The lethal injection chamber at San Quentin State Prison is shown. (Los Angeles Times )
With a drug cocktail that puts death row inmates to sleep, California's capital punishment can hardly be said to be cruel — but it is so unusual that death row inmates in the Golden State routinely die of old age or by suicide. When, or more likely if, justice comes, it doesn't come cheap. By some estimates, it costs $100,000 a year per prisoner to keep California's 718 inmates alive on death row, thanks in part to the endless, often frivolous appeals brought by inmates and death penalty opponents. If capital punishment is prohibitively expensive, it is because those professionally seeking to abolish it have made it so.
Even death penalty supporters, such as Chief Justice Tani Cantil-Sakauye of the California Supreme Court, have given up. "I don't think it is working," the newly appointed chief justice told The Times last week. California's death penalty requires "structural change, and we don't have the money." Still, Californians need a "merit-based discussion on its effectiveness and costs." But the chief justice ignored why that load continues to mount: death penalty opponents.
Death penalty foes have seized on the cost issue for their latest attempt at killing it off. Led by Natasha Minsker of the ACLU of Northern California, they are gathering signatures to put the so-called SAFE California initiative on the November 2012 ballot. Minsker's co-written report, "California's Death Penalty Is Dead," concedes that it is the appeals process that clogs the courts, noting that "death penalty trials cost up to 20 times more than trials for life imprisonment without the possibility of parole.... Taxpayers are legally required to pay for numerous appeals in death penalty cases, unlike cases involving life without possibility of parole, where the prisoner gets only one taxpayer-funded appeal."
Only 13 death row inmates have been executed since Californians voted, by a 2-to-1 margin to reinstate capital punishment in 1978, over the objections of then-Gov. Jerry Brown, who had previously vetoed it. Californians, like most Americans, like the death penalty and favor it by roughly the same margin they did in 1978. Support softens when life without parole is considered as an alternative, perhaps because of expense issues. Nonetheless, according to a Field Poll in September, 68% of Californians support capital punishment.
One mark of its popularity is how often it is meted out. For all the supposed blood lust of Texans, where more inmates are executed (and more cheaply), California's jurors are twice as likely to sentence criminals to death. According to a Cornell University study, this is because Texas' death penalty sentencing criteria are far more objective than California's; juries in states with "subjective" death penalties — where they take into account heinousness, for example — are twice as likely to impose the death penalty than are states with stricter guidelines.
That subjectivity gives inmates, activists and lawyers just enough wiggle room. Take Robert Alton Harris, the first Californian executed in 25 years. Harris admitted to murdering two boys because he wanted their car for a crime spree. He even finished off the Jack in the Box burgers they were eating. But Harris' lawyers spent 13 years dragging out his appeals. Or consider Randy Kraft, convicted in Orange County's costliest trial of murdering and mutilating 16 young men. Among his contentions on appeal, he has argued that execution would force him to "actively participate in his own killing," violating his 1st Amendment religious protections. Kraft, suspected in 67 killings, has become a champion bridge player on death row.
In 2006, federal District Court Judge Jeremy Fogel stayed Michael Morales' execution. Morales admitted to killing 17-year-old Terri Winchell in 1981. She was stabbed, strangled, knifed and hammered. Fogel stayed Morales' execution on the grounds that the three-drug method of execution might — there was a .001% chance — cause Morales pain. He worried that California's execution team was too poorly trained, the execution chamber too dimly lit. The state hired two anesthesiologists to administer the drugs and to guarantee that Morales would feel no pain, but the doctors balked, saying their involvement would violate their Hippocratic oath.
Thus capital punishment in California remains in limbo until September 2012, the soonest the Brown administration and death row inmates' attorneys will be ready to review the state's new procedures. Candidate Brown promised to "vigorously enforce the law," but Gov. Brown will probably wait to see the November ballot initiative's results first.
Meanwhile some lawsuits countering the death penalty have gone from frivolous to farcical. One, filed against the Food and Drug Administration, argues that California's drug supply of sodium thiopental for executions was improperly obtained abroad. It's the FDA's job, the lawyers say, to make sure that even death penalty drugs are safe and reliable.