Death Takes a Holiday

The Recorder

Death sentences are continuing their descent in the United States, according to a Washington, D.C.-based group that shows numbers falling by more than 50 percent over the last five years. The national trend is reflected in California, where James Anderson, chair of the California District Attorneys' Association's committee on the death penalty, says he has witnessed "creeping doubt" among jurors. One reason for juror unease: DNA exonerations.

Continuing a Trend

Jahna Berry
The Recorder

For the fifth consecutive year, fewer people have been sentenced to death in the United States, according to a report released Friday by an anti-death penalty group.

The Washington, D.C.-based Death Penalty Information Center projects that 139 death sentences will be rendered in 2003. That's a decline of 13 percent from 2002 and a drop of more than 50 percent over the last five years.

The Death Penalty Information Center's report compiles annual death judgment information from the Bureau of Justice Statistics. While the bureau won't release a 2003 figure until next year, Dieter's group predicts that the final number is likely to show a further drop.

Richard Dieter, the information center's executive director, attributes the decline to increasing public sentiment against the death penalty. He noted that a majority of people back capital punishment -- 64 percent according to the most recent Gallup poll. But that number is lower than the 80 percent approval number Gallup reported in 1994. Also, more juries now have the legal option to sentence defendants to life without parole, he said.

"It gives juries a middle ground," Dieter said.

The report also found the number of executions and the number of U.S. inmates on death row decreased in 2003. California, which has the nation's largest death row -- 632 inmates, followed by Texas at 451 and Florida at 381 -- is part of that trend. Statistics from the state Supreme Court show 42 death judgments in 1999 and 21 in 2002. In 2003, death sentences rose slightly to 23.

Texas continues to lead the country in executions. But Dieter noted that jurors there don't have the option of sentencing a defendant to life without parole. They must either choose death or a prison term that carries a parole option.

Rory Little, a Hastings College of the Law professor who once sat on former Attorney General Janet Reno's death penalty review committee, said the national and state decline reflects a "cultural hesitancy" about the death penalty.

"We, as lawyers, became aware of the actual innocence phenomenon four to five years ago," Little said, referring to the rash of death row inmates exonerated after their convictions.

News about those exonerations have trickled down to "the person on the street," he said. And people are uneasy about the disproportionate number of minorities sentenced to death.

One criminal justice expert who backs the death penalty agreed that anti-death penalty sentiment is growing but said that other factors were at work.

"Fatigued" prosecutors don't seek capital punishment as much as they used to because "they know that the sentences are not going to be carried out," said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation in Sacramento.

Court rulings -- such as the U.S. Supreme Court decision in Ring v. Arizona -- have overturned death sentences in cases that were done by the book, he said. Among other things, Ring held that a jury -- not a judge -- must decide whether to sentence a defendant to death. The U.S. Supreme Court plans to decide whether that finding is retroactive, potentially affecting the death sentences of more than 100 inmates in the West. Ring did not affect California death sentences.

Despite the declining numbers, Scheidegger -- who contributed to a California District Attorneys Association white paper defending the death penalty -- contends the number of death sentences will rise again. Scientific advances will give prosecutors the tools to assure jurors that the right person will be convicted for the right crime, he said.

"The best argument that they have is residual doubt. The more assurance you have," the less residual doubt there will be, he said.

California Death Spiral

Jahna Berry
The Recorder

When it comes to death sentences, the Alameda County, Calif., district attorney's office had a rough year.

Prosecutors pursued five capital cases but only got the death penalty in one. One high-profile defeat came in June when a jury deadlocked on whether to sentence Ruben Vasquez to death for killing a sheriff's deputy during a 1998 robbery of an Outback Steakhouse in Dublin. Ultimately, 27-year-old Vasquez was sentenced to life without parole.

But Alameda is not the only county in California to see a drop in death penalty sentences. The number of death judgments delivered by juries statewide has tumbled to one of the lowest points since the death penalty was reinstated 25 years ago.

"The numbers have been down for a few years now," said Michael Ogul, an assistant public defender in Alameda County who co-chairs the death penalty committee for the California Public Defenders Association.

In Alameda County, defense attorneys and prosecutors alike attribute the decline in death sentences to a change in jury attitudes. With DNA evidence exonerating some on death row in Illinois and in other states, they say, juries have become more wary of handing out the verdict.

But death penalty experts throughout the state point to other reasons as well. In Los Angeles County, which contributes the largest share of the state's death judgments, the district attorney has become more selective about pursuing the high-cost cases. In at least one county inexperienced prosecutors are having trouble persuading juries to vote for execution. And one prosecutor chalks the decline up to Three Strikes, citing its success in putting criminals with long rap sheets -- the most likely candidates for the death penalty -- behind bars.

While the reasons vary, counties statewide are seeing the trend.

In 1993, Alameda County prosecutors won death judgments in six of the eight cases pursued compared with this year's yield of one in five. In conservative Orange County, jurors in 1995 delivered the death penalty in all four of the cases where it was sought. In 2002, Orange County prosecutors again sought death in four cases, but didn't succeed in a single one. (All of those cases have been or will be retried.)

The death penalty has been California law since 1872, but executions were halted from 1967 until 1978 due to numerous challenges in state and federal courts. State lawmakers revised the penalty in 1977 to pass constitutional muster, and voters approved Proposition 7, California's current death penalty statute, in 1978.

