Death penalty varies by
geography in California
SAN FRANCISCO — California now has 638 condemned inmates on death row — roughly one for every 54,700 current residents. But some counties have condemned many more inmates than others of similar size, according to an Associated Press review of Corrections Department data.
While most counties send roughly the same numbers of criminals to death row per capita, the disparities in some counties are so pronounced that legal experts say capital punishment is being unfairly doled out in California.
The reasons why some counties condemn many more inmates are complex — for one, crimes happen more frequently in some places than others. But prosecutorial zeal and the attitudes of jurors also are factors.
The death penalty is getting renewed scrutiny in California, where the scheduled lethal injection of Kevin Cooper on Tuesday will be its first execution in two years.
Often, the debate focuses on questions about race, the reliability of evidence and even arguments about cruel and unusual punishment — all issues raised by Cooper’s defenders. And like those in the rest of the nation, California’s death row is disproportionately black. Statewide, about 39 percent of inmates awaiting execution are white, and 35 percent black. Eighteen percent are Hispanic. About 47 percent of the California’s population is white; more than 6 percent black and roughly 33 percent Hispanic.
The AP review of the Corrections Department data points to a phenomenon death penalty opponents also find disturbing — whether a criminal is sent to death in California sometimes depends on where the crime was committed.
“Capital punishment should not depend on an accident of geography,” said defense attorney Robert Sanger, whose lengthy analysis of California’s death penalty system appears in the current issue of Santa Clara Law Review.
San Francisco, where jurors and prosecutors tend to be liberal, and Kern County, where conservatives hold sway, each have roughly 700,000 people. But San Francisco has just one person on death row, when statistically it should have about 14. Kern County has 23 people awaiting execution, 10 more than the per capita norm.
The ratio is calculated by dividing California’s 35.3 million population by the 645 death sentences handed out to the 638 men and women now awaiting execution.
Kern’s district attorney, Edward Jagels, is so resolutely in favor of the death penalty that he retried David Murtishaw for a third time in 2002 for the murders of three filmmakers after the first two death sentences were commuted to life without parole by the California Supreme Court and the 9th U.S. Circuit Court of Appeals.
Jagels said he wanted to avenge the victims and seek revenge on the judiciary, even if Murtishaw’s latest trip to death row is reversed.
“The crime was so heinous and so cold blooded, and the reasoning from the 9th Circuit was so preposterous, we felt we had to go forward,” Jagels said.
Seeking the death penalty is not an option in the city and county of San Francisco, whose only inmate on death row was sent to San Quentin 15 years ago, before district attorney candidates began campaigning to out-liberal their opponents.
“I will never charge the death penalty,” newly elected District Attorney Kamala Harris said in her inauguration speech last month, adding that she would only sparingly invoke California’s get-tough three strikes law. The speech was part personal philosophy, part an acknowledgment that jurors are unlikely to vote for death in the state’s most liberal county.
Shasta County in far Northern California takes an opposite approach. Juries there have condemned 10 prisoners and rejected the death penalty only once. If death sentences were spread out evenly among the counties, it would have sent three condemned inmates to San Quentin State Prison.
“We take a very, very dim view of homicides,” said Shasta County District Attorney Jerry Benito, who was elected last year after 14 years as a county prosecutor.
Benito said the county seeks the death penalty in 10 percent of its capital crimes — which include multiple murder, killing a police officer or murdering while committing a felony, such as robbery. But he recently declined to seek death for a drug dealer accused of murdering his partner in crime. “That was a close call,” he said.
Typically, authorities seek death when a police officer or innocent victims are killed.
“Each case is reviewed on its merits. The vulnerability and innocence of the victim are important factors,” said Grover Trask III, Riverside County’s district attorney since 1982.
Riverside has the highest number of inmates per capita on death row, with 54. A statistically proportionate number would be slightly more than 30. Twelve more death cases are pending trial, Trask said.
“Death penalty laws were implemented to use,” Trask said, noting the conservative bent of the Inland Empire community he serves. “Is there a reasonable likelihood that 12 jurors will vote death? The trier of facts is not the district attorney. It’s the people in the community.”
The only county with more condemned inmates is Los Angeles, the state’s most populated, with 193 — 11 more than expected under the 1 to 54,700 ratio.
Lance Lindsay, executive director of Death Penalty Focus in San Francisco, which lobbies against capital punishment, said the statistics confirm what he believes is readily apparent — “Anybody with a little common sense knows that local politics on the ground drives the death penalty.”
Sanger’s solution: have a statewide committee of prosecutors review capital cases to ensure uniform standards, and have the governor commute any death sentences obtained without the committee’s prior approval. His recommendation, perhaps unsurprisingly, has fallen on deaf ears.
Meanwhile, prosecutors aren’t likely to push for a capital trial to be moved to San Francisco. But San Mateo, directly to the south, was on the short list to host the trial of Scott Peterson for the murder of his wife Laci and their unborn son. San Mateo County has 16 inmates on death row, three more than expected under the per-capita ratio.
The Peterson case was moved to San Mateo from Stanislaus County, which has 9 death row residents, equal to the per capita ratio.
Cooper, who still maintains he’s innocent, was sentenced for hacking four people to death in San Bernardino County after escaping from prison in 1983. During pretrial hearings, someone posted a sign containing a racial slur at the courthouse, saying the black defendant should hang. His reception in San Diego, where the trial was moved, wasn’t free of hostility — graffiti on the courthouse said “Die Cooper.”
David Alexander, one of his attorneys, says race may have been a factor in the decision to seek death for Cooper — an assertion San Bernardino authorities vehemently deny.
San Diego is largely conservative and has a heavy military presence, but the county has sent the fewest people to death row per capita in California. San Diego sent 32 of the inmates now on death row, and would have almost 57 if the death penalty were spread evenly statewide.
The numbers are lopsided because San Diego is among the safest counties of its size nationwide, said Paul Pfingst, the county’s district attorney from 1994 to 2002. But he also said he did not vigorously pursue capital punishment.
“I was very cautious about the use of the death penalty,” he said. “I demanded a very high degree of proof of guilt and a very high degree of evidence that death was the appropriate sentence.”
Still, San Diego is nothing like San Francisco, said Paul Levikow, a spokesman for Pfingst’s successor, Bonnie Dumanis.
“It’s a methodical process undertaken to determine whether to go for the death penalty,” Levikow said. “It’s not an eenie, meenie, minie, moe situation over here.”
© 2004 San Mateo Daily
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