Spitzer Law Blog

Spitzer Law Blog

News & Views on Victims' RIghts

Crime Victims' United of California's Take on the SAFE



By Todd Spitzer: Crime Victim United, as always, has done an excellent analysis of where we stand against another Initiative attack on the Death Penalty in California.  As the above link shows, delay after delay in the use of the death penalty is wearing the public thin.  Given Governor Brown's prison "Realignment" program, there is this sense that public safety will remain the same (safe) because of decades of measures, like Three Strikes, that got it there.  Hold on.  These liberal policies will effect our safety and there is no doubt that soft on crime measures will have a impact.

Crime Victims' United October 2011 Newsletter:



In 1972 the California Supreme Court ruled that death penalty laws were unconstitutional and at the time oversaw the commuting of 107 death sentences. Following that ruling the California Constitution was quickly modified to reinstate capital punishment under a voter-approved initiative, Proposition 17.


In a 1976 decision, the California Supreme Court again held the states' death penalty statute unconstitutional, but the statute was again modified and reinstated. In 2006 a U.S. District Court Judge blocked the execution of convicted murderers because of complaints about the manner in which lethal injections were being administered. Executions have been halted until these methods can be satisfactorily amended. California currently has nearly 700 people on death row - by far the highest in the nation. However, no inmate in California has been put to death in the last four years because of an ongoing legal battle over execution procedures thereby instituting a de facto moratorium on executions.


The 2012 SAFE Act


Failing to convince Californians that the death penalty is wrong, death-penalty opponents have a new strategy that is gaining ground - attacking capital punishment based on fiscal concerns.   This approach is forming the basis for a November 2012 ballot initiative to abolish the death penalty in California and revert death row inmates' sentences to life without parole (LWOP). The initiative - the "Savings, Accountability, and Full Enforcement for California Act" ("SAFE Act") - is being supported by the American Civil Liberties Union (ACLU), current and retired law enforcement and a number of victims of violent crime.


Crime Victims United of California (CVUC) strongly supports the death penalty as an option for the worst of criminal offenders. And while we cannot deny the significant costs associated with it, its fiscal tag should not stand in the way of justice. The abolishment of the death penalty, particularly based on fiscal arguments, is an insult to victims - especially those victims whose offenders currently sit on death row. Such an effort and its fiscal arguments essentially say to those victims that the lost victims' lives are not valued over the high costs of justice for the state. This notion is reprehensible.


Dysfunction Feeds the Effort


Under the current system, the average delay in California between the time someone is given a death penalty sentence and when an execution actually takes place is now averaging more than 25 years. According to the California Commission on the Fair Administration of Justice ("Commission"), expenses related to the death penalty costs the state $137 million per year. Sixteen states across the U.S. have abolished the death penalty, with New York and Illinois being the most recent. California law requires a vote by referendum in order to repeal the death penalty in California.


The effort to abolish the death penalty is fueled by the Commission's report that called California's death penalty a "dysfunctional" system and "close to collapse." The report suggests that the death penalty is too flawed to be effective, citing backlogs in assigning lawyers and in reviewing death row appeals - thereby creating the longest time in the nation between conviction and execution. Chief Justice Ronald George noted that "if nothing is done, the backlogs in post-conviction proceedings will continue to grow until the system falls of its own weight."


Crime Victims United of California (CVUC) wholeheartedly agreed with the Commission's conclusion that the death penalty process is dysfunctional and doesn't deny the SAFE Act proponent's claims that the death penalty is outrageously expensive. The significant delays in the system have essentially resulted in a de-facto moratorium on the death penalty - one that is unjust and unfair to victims and their families who have endured decades upon decades waiting for justice to be fulfilled. These delays also help add to the significant costs that proponents of abolishment believe is sufficient to justify its elimination as a sentence for the most heinous of offenders.


While the Commission did not advocate abolishing the death penalty, it noted that California could save over $100 million a year if the state replaced the punishment with LWOP. The report goes on to say that death row prisoners cost more to confine, are granted more resources for appeals, have more expensive trials and usually die in prison anyway.


While it may be true that death row prisoners incur higher costs, CVUC disagrees that the answer to the problem is sentencing such individuals to LWOP instead as the proposed initiative would do. Perhaps the state could save $100 million in doing so, but let's face it - $100 million, while it is a lot of money to most Californians it is a drop in the bucket, pocket change if you will, to the overall budget of the state of California. Furthermore, opponents to the death penalty have begun to cite the savings estimate provided by the Commission and others as justification for abolishment and a means to address the state's budget deficit; but, again, CVUC notes that the state's deficit is $9.6 billion - savings of $100 million is not going to make a huge difference - it is pocket change in the overall budgetary fight.