The first year, the California Supreme Court received six death sentences. Since then, the number has fluctuated, reaching a high of 46 sentences in 1992.

But since 1999 the number has slid. And as of Dec. 16, the court in 2003 had received just 23 death judgments.

Although Alameda has a liberal reputation, in the 1990s county juries demonstrated a conservative streak and voted for death more often, said veteran Oakland criminal defense attorney James Giller. "Now the pendulum has swung back the other way."

Assistant District Attorney James Anderson agrees.

"A lot of people's attitudes about death have changed a lot," said Anderson, a veteran death penalty prosecutor who chairs the California District Attorneys' Association's committee on the death penalty.

Anderson has witnessed what he calls "creeping doubt" among jurors, who refer specifically in questionnaires to the situation in Illinois where DNA evidence exonerated some inmates and raised questions about that state's judicial system and its treatment of capital cases. Alameda County leaders weighed in on the national debate earlier this year with a symbolic resolution calling for a death penalty moratorium.

Giller says those doubts show up in voir dire, when more prospective jurors in Alameda are saying they could never vote for death in the penalty phase. Meanwhile, he added, more juries are returning life-without-parole verdicts.

Ogul, the assistant public defender, says he's seeing the same thing. "Juries are less likely to vote for the death penalty than they used to be."

In Los Angeles, the numbers have dipped in part because District Attorney Steve Cooley has been more selective in seeking the death penalty since he was elected in 2000.

"Three years ago in L.A., you could take a look at cases where they were seeking death and there'd be no rhyme or reason," said John Brock, who supervises special circumstances cases for the public defender.

Before Cooley came into office, L.A. prosecutors seeking death sometimes returned with life sentences -- or even outright acquittals.

Peter Bozanich, the chair of Cooley's special circumstances committee, said that since he's taken over, not a single death jury has voted for life without parole, nor have any returned acquittals or found them guilty on lesser charges.

It's not enough to seek death and let a jury sort out the rest, Bozanich said. He said he carefully weighs a case's aggravating and mitigating factors. "If I recommend death … a lot of money is involved."

Brock called Bozanich a "hard- nosed" prosecutor who knows the value of a case. "The political change was, in part, because they were not getting the death verdicts," Brock said.

Most death judgments come from Southern California -- about 30 percent have come from L.A. alone since 1978. Bay Area counties charge fewer capital cases, and lawyers here say that makes it hard to identify trends. But in the local counties that bring death cases, prosecutors say they're aware, at least anecdotally, that they've got a tougher sell now.

Jurors want stronger evidence of guilt, said Contra Costa County DA Bob Kochly. "People want to be more sure, more so than in the past," he said.

Lane Liroff, a Santa Clara County deputy DA who tries capital cases, says juror doubts about the death penalty can actually give prosecutors a tactical advantage. Unlike jurors who are uncertain about their position on the death penalty, opponents to it are now less likely to "fly under the radar" during jury selection and favor the defense in jury deliberations, Liroff said.

Orange County, long a death penalty stronghold, is also trying fewer death penalty cases. At one time there were as many as 17 capital cases in the pipeline, said prosecutor Lewis Rosenblum.

Complicating the picture, the office this year has been rocked by political scandals, attorney departures and an attorney general inquiry. However, Rosenblum says that the drop in death penalty convictions in his county has more to do with prosecutorial experience.

When Orange County DA Tony Rackauckas was elected in 1998, he promoted several veteran capital case prosecutors to supervisory posts, said Rosenblum, one of the promoted lawyers.

"There are brand-new people trying their first cases," he said.

Though prosecutors failed to get death judgments in four tries last year, in 2003 they've won the death sentence in two of three penalty phases, Rosenblum said.

In Riverside County, Chief Deputy District Attorney Kevin Ruddy says Three Strikes has reduced the number of death penalty cases in his county.

Historically, many of the county's capital cases involved robbery-murders committed by defendants with rap sheets "as long as your arm," Ruddy said. Since California voters passed the Three Strikes law in 1994, there are fewer special circumstance defendants with similar criminal histories.

"We don't get those anymore," Ruddy said.

A San Diego defense attorney thinks confusion over the meaning of life without parole has contributed to the drop in death sentences.

In the 1990s, jurors reported that they voted for death because they thought that there was a chance the defendant could get paroled if the jury voted for a life sentence, said Barton Sheela III, a San Diego County alternate public defender who has tried death penalty cases.

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Now jurors know that "life without parole" means exactly that, Sheela said. "Jurors realize that they don't have to lean that far."

Because death penalty cases can take years to go to trial, some prosecutors and defense attorneys cautioned against reading the recent decline as a permanent one.

Every jury is different, said Jeff Dusek, a San Diego deputy DA who has been trying death cases since 1988, and so is every case. "When a jury gets a death penalty case, they are not distracted by anything in the community but that case," he said.

Death penalty cases are "too complicated," to analyze in that way, said Rosenblum, the Orange County prosecutor.

"If you get the right prosecutor with the right case," he said, "you will get the right result."

Anderson, the Alameda prosecutor, thinks the number of death verdicts will rise again. He predicts that scientific and legal developments -- such as court decisions that back the admissibility of mitochondrial DNA -- will help ease jurors' fears about sentencing the wrong person to death. And he says that even in liberal counties there will always be crimes that prompt jurors to vote for death.

"We are a liberal county," Anderson said. "But if you mess with kids it's over."

Death Penalty Issues
Truth in Justice