California lags behind other states' systems

But many are divided over merits of caution versus efficiency

By STEVEN MAYER
Californian staff writer
e-mail: smayer@bakersfield.com

Jay La Suer

Stringing up suspected criminals from the nearest "hangin' tree" was a form of Old West justice most Americans would probably agree did nothing to protect the rights of the accused.

Today, 150 years after state-conducted executions in California were authorized by legal statute, some critics wonder if the Golden State has moved too far in the other direction.

They look to places like Texas, Virginia and Missouri -- where executions are carried out at much higher rates than California -- as examples to which California should aspire.

Others say Texas is the last place California should look to for guidance.

From 1973 through 1999, Texas sentenced to death 829 defendants, more than any other state during that period, according to figures compiled by the Bureau of Justice Statistics, the statistical arm of the U.S. Department of Justice.

Nearly one-quarter, or 199, of those sentenced, were executed during the same 27-year period. More than 50 more have been put to death in Texas in just the past two years.

Virginia also has shown little reluctance to execute its convicted killers. Nearly 60 percent of the prisoners it sent to Death Row since the 1970s have been executed, a rate 60 times as efficient as California's rate of 1 percent.

California overly cautious?

Elisabeth Semel

But is efficiency a virtue where the death penalty is concerned?

Not according to Elisabeth Semel, a criminal defense lawyer and former director of the American Bar Association's Death Penalty Representation Project.

Semel has considerable experience representing defendants in capital cases, and says Californians should not view states in the nation's "Death Belt" as models of capital punishment.

"Texas has no public defender system," she said. "Neither does Alabama or Georgia."

Comparing California to other states is "dangerous," said Semel, who now heads the Death Penalty Clinic at the University of California, Berkeley School of Law. Although she finds California's system lacking -- with its shortage of high-quality capital defense attorneys and "unrealistic caseloads" for courts and defense attorneys -- she finds many other states to be irresponsible in their administration of capital punishment.

"To the extent that California moves slowly, relative to other states, Californians should be thankful," she said.

California does move slowly. Of that, there's little disagreement.

Since California re-enacted the death penalty in 1977, more than 750 convicted murderers have been sentenced to death by juries across the state. But in California, a death sentence seldom results in an execution.

During the past quarter-century, a total of nine -- or about 1 percent of the those sentenced to death in California -- were executed. More than three times that number died in prison, making old age, disease and suicide bigger threats to Death Row prisoners than lethal injection.

"It's a travesty," said Assemblyman Jay La Suer, the former undersheriff of San Diego County and now the Republican vice chairman of the state Assembly committee responsible for death penalty legislation.

"While these people sit on Death Row, the families of victims die the death of a thousand cuts," La Suer said.

If the success or failure of California's contemporary system of capital punishment is measured by whether the sentence of death is likely to be carried out, then California's system must be viewed as a failure, La Suer says.

It's an issue in which divisions are deep -- and sometimes bitter. Death penalty proponents claim the appeals process goes over the top in affording protections to killers.

Opponents say death sentences are too common and too arbitrary. And race, income level and dumb luck too often are factors in who gets a death sentence and who doesn't.

Swayed by political winds

In the heart of Dixie, political influence also appears to play a part in who lives and who dies.

Nearly three dozen of Alabama's Death Row inmates received their death sentences from judges who overrode jury recommendations of life in prison without parole.

Most state judges are elected and the frequency in which they impose death sentences are often used in campaigns.

In a June 16 New York Times article, William Bowen Jr., the former presiding judge of the Alabama Court of Criminal Appeals, said the state's jury override provision places extreme political pressure on judges to impose the death penalty over the wishes of the jury.

"Judicial politics has gotten so dirty in (Alabama) that your opponent in an election simply has to say that you're soft on crime because you haven't imposed the death penalty enough," Bowen was quoted as saying.

Judges run for re-election on that basis, Bowen said, because the popular opinion in Alabama is "'Let's hang 'em.'"

Bowen's comments also were cited in a report released in August by the American Bar Association's Section of Individual Rights and Responsibilities. The report argues that serious problems associated with capital punishment exist in many areas of the country.

"Since 1976, when the U.S. Supreme Court permitted states to reinstate capital punishment, nearly 100 condemned individuals have been exonerated," the report found. "Equally disturbing is the fact that, in many of these cases, the system that erroneously convicted these individuals and sent them to Death Row also failed to discover and correct its errors."

Semel says concern about the fairness of the death penalty has again entered the national consciousness precisely because miscarriages of justice have occurred in states that do not have proper safeguards in place.

She cited racial disparities, lack of access to DNA evidence in some states and huge discrepancies from county to county -- Kern included -- in the quality of legal representation available to capital defendants.

"In some counties in California, the quality of counsel isn't what it should be," she said. "Kern may be one of those."

Troubled system

Last year, the Texas Appleseed Foundation, a nonpartisan group that examines issues of legal representation for the poor and minorities, released an extensive examination of the Texas indigent defense system. The study focused particularly on the ways in which legal defense services for those with little or no financial resources have been structured and delivered.

The study found a "complete absence of uniformity in standards and quality of representation" in the counties it studied. The 23-county sample, which covered more than 60 percent of the state's population, was constructed to include a representative cross-section of large, medium and small counties, and a cross-section of the state's geographic regions, according to the report's authors.

And yet another study in Texas -- this one by The Chicago Tribune -- found that in one-third of the cases of the more than 130 Death Row inmates executed during George W. Bush's tenure as governor, the defendant or offender was represented at trial or on initial appeal by an attorney who had been or was later disbarred, suspended or otherwise sanctioned.

The study, published last year, also found that 23 of the cases involved jailhouse informants, considered by some to be among the least credible of witnesses; and 40 involved trials where the defense attorneys presented either no evidence at all or only one witness during the sentencing phase.

Stephen Green, the assistant secretary of California's Youth and Adult Correctional Agency, which oversees the state prison system and executions, acknowledged the system has its problems.

But he dismissed any suggestion that Texas -- or other states that execute their condemned prisoners at a faster rate than California -- should be viewed as doing a better job. Green said he would rather the justice system err on the side of caution than on the side of "efficiency."

"When we take someone to the death chamber (in California), we do so with full confidence in the guilt of that individual," Green said. "It speaks to the strength of our system."

Stymied process

In his role as committee vice chairman, La Suer would like to see legislative proposals designed to expedite the state's process of capital punishment and ease the bottleneck in state courts -- if any such bills existed.

But La Suer said he doesn't know of any recent legislative efforts to change the status quo on California's Death Row.

"If you know a lawyer who is willing to craft a bill, I'll carry it," La Suer said.

"This state has gone so far afield in trying to protect the rights of those on Death Row," he said. "It's almost impossible to get something through a legislature dominated by the ultraliberals."

As a former undersheriff of San Diego County who spent 31 years in law enforcement, La Suer says he is a strong advocate of the death penalty. But even he admits lawmakers are focusing little attention to California's system of capital punishment, in part because the issue is not on the public's radar screen.

The victims and their families are the losers, he said.