Reality Check


CVUC strongly believes that the answer to the significant delays and high costs associated with the death penalty in the state is to address the cost drivers - the problems of backlogs and associated delays in the appeals process. The Commission's report provides recommendations to lessen the appeals process to 12 years; while this is still a significant delay, it is far better than the 20-25 years that death row victims must endure for justice to be served. Bottom line - if the state invested in reducing the backlog and appeals process delays, CVUC is certain that the state could save significantly more than $100 million.


To be clear, CVUC is not suggesting the appeals process should be shortened at the expense of ensuring proper convictions. Arguments have been made that innocent persons may be executed under the current system; however, there has not been a single case of a death row inmate who has been fully and factually exonerated in California. The opportunity for DNA testing and consideration is an option in many cases to help support claims of innocence; however, we are not aware of any case in California where a death row offender has been proven factually innocent of the crime they went to death row for. Instead, they are often moved off death row because of technicalities in their legal defense - no factual innocence in such an outcome. The current system allows for sufficient time for such individuals to be exonerated, should they indeed be innocent of the crimes for which they have been accused - the reality is that they are not innocent of their crimes. Twelve member juries unanimously found these criminals guilty beyond a reasonable doubt. Even though the jurors faced the agonizing choice of deciding whether a convicted murder should die or spend the rest of his or her life in prison, decided that the aggravating factors outweighed the mitigating factors, and voted in favor of execution. The facts and logic compel the conclusion - that these offenders committed their crimes and deserve the ultimate punishment.  


Furthermore, prosecutors and judges are the most versed in the details of the crime and case - they should have broad discretion and sentencing tools available to them to ensure that the sentence fits the crime. Since the death penalty in California was reinstituted in 1978, the imposition of death sentences has dramatically declined to about 20 a year. This hardly illustrates the overuse of the sentence in California, particularly when less than 2% of all murderers in California were sentenced to death in 2001 (according to a 2003 study conducted by the California District Attorneys Association, Attorney General's Office, and the Criminal Justice Legal Foundation). Additionally, under state law, even if a jury unanimously votes to sentence a defendant to death, the trial judge has authority to reverse the sentence if he/she feels the jury's decision was improper. Every case is automatically appealed to the California Supreme Court and capital defendants are allowed to directly and collaterally (through habeas corpus) challenge their conviction at every level of state and federal courts.


Again, CVUC agrees that California's death penalty process is "dysfunctional." However, we only agree to the extent that the dysfunction is a direct result of the unacceptable delays that result in victims waiting decades for justice and driving up the costs associated with the sentence. It is critical that the state address the significant delays and associated costs. No victim should have to wait upwards of 20-25 years for justice nor should they have their offender's sentence changed on them after they believe they had received a just sentence for the an offender who was deemed the worst of the worst.


The Irony of the SAFE Act & Constitutional Truth


Specific to the SAFE Act, death penalty opponents' fiscal arguments to support such an initiative are ironic. The high costs and lengthy delays cited are due to litigation they have brought forth that seek to institute those delays and drive up the overall cost of executions to support their argument. Although they often argue the constitutionality of the sentence based on the 8th and 5th Amendments of the Constitution, no serious constitutional argument can be made against the death penalty. The Constitution does not empower the Supreme Court to proscribe capital punishment or to regulate it out of existence. And while the 8th Amendment bars "cruel and unusual punishments" and the 5th guarantees "due process of law" before a person can be "deprived of life, liberty or property," there is no serious constitutional argument against the death penalty. The 5th Amendment itself recognizes the existence of "capital" crimes and executions were common before and after the Constitution's framing. Furthermore, in all, the average case is likely to be reviewed by various courts over 10 times, and that isn't even counting the inevitable last-minute habeas filings that keep judges up late at night or requests clemency from the Governor or President - and they argue due process issues? Really?


Those who ignore these points have made it increasingly expensive and less effective - feeding their latest ploy to conveniently argue the death penalty is too expensive for California. Their endless campaigns to ban it cost taxpayers millions to defend. Ironic that the very claims they use to support their efforts are a direct result of the actions they've engaged in to thwart justice.


While CVUC will be watching this proposed initiative's progress closely, we are confident Californians will continue to uphold the death penalty for the worst of offenders. In a survey completed earlier this month The Field Poll updated its tracking of California public opinion on the death penalty issue. The central finding from the most recent survey in September 2011 is that there continues to be strong support for keeping the death penalty (68%). That said, we must be vigilant and mindful of the fact that the survey also found a growing tendency of voters to favor LWOP over capital punishment for those convicted of first degree murder (48%).


SAFE Act proponents must collect 504,000 valid voter signatures by March 18th to qualify the initiative for the ballot. Stay tuned...


For more information on the Field Poll survey, please see http://www.field.com/fieldpollonline/subscribers/Rls2393.pdf


For more information on the SAFE Act, please see http://ag.ca.gov/cms_attachments/initiatives/pdfs/i978_11-0035_(repeal_the_death_penalty).pdf 

Forgot your password?