Town Square

What price retribution?

Original post made by Tom Cushing on Jul 5, 2011

Some interesting internal conversations occur when there's tension between two competing beliefs inside any one person's head. For the many Californians who support both the death penalty and smaller government, there's such a moment of truth coming.

When capital punishment was restored by the US Supreme Court in 1976, the Court majority cited deterrence and retribution as legitimate social interests that might be served by its use. In our fair state, death penalty laws were invalidated by the CA Supreme Court in 1972 and 1976, and reinstated each time by legislation and popular vote.

Public support aside, there are significant arguments against it. For many, the taking of life is wrong, whether it's done by a murderer or by the State. Others point to later exoneration of 138 citizens previously sentenced to death – the one punishment that cannot be undone. There's also ample evidence that capital punishment is ordered disproportionately against minority defendants: 60% of 714 condemned prisoners in CA are black or Hispanic, including 10 of the 18 men convicted in Contra Costa County. And it's a hotly debated question whether a significant deterrent effect has been demonstrated since the 1970s.

Still, some 70% of Californians favor capital punishment. Recent studies revealing the ruinous cost of its implementation, however, have led to legislative stirring in Sacramento. Supporters may soon be put to another pro-or-con choice.

According to that research and as widely reported in the general press, the death penalty has cost Californians a whopping $308 million for each execution; the care-and-feeding of death row inmates annually taxes us $184 million more than if those inmates were serving life without parole. Further, the cheapest death penalty trial costs the government over one million dollars more than most expensive life-without-parole case. Other directly-related costs abound.

These stunning numbers have energized opponents to develop new legislation to invalidate capital punishment in CA. If passed in this era of belt-tightening, another popular vote will ensue.

So, as we all must ask ourselves: is capital punishment right – and is it a penalty we can still afford? In other words, taxpayers: what's retribution worth?


Posted by American, a resident of Danville
on Jul 6, 2011 at 1:02 pm

Tom: I respectfully disagree with you. I think the reason that 70% of Californians support the death penalty is for the same reason I support it: If one single criminal is deterred from committing a horrific crime worthy of the death penalty, due to the fear of the death penalty, than it is worth it. The history of jurisprudence has always sought to link the penalty to fit the crime, going back to Hamurabi's "an eye for an eye", which I do not always agree with, going back to the old adage that "two wrongs do not make a right". However, deterence is a valid reason to have the death penalty, and it is common for career criminals to know exactly what crimes are "capital offenses" and which are not.

Posted by [removed], a resident of Alamo
on Jul 6, 2011 at 6:39 pm

Dear Editor,

The reality is death as a result of so-called justice has not reduced capital crime in California. I suggest that you review government, media and social justice investigations. It is quite opposite in the criminal environments that capital judgement is a badge of honor.

Take time to look at reality, please.

Posted by Rick Pshaw, a resident of Danville
on Jul 6, 2011 at 9:01 pm

I'd really like to see a breakdown of the "$308 million for each execution." This number is pure fantasy.

Posted by Tom Cushing, a resident of Danville
on Jul 7, 2011 at 9:30 am

@ American: "respectfully"?? We're going for raucous, here. But thanks.

I think the concern is that only some small portion of murderers rationally consider the consequences of getting caught afterwards, and those few know that "NObody" on death row actually gets killed (okay, 13/714 population -- many more condemned prisoners have died of natural causes and suicide than have been executed -- 78, in fact. It is, in effect, already life-without-parole, but we comfort ourselves thinking it's somehow different.

There's even this case cited in the Report: "Self-proclaimed white
supremacist Billy Joe Johnson, after being convicted of killing a
fellow gang member for divulging gang secrets, told his defense
attorney to try to get him sentenced to death, because, as his
attorney explained, 'living conditions at San Quentin prison's
death row will be better than if he serves a life term at Pelican Bay
State Prison.'" These guys just aren't deterred.

It's also easy to get lost in the zeros, but $4 BILLION is one helluva lot of money. Would you pay that if somebody could credibly tell you that otherwise there's be a special-circs killing? Would you pay $8 Billion for two (or even $7 with a volume discount)?

And what other good could've been done with that $4 Billion -- how many roads paved, computers in schools, police on patrol -- is it Really a good trade?

