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A Massive But Dubious Look at California's Death Penalty

Judge Arthur Alarcon has a second law review article coming out on California's death penalty, this time co-authored with Paula Mitchell a former Alarcon clerk who is also an adjunct professor at Loyola LA.  Carol Williams has this article in the LA Times.

It will take some time to digest this 184-page article, but some issues are evident on a quick inspection.  A section titled "Alternate Routes Available: When Legislatures Lead and Governors Govern..." refers only to states that abolished or severely restricted the death penalty.  Why is Virginia, which has shown the nation that capital cases can be resolved in a reasonable time without cutting back the scope of the death penalty and without huge expenditures, not in this section?

The article does refer briefly to the needed reform of filing state habeas petitions in the trial court, and it correctly notes that the legislative committees have repeatedly killed the needed legislation.  "The Legislature's refusal to correct the causes for the unconscionable delay continues to burden the taxpayers who have already spent billions of dollars to fund a death penalty system that does not work."

For the direct appeal counsel backlog, the article says we need to increase the payment rate substantially above the current $145 per hour.  That is a misdiagnosis.  For noncapital cases, California pays $80-100/hour, and at that rate there are enough willing attorneys that the appellate projects turn away qualified applicants.  Compensation rate is not the problem.  The main problems are that (1) California is far too restrictive in who it considers "qualified"; and (2) the capital defense bar has created a culture in which handling a capital case is deemed a massive undertaking that consumes one's life for years, requiring the lawyer to exhaustively brief every conceivable issue.  But the US Supreme Court says that is not required and is not even good advocacy.  See Smith v. Murray, 477 U.S. 527, 536 (1986).

The article lists several propositions that might be adopted.  Unfortunately, the proposition for keeping the death penalty at its present scope accepts the false premise that inadequate funding is the primary problem with the present system, and so the proposition comes with a high initial price tag.  That alone is enough to give it no chance of enactment in the present environment.  Particularly horrifying is the article's acceptance of the stacked commission's conclusion that we need to increase the budget of the Habeas Corpus Resource Center fivefold.  HCRC as it presently exists is the problem, not the solution.  It is run by precisely the wrong people -- people who do not want the system to work.  The good ideas in prior legislation noted by the article are not included in its propositions.

What we need to do is put an end to obstruction.  Expand the pool of lawyers who are deemed qualified to take these cases.  Require briefs to be filed in a reasonable time and within reasonable page limits.  Make clear that the lawyer's duty is as set forth by the Supreme Court -- to identify a few keys issues and focus on those.  Reform state habeas to start in the trial court, be filed in a reasonable time, and to eliminate second or subsequent petitions for any claim except actual innocence.  Qualify for the federal fast track provided by Congress to get these cases through the federal courts.


The failure of this 184 page report to include any mention of Kent's common-sense steps to end or substantially reduce the 17-25 year lag between conviction and execution lays bare any claim of impartiality from this purportedly august panel.

Sure thing. Kent's just like Fox News--"Fair and Balanced."

Read the "about" page. This blog has a frank point of view and makes no pretense of neutrality, unlike some of our dishonestly faux-neutral opponents.

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