No Way To Die In California

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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33 Responses

  1. Michelle says:

    Great piece Burt! It totally reinforces my belief that, whatever one might think about the death penalty (and I mostly oppose it), it would be far cheaper to sentence these offenders to life in prison without the possibility of parole and have done with it.Report

  2. Saul Degraw says:

    Great post Burt.

    My big worry is that this is going to backfire for opponents of the death penalty and we will find ourselves in a system with much fewer due process rights and appeals for capital cases just like Congress tried to curtail all the appeals in the 1990s. There is a certain type of “comment” I hear often enough that criminals who are convicted of death should just be taken out an shot with two bullets to the head. I have a hard time determining whether these comments are said in some kind of cruel jest or are sincere. Probably both.

    Everyone agrees that the current situation is Kafkaesque. The problem is that some people would fix it by destroying or curtailing due process and others would fix it by chucking the death penalty.Report

  3. LeeEsq says:

    The Death Penalty might not be per se cruel and unusual punishment but I clearly think that lethal injection is cruel and unusual punishment. The problem with lethal injection is that you need medical personal in order to do it right and medical personal are not going to get involved in performing executions because its seen as a violation of the Hippocratic Oath. Many pharmaceutical companies also do not want to sell drugs for the purpose of executing people. This basically means that amateurs with little training in pharmacology or the administration of medicine are making lots of bad guesses on how to perform it.Report

    • Michael Cain in reply to LeeEsq says:

      Asphyxiation by inert gas is so easy and painless that people die every year without noticing that it’s happening. At a couple of jobs I’ve had — one where there were large amounts of stored nitrogen, one back in the days when Halon was still used for fire suppression — that was the point hammered on again and again in training: “Follow the safety procedures, because otherwise you’ll be dead before you know anything is wrong.” Why do we still use procedures that require medical technicians?Report

      • Jim Heffman in reply to Michael Cain says:

        Because, goes the reasoning, if it were easy we’d do it more often.Report

      • Killing has always been easy; it’s maintaining the fiction that the method used is humane that’s been the problem. Wouldn’t easy and painless be an argument in favor of adopting asphyxiation in states that already like the death penalty?Report

      • Stillwater in reply to Michael Cain says:

        Because, goes the reasoning, if it were easy we’d do it more often.

        Mmmmm … no. Seems to me a central, maybe even fundamental, part of the entire point of capital punishment is to make the person suffer, physically and/or psychologically. One thing it’s not about is merely ending a life that’s beyond redemption.Report

      • Jim Heffman in reply to Michael Cain says:

        “Seems to me a central, maybe even fundamental, part of the entire point of capital punishment is to make the person suffer”

        Intentionally causing a person to suffer is cruel, and we kind of have a Constitutional amendment about that.

        If suffering were the intent of the process then we’d be using the guillotine.Report

      • Stillwater in reply to Michael Cain says:

        Intentionally causing a person to suffer is cruel, and we kind of have a Constitutional amendment about that.

        Formally, sure. Other than that, I can only think that you’re playing a game here, intentionally confusing the formal with the substantive. Americans love em some punishment. Is that at all controversial?

        If suffering were the intent of the process then we’d be using the guillotine.

        Where do you come up with this stuff?Report

    • Burt Likko in reply to LeeEsq says:

      FTR, not all medical professionals, and indeed not even all M.D.’s, subscribe to the Hippocratic Oath. I’m there there are many medical professionals who think capital punishment is both good social policy and morally justifiable.

      California hasn’t been able to find any who are willing to do the work of the executioner, but perhaps this is more because it isn’t offering to pay them enough money to make it worth their time and trouble than it is because of an inability to locate one who otherwise would be willing to do the job.Report

      • Does anonymity apply? “Pay me enough” might become quite large if administering the sentence could possibly cost me part of my practice should word leak that I’m an executioner.Report

        • I can’t imagine how the anonymous executioner’s identity could be successfully withheld from the CDC’s response to a Public Records Act request by the media, absent a special law passed by the legislature to exempt such a disclosure from that law, which if enacted would in turn surely draw a Constitutional challenge from multiple media outlets.Report

      • Francis in reply to Burt Likko says:

        Burt: I can. California’s right to privacy is constitutionally quite broad. Look at all the fuss over getting the names of police officers charged with use of excessive force.Report

      • Jaybird in reply to Burt Likko says:

        Eh, I can see a TMZ-like website dedicated to doing the detective work to figure out who the doctors are *NOT* leaving this list of doctors who it *MIGHT* be… and the damage would be done.Report

      • Will Truman in reply to Burt Likko says:

        I question whether a doctor would actually lose business at all if they participated in executions and it became publicly known. (Assuming they didn’t botch anything.)Report

  4. Michael Cain says:

    Nice, clear summary. Thanks!