Posted by Tom Cushing, a resident of Danville
on Jul 7, 2011 at 9:35 am

@ Rick and Removed:

Here's a citation to the study: Web Link

Rick: the first line of defense is often to disbelieve -- I hope you'll look into the work these authors have done, and satisfy yourself that their numbers are all too real.

Note, too, that between the tow authors, one favors the death penalty concept, the other is opposed. That fact may lend some credibility to their work. They also include several alternative Propositions, some of which retain CP but change it, and others of which would abolish it.

Posted by American, a resident of Danville
on Jul 7, 2011 at 10:21 am

Lets be honest about this, Tom, your opposition to the death penalty has nothing to do with the "costs" or "expenses" involved, but rather is because you simply oppose it. Period. That's fine, I respect your right to have a view that 70% of Californian's do not agree with, but at least be honest about it, and don't play the expense concern...If you were truly concerned about the expense, we could change the laws to fast track and limit the appeals process, which I am sure you would not support...Do you have similar concerns about the "expense and costs" of our legislature now mandating that schools actually teach in public schools about gays, lesbians, and transgenders, which will require all new textbooks that our broke school system obviously can not afford? Of course not, because you support that legislation. You only play the "expense" card when it helps your position on an issue, correct?

Posted by Rick Pshaw, a resident of Danville
on Jul 7, 2011 at 10:53 am

I actually did read portions of the work referenced (Loyola Law Review). One author was a member of the United States Court of Appeals for the
Ninth Circuit – one of the most leftist and reversed courts in the nation. The other author was involved deeply in Prisoner Civil Rights Litigation. These are not unbiased authors and obviously had their agenda going in.

What was really interesting is that the document notes that "…obtaining data concerning how much the administration of California's death penalty actually costs state and federal taxpayers." has not been easy. Further, the authors are quoted as say they were "…unable to find a single state or federal official willing to go on the record concerning the cost of implementing the death penalty in California."

The point is that no one knows what the differential costs are. I submit that the differential is not anywhere close to the estimates given in the document.

The big logical error they (and you) make is assuming that if there were no death penalty, there would be enormous savings. This is not true. Remember these prisoners are convicted felons. If the death penalty ceased to exist, they would not be let out onto the streets – they would still remain in custody. What's the difference if they are on death row or not? They still would require pretty much the same amount of expenditures.

I would agree that there is some incremental cost in having a person on death row instead of having a person doing life without parole. But it's nowhere near what the (biased) authors profess.

Posted by Tom Cushing, a resident of Danville
on Jul 7, 2011 at 11:12 am

@ American: You're attacking the messenger, but it's a fair Q and I'll play ball.

As an olde Econ major, and before life convinced me that there's a place for economics -- but it's not Everyplace, I did indeed support CP per an economic argument that went something like this: "here's a person who has broken Society's most fundamental rule -- don't kill somebody else. So why should Society have to pay to care-for and feed that murderer for the rest of his/her born days?" Seemed like a lousy bargain for Society.

And I Do oppose the death penalty now, but not on the staggering economic waste of maintaining it. Rather, I've come to understand how fallible our system of justice can be. Those 138 later-exonerated souls I referred-to above are examples of those mistakes -- the ones who were fixed in time. There are other cases where the defendant was clearly railroaded, and killed anyway: Web Link

Now, wasn't that guy's actual life worth just as much as the hypothetical life you referred-to, as possibly saved via deterrence, in your initial post?

Posted by Tom Cushing, a resident of Danville
on Jul 7, 2011 at 11:41 am

@ Rick: Circuit shmurcuit -- as indicated, Judge Alarcon is a proponent of CP. He was a prosecutor in LA for ten years earlier in his career. He has sought CP as a DA, presided over CP cases as a trial judge, and reviewed CP appeals as an appellate judge. The scholarship and their conclusions just can't be dismissed that easily.

In fact, the authors Do have an agenda -- they state it right up front:

"It is the authors' view that unless California voters want to tolerate the continued waste of billions of tax dollars on the state's now-defunct death penalty system, they must either demand meaningful reforms to ensure that the system is administered in a fair and effective manner or, if they do not want to be taxed to fund the needed reforms, they must recognize that the only alternative is to abolish the death penalty and replace it with a sentence of life imprisonment without the possibility of parole."

Four of the five draft Props they include in the article would Retain the death penalty.

Further, if you Do read the study, the fallacy you claim is not there. Their numbers compare the cost of maintaining those prisoners on death row, vs. the cost of maintaining them as Lifers Without Parole. The difference -- $184 Meellion tax dollars, Per Year, every year.

