The decision will be ours this November.  Let's think about it.

Steven D. Powell, Attorney at Law

Schwartz & Powell