Tuesday, May 22 , 2018, 3:04 am | Fair 53º


Susan Estrich: California’s Death Penalty Debacle

Odds are you'll get away with murder, not be executed for it

California has more prisoners on death row than any other state. Last year, according to the Los Angeles Times, it added 28 more, for a total of 717, contrary to trends elsewhere.

Susan Estrich
Susan Estrich

Meanwhile, there hasn’t been an execution in five years because the state can’t get the right combination of the three drugs necessary for a safe and effective execution. I kid you not.

Some deterrent. You have a much better chance of getting away with murder than you do of being executed for it.

If you tried to design the worst possible system, the most inefficient in accomplishing anything and most ineffective in serving its own stated goals, you couldn’t do better than this. The issue is no longer whether you’re for or against the death penalty on moral grounds; it’s how you fix a punishment system that is rotting from the head.

If you’re for the death penalty, you should be mad because we don’t actually have it. It’s not a real deterrent if it takes decades (literally) to even get close, and so long as the criminal justice system is as flawed as it is, it’s simply not OK to shortcut review when death is the punishment.

I have always thought that death penalty proponents should be leading the charge to support and improve the criminal justice system so that it won’t make the sort of mistakes that justify the lengthy and expensive review. In all of these respects, California’s issues are only an exaggerated version of many states — a great headline for a much bigger problem.

If you’re against the death penalty, you should be mad because 717 people are now waiting in line for that injection, and one of these days, the state will find the magic supply. In truth, the delay has had very little to do with the suffering of the prisoner facing death, and everything to do with opposition to the death penalty and concerns about the fairness of sentencing.

The injection string is about to run out, however, and it’s not at all clear to me that the new governor and attorney general, both known to personally oppose the death penalty, are going to want to take the lead in telling the majority of Californians — albeit a smaller majority than a few years ago — that they’re wrong about the death penalty, particularly when both campaigned on the promise not to do just that. However much success opponents have enjoyed, when the drugs finally arrive, nothing is blocking the door.

Meanwhile, the homicide rate in Los Angeles continues to decrease.

Hooray, the death penalty deters murder. Hooray, we don’t need the death penalty to deter murder. Hooray, at least this debate has nothing to do with crime policy.

Ever since Willie Horton — if not before — the politics of crime have been dominated by debates over the death penalty and detention (one strike, three strikes, mandatory minimum, life for this and that) that have left prosecutors (who make the charging decisions) with the power that should belong to judges, have left prisons overcrowded with a mish mash of defendants, a few of whom predictably will get out too soon and commit heinous crimes, leading to more “automatic” sentencing law designed to ferret out such criminals — which have exactly the opposite impact. And so it goes.

So politician after politician has, if not embraced the death penalty, affirmed his or her responsibility to carry it out. But it doesn’t get carried out, nor do the fundamental underlying issues ever get addressed, even as the lawyers go back and forth to court, decade after decade.

You’d think we’d all be mad enough to at least talk honestly. We’ll see.

— Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.

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