Posted by Rick Pshaw, a resident of Danville
on Jul 7, 2011 at 12:14 pm

So where does the "...whopping $308 million for each execution" come into play?

Dear readers - the cited work is mostly fantasy. The authors admit that they could get no hard financials on implementing the death penalty, but they go ahead and make blanket statements such as an $184 million difference between death row and life.

Come on. It's the same environment, the same prisoners, the same everything but it costs $184 million more for one prisoner than another?

Posted by Tom Cushing, a resident of Danville
on Jul 8, 2011 at 8:23 am

Rick: Really?

If you read the study, did it escape you that the $300 million number is a simple division of the $4 Billion of taxpayer money spent on the death penalty, by the 13 (count-em) executions that have been carried-out under that law?

Frankly, that's not the most interesting stat. For instance, each death penalty trial costs At Least a Million dollars more than an identical one seeking life-without-parole. Why? There are two stages, guilt and punishment, and an automatic appeal to the CA Supreme Court. These aren't voluntary or a creature of the legislature -- they are mandated by the US Supremes.

The point is that there is wasted tax money at every step of the way -- indeed, it would be difficult to find (even) a CA government program that spends more money with fewer results. Although I'm sure you'll try.

That may be why you're trying so hard to discredit the study that you obviously haven't read. Again, the citation to it -- all 178 well-documented pages -- is above. I don't think you can get around the waste (even if you continue to just say 'pshaw') -- so the question remains, given that abysmal record, Is It Worth It?

Posted by American, a resident of Danville
on Jul 8, 2011 at 11:53 am

Tom: I am curious, why do you think Texas and Florida actually have so many more executions than California? Also, regarding deterence, why do you think monster Philip Garrido pled guilty and accepted a 400 year prison term, rather than go to trial and face the death penalty? The death penalty deterence has another benefit to society, in preventing the victims of these horrible crimes from having to go thru a trial, as the threat of the death penalty leads the criminals to pleading guilty to life in prison without parol. If California did not have the death penalty, Philip Garrido would have had no incentive to plead guilty to life in prison, and would have forced victim Jaycee Dugard to be violated again during a long trial. Bottom line, the death penalty serves a very important purpose in society, and that is why 70% of Californians support it.

Posted by jrm, a resident of Vista Grande Elementary School
on Jul 9, 2011 at 12:34 am

Only "American" could find a way to use this thread to post a homophobic rant. Amazing. He and Mike Arata are constantly on the lookout for the threat to our well being, one must wonder where this hatred comes from.

Posted by Tom Cushing, a resident of Danville
on Jul 9, 2011 at 5:05 pm

@ American: you know, if you keep ignoring my questions and just moving on to other points, I may have to stop playing this game. You're making me do homework.

First, as to your inquiry about Texas and Florida, here are a few stats: TX has executed 471 people since reinstatement, 12 condemned convicts have been exonerated, and their murder rate/100K population is 5.4 (FBI stat). FL has killed 69, with 23(!) exonerations and a murder rate of 5.3.

CA's stats are 13 killed, 3 innocents freed and a murder rate of 5.3. NY, without a death penalty, has had 0 executions, and a murder rate of 4.0.

Indeed, the murder rate in non-CP states has averaged less than CP states EVery year since 1990, and every year since 2000 the difference has been at least 35%. The South carried out 82% of total executions in 2009, with an average murder rate of 6.0. The Northeast had fewer than 0.5% of the executions and a murder rate of 3.8.

Now, as to Garrido, do you have any Actual information on why he pled guilty? If so, please cite it. Otherwise it's your assumption, with the predictable consequences thereof that all our Mamas taught us.

Now, there Are studies that claim deterrence exists elsewhere -- you can find those for yourself. But the Bigger point here is that it doesn't exist in California because NObody ever gets killed anyway! So the good policy outcome you claim for it is a complete illusion.

You'll note that the two folks leading the charge on repeal are the former Warden at San Quentin (location of CA's death row) AND the actual author of the 1978 Proposition that broadened the crimes for which CP could be sought. Hardly your classic profiles of card-carrying ACLUers or lilly-livered do-gooders.

It just -- they know it; you should, too.