    Does California spend any extra money up front when a DA has decided to pursue a death sentence? Here, when a DA is going to ask for death, there’s a lot more spent on the investigation and prosecution of the case (ie, the government is supposed to be more thorough in its preparation to make sure no errors are made). In round numbers, it’s usually about an extra million dollars. Since such prosecutions are handled by the county DAs, and most of their budgets can’t afford an extra million dollars, the state makes up the difference. One of our state legislators, who tried every year to get the death penalty repealed, often pointed out that at current rates that million dollars would pay for 30+ years of incarceration.Report

    • I think the money differential at the trial court level here is less dramatic than what you describe in your jurisdiction, but of course there must surely be a differential. I’m speculating when I say that, but that speculation is informed by the fact that the laundry list of “special circumstances” is large enough to encompass 87% of all murder charges brought, the cost must necessarily be more baked in to the allocation of prosecutorial resources for bringing a murder charge in the first place.

      But when the prosecutor advises the court and the defense that death is on the table, that triggers a number of procedural rights for the defendant, and the resources of the defense attorney (quite often a public defender, so there’s more public expense for you) tend to get allocated substantially more towards that case than others.

      Pretty much from any perspective one wants to look at it, seeking death costs the state more money than it would to seek life.Report

      • Francis in reply to Burt Likko says:

        Yup. The prosecutor must notify the court that it is seeking the death penalty quite early in the proceeding. In Los Angeles, the public defender’s office then puts two of its most senior and skilled defense counsel on the case who will take at least two years in preparing the defense, spending the bulk of the time on working up the opposition to the penalty phase (and, for the most part, dropping their usual caseload).

        Your average LWOPP (life without possibility of parole) case takes a fraction of the time and cost on the defense side alone.Report

      • Saul Degraw in reply to Burt Likko says:

        Do we know how many times the prosecution threatens death to get a defendant to plea for a LWOP sentence?Report

      • Burt Likko in reply to Burt Likko says:

        I don’t know and I’d have no idea how to gather such data. Certainly no prosecutor is going to say how many times they request death as a tactic to gain leverage to aim at a targeted plea for LWOP; seems to me that information would be their work product.Report

      • We passed the second anniversary of the Aurora, CO theater shootings this month. The defense originally offered a guilty plea in exchange for LWOPP. The prosecution said they would seek the death penalty, so the plea is guilty by reason of insanity. At some point we’ll get a trial, a jury will get to decide between dueling expert witnesses and testimony based on memories of memories to see if he meets the legal definition of sanity (seriously, he killed 12 people and injured 58 others — he may have been competent at the time, but no one who’s sane by any reasonable standard does that). Even if they find him guilty, the jury may not sentence him to death.

        Going through all of this on the chance that the state will kill him some 10-20 years down the road — and over time, the legislature has come closer and closer to doing away with the death penalty — seems an enormous waste.Report

      • James Hanley in reply to Burt Likko says:

        I don’t have moral qualms about execution of the guilty, but on the one hand we do without sufficient safeguards and have too high a risk of executing the innocent, and on the other hand we have sufficient safeguards and it costs more to eventually execute someone than it does to warehouse them for life. Either way, I don’t see where the death penalty can manage a positive benefit-cost ratio.

        It is bizarre, though, that providing more safeguards can make the death penalty less constitutional than providing fewer.Report

      • My previous comment in this thread should read “not guilty by reason of insanity”. I’m beginning to think I need a copy editor…Report

      • Morat20 in reply to Burt Likko says:


        I turned against the death penalty awhile back based on the simple belief that no system is infallible, including the justice system — as such, there will be a non-zero number of innocent people convicted of crimes they didn’t convict, or of a level of severity that was not correct, etc. In fact, judging by the innocence project (and living in Texas, where frankly it looks pretty certain we’ve executed at LEAST one innocent guy and darn near killed a few others) — well, there’s innocent people on death row too.

