Since When Don't We Put A Price Tag On Justice?

By Ty Alper, cross-posted from Huffington Post

Faced with unassailable evidence that the death penalty in California costs hundreds of millions of dollars per year, death penalty supporters tend to respond with what is intended to be a conversation stopper: "You can't put a price tag on justice."

But wait a minute. Don't we already? Only in a world with unlimited resources could we run government programs with no regard for their price tags. Unfortunately, that is not where we live today. Consider Governor Jerry Brown's latest budget proposal as reported by the New York Times:

Struggling to contain mounting state budget shortfalls, Gov. Jerry Brown on Monday proposed $8.3 billion in spending cuts, including slashing state employees pay and spending on social programs and prisons. He warned that California would have to impose another $6 billion in cuts on public schools and higher education if voters fail to approve his initiative this fall to raise sales and income taxes.

My kids go to public school in California and I teach at a public law school. I would love to be able to say, "You can't put a price tag on an education." But that would be ridiculous. It happens all the time.

The implication in the death penalty context, of course, is that only the most heartless among us would relish telling the mother of a murder victim that the person who killed her child is not going to be executed because, well, it just costs too much.

But here's what we need to remember: about half of all rapes and murders in California go unsolved. A 2009 survey asked law enforcement officials what interfered with effective law enforcement. The number one answer was lack of resources. (Last on the list was "insufficient use of the death penalty.") Thousands of rape kits across the state sit unexamined, because there is no money to conduct DNA testing.

The victims of unsolved murders and rapes are no less deserving of justice than the victims of solved crimes. The SAFE California initiative that will be on the ballot in November would eliminate the death penalty, save $1 billion that we desperately need over the next five years, and create a "$100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases."

The next time you hear someone say that you can't put a price tag on justice, ask them if they would say the same thing to the family members of victims of the 1,000 murders that go unsolved in California each year.

I'd love to live in a California with no price tags. Until then, the price tag on the death penalty is busting our state's budget.

Ty Alper is an assistant clinical professor of law at the University of California, Berkeley, School of Law.

It's Official! The Initiative To Replace California's Death Penalty Qualifies For The November Ballot

The SAFE California Act, the initiative to replace California's multi-billion dollar death penalty with life in prison with no possibility of parole, has qualified for the November ballot.  This is epic.

With a death row population over 720, it is undisputed that California's death penalty system is broken beyond repair.  Despite over 30 years of sentencing more and more people to death, only about 1% of them have actually been executed –  a total of 13 executions since 1978, and none since 2006. It is a costly (an exhaustive study concluded that "California taxpayers have spent roughly $4 billion), time-consuming, unreliable and unworkable system that serves no useful purpose. Meanwhile, it drains judicial resources and diverts much-needed funds from truly effective public safety programs.

When it passes, SAFE California will require those convicted of murder to work and pay restitution to victim families through the victim compensation fund. And it sets aside $100 million in budget savings for local law enforcement for the investigation of unsolved rape and murder cases. Because while we spend time and resources on those already tried and convicted, in an average year, 46% of murders cases in California remain unsolved and 56% of reported rapes.

Recent polls show California voters are ready to replace the death penalty, and join a nationwide trend.  (Connecticut is on the verge of becoming the fifth state in five years to replace the death penalty, following Illinois, New Jersey, New Mexico and New York.)  Both the Public Policy Institute of California and Field Poll have found that when given the option, more California voters opted for life in prison without the possibility of parole over the death penalty.

As Jeanne Woodford the former Warden at San Quentin State Prison, and current Executive Director at Death Penalty Focus, put it, this is a "game-changer of massive proportions."

SAFE California is a historic campaign that will change California forever – for the better. Once we replace the death penalty in November, we will save millions in public safety dollars and California will never again risk executing an innocent person. We’ll soon have the opportunity to use  hundreds of millions of dollars in budget savings to improve personal safety for families across our state.

