Can Californians afford to keep the death penalty?

Elisabeth Semel, The Sacramento Bee

By Elisabeth Semel, The Sacramento Bee

It took more than three years of litigation, which the state lost repeatedly, before the attorney general's office conceded that the execution protocol must be open to public scrutiny.

Indeed, throughout the legal challenges to California's method of lethal injection, the governor, the attorney general and the Corrections Department unswervingly opposed any disclosures. Even as the process of public notice and comment on the state's lethal-injection protocol begins, a complicated tangle of legal proceedings remains before the state can resume executions.

The state's lethal-injection protocol still faces a primary challenge in federal court. The central claim is that the manner and means by which lethal-injection executions are carried out in California creates a substantial risk that the inmate will experience an excruciatingly painful death, violating the Eighth Amendment prohibition against "cruel and unusual punishment."

U.S. District Judge Jeremy Fogel, who is presiding over the lethal-injection challenge in the case of Michael Morales, has twice suggested that the state reconsider its procedures in light of the "substantial questions" raised by records of past executions, as well as other evidence. Fogel declared the state's procedures unconstitutional in December 2006 and gave the state 30 days to advise the court whether it intended to change its procedures. The state responded by embarking upon the construction of a new execution chamber – in secret and without the necessary legislative approval. At last count, the cost to taxpayers was about $850,000.

All of the legal hurdles must be resolved before the state can resume lethal injections. In the meantime, the financial costs of capital punishment continue to pile up.

A recent editorial in the Daily Astorian, an Oregon newspaper, asked, "Can Oregon afford the death penalty?" The editorial declared that "incarceration – not education – is Oregonians' only entitlement." It urged that while "investment in education is about the future, and it is about hope," investment in the death penalty "is about final reckoning, an admission of gross failure."

Californians are all too familiar with the fact that while we rank 47th in the nation in per-pupil public school spending on a cost-adjusted basis, we are first in what we pay for prisons and on the administration of the death penalty. California is housing so many people on death row that it plans to build a new facility. The price of construction is $400 million and, over 20 years, taxpayers will pay $1 billion in operating costs.

My opposition to the death penalty is not based on an economic calculation. I would prefer that capital punishment end because we come to our collective senses about what Justice Harry Blackmun called a penalty that "remains fraught with arbitrariness, discrimination, caprice, and mistake." However, I am not an elected public official who has the responsibility of spending the taxpayers' dollars wisely.

The question posed by the Daily Astorian's editors does not appear to have occurred to our governor or more than a handful of state legislators. Nor have the majority of the state's prosecutors tuned in to what Orange County, N.J., Police Chief James Abbott, a member of the state commission that recommended abolition, wrote about the quarter of a billion dollars New Jersey spent on administering the death penalty over the past 30 years: "I find this use of state resources offensive. … Give a law enforcement professional like me that $250 million, and I'll show you how to reduce crime. The death penalty isn't anywhere on my list."

Asked if he considers expense in deciding whether to seek the death penalty, San Bernardino District Attorney Michael Ramos replied, "When you are deciding for a victim's family who has lost a loved one, it is hard to think about money." Prosecutors know this is the answer that shuts down debate. One of the unique features of the death penalty is the level of fear that opposing it instills in many politicians. Local district attorneys neither speak for nor represent victim family members. They represent, are elected by and are paid by the people of California, who should demand that these elected officials act with transparency and accountability, disclosing exactly how much they are spending on the death penalty, and, in the words of 6th U.S. Circuit Court of Appeals Judge Boyce F. Martin, just how little "the public is getting for its money."

Elisabeth Semel is a law professor at UC Berkeley, School of Law and is the director of its Death Penalty Clinic.