        The death penalty is irreversible. You can’t get the years back you spent in jail, innocent or guilty, but you can be set free. You can’t un-kill a corpse.

        If it’s cheaper to go with life without parole, if life without parole is easier to remedy in case of errors, why bother with execution? Honestly, is execution that much more of a deterrent than life without parole? It’s not like maximum security jails — where you keep the sorts of people who might be up for the death penalty — have a lot of escapes.

        Morally (is death-as-justice worth the occasional innocent?), pragmatically (costs, errors) — it just doesn’t make a lot of sense.Report

  5. Jaybird says:

    I’m trying to remember a Supreme Court case that tackled this and, I’m pretty sure, it tackled it in the last 10 or so years.

    There was a prisoner who argued that the process of multiple appeals took so long that it consisted of cruel and unusual punishment in and of itself and Scalia, being Scalia, rejoined something to the effect of (and I’m paraphrasing here) “if the process of appeals is so painful, the convict has the option of not appealing.” (I tried to find the exact quotation but failed to do so.)

    Anyone else remember that? This case reminds me a great deal of that case. I’m wondering why it wouldn’t be covered by it…Report

    • Burt Likko in reply to Jaybird says:

      You may be thinking of Hall v. Florida. Mainly, that case was about whether the prisoner’s low IQ was so low that he would count as “mentally retarded” and thus not a fit subject for the death penalty. But an issue came up in the oral arguments about the length of time Florida’s Death Row inmates spent while appellate review of their cases was completed, between the Attorney General of the state, and Justices Scalia, Kennedy, and Breyer (45:10 – 47:20). Scalia said at 47:6-7 that “most of the delay has been because of rules that we have imposed,” and Kennedy said at 47:9-10 that “[o]f course most of the delay is at the hands of the defendant.” But the questioning does reveal that both had concerns about the lapse of time and its seeming inconsistency with the purposes of punishment in general and capital punishment specifically.Report

  6. Kolohe says:

    “Every one of the defendants sentenced to death has been indigent, and there is very little reason to think that any future defendants will ever be otherwise.”

    Quibble: Scott Peterson.Report

    • Burt Likko in reply to Kolohe says:

      Ah! I have a riposte to your quibble, @kolohe . Scott Peterson was indeed represented by a pretty high-powered defense counsel, Mark Geragos, at the trial court level. But Geragos is no longer on the case, and Peterson’s new attorneys for the (pending) automatic appellate review counsel were, in fact, appointed from the indigency panel (see entries dated 1/7/2009 and 7/8/2009).

      This is no knock against the appellate attorneys, whose brief on behalf of Mr. Peterson is massive, thorough, exquisitely-researched, and testament to a high degree of both competency and zeal on behalf of an extraordinarily unpopular client. Whether it is persuasive or not I will leave up to the reader; however, the brief’s comprehensiveness is also illustrative of some of the reasons that this appellate process takes as long as it does.Report

  7. Kolohe says:

    “There have been some critics of the use of the system as a dilatory tactic — repeated appeals and reviews and filings based upon questionable “newly-discovered” evidence have led to some stern pushback from the bench in the past and made for powerful political fodder in certain elections. But the automatic direct appeal, and at least one habeas case, pretty much everyone thinks is reasonable.”

    I visited the OKC memorial and museum this past month. One thing I learned was the bombing galvanized a small political movement centered around some other Oklahoma death row inmate (who had been on death row for then 17 years) which eventually successfully pushed Congress to pass and Clinton to sign the Anti-Terrorism and Effective Death Penalty Act of 1996.Report

  8. Kolohe says:

    “A few other states also have very high ratios of prisoners awaiting completion of due process to actual executions: ”

    I’m no fan (anymore) of the death penalty, but this seems to be far better “problem” to have than its reverse. Slow rolling the process is infinitely better than what, for example, Iran seems to do.

    (sorry for the triple post, I’ve been doing other things while reading this (very good) piece)Report

  9. Brandon Berg says:

    So, reading between the lines, a lawyer defending a convict in a death penalty appeal is actually facilitating executions?Report

    • That’d be a pretty twisted analysis. The lawyer facilitates due process, an inherent good. The lawyer fights execution. And by causing delay, we now know, the lawyer fights expectations in a way perhaps not overtly intended.Report