YOU ARE HERE: LAT HomeCollections

Changes to death row are urged

A federal judge calls for a radical overhaul, saying California's backlog shows the system is broken.

August 30, 2007|Henry Weinstein | Times Staff Writer

The death penalty system in California is so backed up that the state would have to execute five prisoners a month for the next 10 years just to clear the prisoners already on death row.

The average wait for execution in the state is 17.2 years, twice the national figure. And the backlog is likely to grow, considering the trend: Thirty people have been on death row for more than 25 years, 119 for more than 20 years and 408 for more than a decade.

These statistics were cited by an influential judge in a recent article, one in a small but growing number of critiques of California's death penalty machinery, which has proved to be so clogged that one jurist has called capital punishment in the state an illusion.

Arthur L. Alarcon, a veteran judge on the U.S. 9th Circuit Court of Appeals in Los Angeles, supports capital punishment and has voted in favor of death sentences more often than he has voted against them. His article in the Southern California Law Review is drawing considerable attention, not least because, unlike many critics, he does not blame delays on defense lawyers or liberal judges.

Rather, he has called for a radical overhaul of what he described as systemic problems, including a critical shortage of defense lawyers to represent death row inmates on appeal and an inefficient use of judicial resources.

Alarcon suggested a major infusion of cash to attract lawyers to the difficult cases. He also proposed shifting automatic judicial review of death penalty cases to the state's appeals courts.

Taking sole jurisdiction from the California Supreme Court, which has had exclusive oversight since California became a state in 1850, would require a constitutional amendment, a tall order. Alarcon, however, said the alternative could be dire.

"The delays in reviewing capital cases will continue to grow in California to the point where the United States Supreme Court may someday hold that such imprisonment is, in and of itself, cruel and unusual punishment," he argued.

Alarcon, 81, has a long history with the death penalty. A former prosecutor who tried death penalty cases, he served as the clemency secretary to Gov. Pat Brown when Brown was considering requests to commute death sentences. More recently, he cast a key vote paving the way for the 1992 execution of Robert Alton Harris, the first inmate put to death by the state in 25 years.

The veteran jurist's article is being studied in legal circles at the same time the U.S. Justice Department is putting the final touches on regulations to give the attorney general increased sway over death penalty cases, including the power to shorten death row inmates' time to appeal convictions to federal courts.

A legal challenge to the constitutionality of execution by lethal injection has put California executions on hold for the last 18 months.

Alarcon does not offer an opinion on either the Justice Department proposal or the lethal injection moratorium. Rather, his statistics-heavy article is a dark assessment of how the death penalty, under normal circumstances, works -- or doesn't.

California's death row, with 667 inmates, is the nation's largest.

While more than 50 condemned prisoners have died of old age, suicide or prison violence in the last three decades, only 13 have been executed since capital punishment was reinstated in 1978.

In an interview, Alarcon said he believes neglect by politicians and particularly the failure of the Legislature and the governor to put more money into the process are at the root of the dysfunction.

"There may be no interest on the political side in doing something," Alarcon said. "They may be comfortable with a de facto abolition of capital punishment."

"We have found a way of honoring our ambivalence about the death penalty," said UC Berkeley law professor Franklin Zimring, who has written about capital punishment. "We hand out a lot of death sentences and then, in many ways, are relieved when the system slows down."

Alarcon listed 20 procedural hurdles to execution, including years-long delays in preparing trial transcripts and in appointing lawyers for appeals and drawn-out deliberations by state and federal courts, including the U.S. Supreme Court.

The California Supreme Court's seven justices spend about 20% of their time and resources on death penalty cases, Alarcon said.

He argued that it would be wiser to spread review among the 105 justices seated in the state's six appellate districts, subject to review by the state high court.

The dearth of lawyers to handle death penalty appeals, which are automatic under state law, stems from the state's serious under-funding of such work, Alarcon said.

The hourly rate for court-appointed attorneys in capital cases is $140, less half the average awarded by federal courts in California to lawyers appointed in some kinds of civil cases, Alarcon said.

Alarcon said that in a recent 9th Circuit case, a lawyer representing an insolvent company was paid $540 an hour.

Los Angeles Times Articles