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California’s Dysfunctional Death Penalty: Bay Area Bar Associations Ask What’s to Be Done?

By Natasha Minsker, ACLU of Northern California


April 3, 2009 – San Francisco -- With more than 680 people on death row and court review of death sentences taking 25 years, nearly everyone in California agrees that the state’s death penalty is terribly broken. The hard question is: what’s to be done about it?

Leaders from Bay Area Bar Associations came together recently to discuss that difficult question. Hosted by BASF and co-sponsored by the Bar Associations of Alameda, Contra Costa and San Mateo Counties, the forum featured three local criminal justice experts: George Kennedy, the retired District Attorney of Santa Clara County, Diane Bellas, the Public Defender of Alameda County, and David Coleman, the Public Defender of Contra Costa County. BASF President Russ Roeca moderated.

Both George Kennedy and Diane Bellas served on the California Commission on the Fair Administration of Justice (CCFAJ or Commission), see As Kennedy described, the California Senate created the Commission in 2004 to investigate the causes of wrongful conviction and wrongful execution in California and to make recommendations to ensure that California’s criminal justice system is just, fair and accurate. John Van De Kamp, former Attorney General and former Los Angeles District Attorney, chaired the Commission. The remaining 22 members of the Commission represented every part of the criminal justice including the Sheriffs’ Association, Police Chiefs’ Association, the Department of Justice, and defense agencies.

As Kennedy explained to the audience at the February Forum, the CCFAJ spent three years investigating every aspect of California’s justice system, issuing a series of reports on topics such as mistaken eyewitness identification, false confessions, and problems with forensic science. After issuing a total of eight reports on the causes of wrongful conviction, the CCFAJ turned to the death penalty in January 2008. The Commission held a series of three public hearings on the death penalty, receiving testimony from 72 witnesses including Chief Justice Ronald George. In addition, the CCFAJ received thousands of pages of submissions, including new research on costs, geographic disparities, and the impact of the death penalty on victims.

According to Bellas, the testimony and data received by the Commission painted a picture of a death penalty system broken at every level. The average time elapsed from death sentence to execution in California has been 17 years, based on the 13 executions carried out since 1978. But the CCFAJ calculated that the time needed for post-conviction review is now over 25 years. Much of this delay is caused by the shortage of attorneys willing to take death penalty cases, in addition to sheer number of cases, all of which must be reviewed by the Supreme Court. Bellas also noted that the Commission was told that two out of three California death sentences are reversed in federal court due to ineffective assistance of counsel.

David Coleman, an expert on criminal defense standards, explained this high rate of reversal. In 1989, the American Bar Association adopted standards for the effective performance of counsel in death penalty cases, “the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases” (“the Guidelines”), see Revised in 2003, the Guidelines embody the legal community’s assessment of what is ethically expected of an attorney who must defend his or her client’s life. The California and United States Supreme Courts have relied on the Guidelines in assessing whether an attorney’s performance meets the requirements of the California and United States Constitutions.

The Guidelines impose on the defense attorney a duty to investigate and present to the jury the entire life history of the defendant, including complex mental health evidence. Coleman noted how completely different these duties are from the normal obligations of a defense attorney in a criminal case. Fulfilling these obligations requires much more time and money than a regular murder case: Coleman estimated that the defense alone in death penalty cases typically costs $1-2 million. But most counties do not have sufficient funds to provide the mandated defense services. Thus, Coleman agreed with the CCFAJ assessment that the high rate of reversal for ineffective assistance of counsel in death penalty cases was due largely to the lack of resources at the trial level.

With all of these problems, what is to be done? As Bellas explained, the CCFAJ issued a series of recommendations to improve the functioning of California’s death penalty. Most of these recommendations require spending more money on attorneys for the defense, prosecution, and court system, at every level. The Commission then added up the costs: we would need to spend $250 million each and every year to implement all of these reforms—nearly $100 million more than we are already spending on the death penalty.

For retired District Attorney Kennedy, the cumulative evidence proved to him beyond a reasonable doubt that it is time to replace the death penalty with permanent imprisonment. Kennedy told the audience that years of experience had shown him that the high costs of the death penalty system, the long delays, and the prolonged pain caused to victims’ family members all compel him to conclude that “it is time to throw in the towel.” Kennedy said that he believes the hundreds of millions spent on the death penalty would be better used on other law enforcement needs. He also noted that the United States is an elite club of five nations that still carry out most of the world’s executions, side by side with Iran, Iraq, Saudi Arabia and China.

Roeca asked the panelists what role could local Bar Associations could play in addressing the many problems with the death penalty. Roeca noted that BASF and the Alameda County Bar Associations have both passed resolutions calling for jurisdictions seeking the death penalty to provide sufficient funding for defense counsel to meet the ABA Guidelines. Coleman observed that such efforts by Bar Associations can be very helpful, citing the creation of the Guidelines by the ABA as one such example. Bellas encouraged Bar Associations to foster more dialogue between criminal and civil attorneys. Bellas noted that many civil attorneys are unaware of the negative impacts of the death penalty system on their cases, such as long delays in trial settings and little attention from the Supreme Court.

Roeca concluded that there are no easy answers to the problems presented by the death penalty, but the legal community has an obligation to begin asking the tough questions and taking action. The State of California and the legal community in particular, can no longer afford to ignore the high costs and harmful impacts of the death penalty.


Natasha Minsker is the director of the ACLU of Northern California’s Death Penalty Policy program.

The Bar Association of San Francisco (BASF) is a nonprofit voluntary membership organization of over 8,000 attorneys, law students and legal professionals in the Bay Area. Founded in 1872, BASF is one of the largest and most dynamic metropolitan bar associations in the U.S., with a long and distinguished record of community action, public service and service to the legal profession.

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