Posted by Diane, a resident of Danville
on Jul 10, 2011 at 11:36 am

Tom, thanks for being a voice of reason with the willingness to openly self examine your beliefs. That you respond to questions posted by those who do not answer yours in turn is quite a refreshing character trait.

Back to topic - I remember in one of the classes I had in graduate school we had a similar (very)spirited discussion. I remember the professor citing studies that clarified the lack of meaningful impact the threat of death penalty had on the person committing an illegal act. Most of us value life and would be deterred by anything that shortened our time on this earth, but it would appear that those we most want to affect change in their actions are unfazed by the threat of death as a consequence for their actions.

Posted by Allaina, a resident of Blackhawk
on Jul 11, 2011 at 4:32 pm

If we would just start racking, stacking and executing those on death row, we would start making an impact on criminals and save a lot of money. If the studies are accurate, it is only because California has yet to follow through with the sentences handed down. The appeals process needs to be sped up so the guilty get their "due process" in a timely manner and we Californias don't pay unnessary monies to keep them alive.

Obviously Scott Peterson and the like got the sentence they deserved and now California needs to do its job! The fact that an inmate that was given the death sentence in 1985 and is still alive shows criminals that we won't follow through so be as heinous as you like in your crimes. I think it is horrible that Charles Manson got tried during the time when the death penalty wasn't available.

Posted by Tom Cushing, a resident of Danville
on Jul 12, 2011 at 8:51 am

@ Allaina:

Two of the major impediments to swifter execution are direct appeal to the CA Supreme Court, and (believe it or not) a shortage of counsel who are both qualified and willing to take these appeals at the reimbursement rates paid by the State (almost all appeals are indigent appeals, because most capital convictions are of indigents – see the experience of Simpson, Orenthal James and other well-healed defendants). Both problems cause substantial delays (but note that even Judge Roy Bean-style TX has had condemned prisoners on death row for as long as 31 years).

The appeals can be directed to the Court of Appeals level, but only by Constitutional Amendment of the current law passed by initiative. Cost of compensating counsel sufficiently well that more, and qualified lawyers will seek appointments is estimated at an additional $85 million/year (atop the $184 million currently spent annual by taxpayers). Enacting those two reforms would eventually address the current backlog of 714 death row inmates, many years down the road from here. At that point, the "maintenance cost" of all those prisoners begins to decline.

Is that outcome, at an additional $85 million tax dollars/year, for a total of $270 million/year vs. life without parole, worth it?

Other reform options include narrowing the scope of crimes and circumstances covered below the current number of 39 (with some eventual savings as the backlog dies off) or, of course, abolition – as states like New Jersey and Illinois have chosen -- immediately saving that $184 million, every year.

Posted by Allaina, a resident of Blackhawk
on Jul 12, 2011 at 9:26 am

@ Tom

As I worked in the legal system for a number of years, I accurately know what the complete appeals process is and what slows it down, but there are remedies for that which have not seriously been considered. Also, even if those got put into place, the liberals would still be screaming about cruel and unusual punishment. For the victims and their families of these heinous crimes (which I hope you are never one), they deserve justice and the closure that goes along with that.

Posted by Tom Cushing, a resident of Danville
on Jul 12, 2011 at 9:45 am

Hi Allaina:

Recognizing that all our instincts are constrained by the Bill of Rights, what are some of these remedies of which you write?

I also think that it's a pretty bleak, if any, "closure" that's found in that fashion. I believe there are some losses, like that of a child, where there's never closure -- we're just not built to bury our young. You just adjust.

What is clear to me is that even the closure you claim is certainly not found in the current broken system. Something Has to be done.

Posted by Allaina, a resident of Blackhawk
on Jul 12, 2011 at 11:47 pm

Tom - Obviously going into tons of details about fixes on a blog is not going to change anything, it is the letters that are written to legislators that will, which have been written.

With regard to closure, it is knowing that the criminal can NEVER do this to anyone else ever again and they are no longer breathing the same air you are. Visiting a grave knowing that criminal is being fed and cared for at your expense is beyond grotesque.

Like I said, I hope you never experience anything so awful and maybe someday justice will be served.

Over and out!

Posted by Tom Cushing, a resident of Danville
on Jul 13, 2011 at 7:34 am

Hi Allaina: I guess I'm more hopeful about the power of discussion and the community press. Cut-n-paste is readily available -- I hope you'll choose to provide at least a bit of detail about the fixes you favor.