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Death penalty measure raises questions over cost, ethics

By Ryan Eshoff and Rachel Estabrook | 31 Oct 2012

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Retired Santa Clara County Superior Court Judge LaDoris Cordell, Stanford Professor Lawrence Marshall and San Mateo County District Attorney Stephen Wagstaffe debated Proposition 34, which would eliminate the death penalty in California. (photo Rachel Estabrook/Peninsula Press)

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Two supporters and an opponent of a ballot measure to repeal the death penalty in California agreed today that the capital punishment system is broken, but they clashed over the best way to fix it.

At a Stanford University panel hosted by the Peninsula Press, retired Santa Clara County Superior Court Judge LaDoris Cordell and Stanford Professor Lawrence Marshall laid out arguments for Proposition 34, facing off against San Mateo County District Attorney Stephen Wagstaffe ahead of Tuesday’s vote.

The three sparred over the moral issues surrounding the death penalty, the costs and potential savings of repeal, and past efforts to reform the system, which California voters have expanded over the past 25 years resulting in more inmates on death row and longer incarceration and appeals times.

“The death penalty system in California is broken beyond repair,” Cordell said. “Reforming [it] is a fantasy.”

Wagstaffe disagreed. “Call me Pollyanna,” he said, “but I do not believe [the death penalty] system is hopelessly broken.”

Instead of Proposition 34, Wagstaffe favors legislative action to amend how the death penalty is applied in the state by restricting the types of crimes to which it applies and bolstering resources for legal defense.

If Proposition 34 passes, life imprisonment without the possibility of parole will replace the death penalty as the maximum sentence possible for those convicted of murder. This change would be applied retroactively, meaning sentences for the 725 prisoners currently on death row would convert to life sentences without parole.

Cordell said this action would save the state up to $130 million each year, citing a study by the Legislative Analysts’ Office. Since 1978, 13 executions have been carried out in the state at a total cost of $4 billion to California taxpayers, according to a study published last year by Judge Arthur Alarcon and Loyola Law School professor Paula Mitchell.

The death penalty system “is a multi-billion-dollar fraud on California taxpayers,” said Cordell, who served as a judge for 19 years. She said the money spent by the state could better be used for police street patrols and forensic labs.

Wagstaffe raised questions about the accuracy of the estimated cost savings. Opponents of the measure have argued that LAO’s cost savings estimates fail to account for more prisoners’ lifetime health care costs.

But Marshall argued that economic benefits are secondary to the possibility of executing innocents. In 1998, he founded the Center on Wrongful Convictions at Northwestern University, which has been instrumental in the exoneration of 35 Illinois defendants. “There isn’t a benefit in return for the cost in terms of executing innocent people,” he said.

California is one of 33 states that allow the death penalty.

Wagstaffe, however, said there is a category of criminals that deserve the death penalty. He pointed to Oklahoma City bomber Timothy McVeigh, Richard Allen Davis who murdered young Petaluma resident Polly Klass, and Richard Ramirez, a convicted serial killer known as “the night stalker.” Wagstaffe said in these cases, “This most evil of punishments fits.”

Through mid-October, supporters of the proposition have raised nearly $7 million to the $360,000 raised by opponents. Supporters include Jeanne Woodford, a former warden of San Quentin State Prison; former California Attorney General John van de Kamp; and Los Angeles Mayor Antonio Villaraigosa. But most of the funding has come from a few large donations, some from out of state, according to analysis by the Peninsula Press, a news project of Stanford University’s Graduate Program in Journalism.

In a telephone interview, attorney Barry Scheck, co-founder of the Innocence Project at Yeshiva University’s Benjamin N. Cardozo School of Law, said that outside interest is not surprising. “There’s been enormous national interest in the movement towards repeal of the death penalty,” he said.

Scheck said this interest is especially high with regard to California. “By any measure, [California’s] is the most screwed up death penalty system of any state in the country in terms of efficiency,” he said. That’s because the state allows for an extensive appeals process resulting in an average 25-year span from sentencing to execution.

The state first legalized the death penalty in 1851. California’s current death penalty statute was enacted in 1978.

California’s 725 inmates on death row is the largest roster in the country. Seven have exhausted all legal appeals and are legally eligible for execution. However, a dispute over how California administers lethal injections must be resolved before these executions can take place.

In addition to eliminating the death penalty, Prop 34 would require persons found guilty of murder to work while in prison. Their wages would go to victims’ families as restitution. The measure also would create a $100 million fund, to be paid over four years out of the state’s general fund, to law enforcement agencies for investigations of homicide and rape cases.

Cordell said this money would come from savings gained by not having to litigate death penalty cases. It will be allocated by the state attorney general to local law enforcement authorities based on need.

Wagstaffe described the fund as a “carrot” used by supporters to entice voters, one that would have limited long-term impact. He also said should the death penalty be abolished, he worries about a “slippery slope” where activists would then target “life without parole” for elimination.

Leading up to Tuesday’s election, polls show a slight lead for the opposition. A University of Southern California / Los Angeles Times poll released Friday showed 42 percent of respondents favor Prop 34 with 45 percent opposed. In September, polls showed 38 percent in favor and 51 percent opposed.

But all of today’s panelists said the race appeared too close to call.

“If I were in Vegas, I wouldn’t put a bet down on this in my life,” Wagstaffe said.

Marshall said he wasn’t sure which way voters will go but, in his experience, the more people learn about the death penalty, the less they support it. “You can’t support the death penalty without owning that you’re doing it at the cost of innocent lives being taken,” he said. “That’s truth in advertising.” Should the measure fail, he said, “The answer is more education is necessary.”

Video by Danielle Radin/ Peninsula Press

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