Death Penalty Proponents Lose Another Argument

Those of us representing defendants who have killed understand the utter fallacy of the argument that the death penalty deters killing.  It is nonsensical to think that when one is suffering from whatever disturbed state of mind that leads him or her to intentionally cause another's death they carefully weigh beforehand whether to do so based on what ultimate punishment they may receive (i.e., "Yes, I will kill because the worst that could happen is I get life without parole.")

Indeed, while it has long been argued by death penalty proponents that capital punishment is necessary to deter crime, it has never been conclusively proven to have a deterrent effect.  In fact, it has long been true that the states with capital punishment also have the most crimes of violence.

Albert Camus’ essay against the death penalty, Reflections on the Guillotine (1957), includes a refutation of the deterrence argument that remains salient today.  Camus, citing an earlier study which described pickpockets plying their trade at the public hanging of other pickpockets, goes on to explain that  the complexity of human nature is not so easily controlled by law: “When law ventures, in the hope of dominating, into the dark regions of consciousness, it has little chance of being able to simplify the complexity it wants to codify.”

And now we have more proof - - or lack of proof.  As reported in the Los Angeles Times, a panel of independent experts convened by the National Research Council released a report finding that the studies on the alleged deterrent effect of the death penalty contain fundamental flaws that render them meaningless.  For example, the studies fail to consider whether other forms of punishment, such as life without parole, may also act as a deterrent. The studies don’t “consider how the capital and noncapital components of a regime combine in affecting the behavior of potential murderers.”

More fundamentally, the research underlying deterrence studies is based on the assumption that those who kill can or even try to accurately calculate their risk of being executed if they were convicted.  But, as the chairman of the committee acknowledged, "nothing is known about how potential murderers actually perceive their risk of punishment.”

It  has become increasingly clear that capital punishment is not a productive tool for fighting crime and, indeed, undermines personal and public safety by draining needed resources from more effective methods.

Many people who have devoted their lives and careers to law enforcement, public safety and victims' rights, including former San Quentin Warden Jeanne Woodford, former Los Angeles D.A. Gil Garcetti, Supervisor Ron Briggs whose family created California's death penalty law, and Don Heller, who wrote it, have come to realize that the death penalty is counterproductive, that the old arguments in favor of its continued use no longer apply, and that the time has come to replace it.

The SAFE California Act is about to qualify for the November 2012 ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Click here for more information on the SAFE California campaign and on how you can join the effort to replace the death penalty and enhance our personal and public safety.

Evolving Standards Of Decency: Who's Next?

I have previously written about the phrase, "evolving standards of decency," which is used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  While the Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society," there has been a strong trend away from capital punishment on the state level, as the death penalty is increasingly seen as too fallible and too costly to remain on the books.

Connecticut is on the verge of becoming the fifth state in five years to replace the death penalty (following Illinois, New Jersey, New Mexico and New York).  Yesterday, a bill passed Connecticut's State Senate.  It is expected to pass the House, and Governor Daniel P. Malloy has already agreed to sign it.

(The legislation would not affect the sentences of the 11 inmates now on Connecticut’s death row, although it should be noted that the state has executed only one inmate in the last fifty-one years; Michael Ross was executed in 2005, after he gave up his right to appeal.)

Who's next?  As the New York Times reports, "repeal proposals are also pending in several other states, including Kansas and Kentucky, while advocates in California have gathered enough signatures to put an initiative to throw out the death penalty before voters in November."

The SAFE California Act would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Former San Quentin warden Jeanne Woodford points out that:  “Connecticut’s estimated $5 million in annual death penalty costs pale in comparison to California’s $184 million per year. Spending on the death penalty for the entire state of Connecticut comes to about 3% of what we spend in California in one year.”  As Woodford says, Californa's death penalty is a failed system "that is extremely costly, harms public safety and always carries the risk of executing an innocent person. We have over 700 death row prisoners in California. It is the largest and costliest system in the country ‑‑ and the world."

We, as a nation, are clearing evolving when it comes to the death penalty.  There continue to be fewer death sentences imposed and fewer executions carried out each year.  There are also fewer states retaining capital punishment.  

Who's next?  You can help make it be California by joining the campaign.  For more information click here.