Sunday, 2 September 2007

Judge calls for overhaul of California death penalty system

Law article cites growing backlog of executions

By Henry Weinstein, Los Angeles Times September 2, 2007

LOS ANGELES - 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 inmates 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 proven so clogged that one jurist has called capital punishment in the state an "illusion."

Arthur L. Alarcon, a veteran judge on the US Court of Appeals for the Ninth Circuit in Los Angeles, supports capital punishment and has voted in favor of death sentences more often than he has voted against them.

Alarcon's 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 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, 81, has a long history with the death penalty. A former prosecutor who tried death penalty cases, he served as the clemency secretary to Governor Edmund G. "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 Justice Department is putting the final touches on regulations to give the US attorney general's office 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's 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 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 that neglect by politicians and particularly the failure of the Legislature and Governor Arnold Schwarzenegger 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 law professor Franklin Zimring of the University of California, Berkeley, 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 US Supreme 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.

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