Loyola of Los Angeles Law Review Loyola of Los Angeles Law Review
Volume 44
Number 0
Special Issue: Rethinking the Death
Penalty in California
Article 3
2-1-2011
Essay: Facing the Facts on the Death Penalty Essay: Facing the Facts on the Death Penalty
James P. Gray
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Essay: Facing the Facts on the Death Penalty
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S255
ESSAY: FACING FACTS
ON THE DEATH PENALTY
James P. Gray*
For decades the death penalty has been an emotional and almost
unmentionable issue that has affected people in a myriad of different
ways.
1
Regardless of people’s philosophic points of view, it is
important to be aware of the facts. This Essay addresses head-on
most of the common arguments that are used in favor of the death
penalty, as well as some facts about and responses to them. The
Essay also presents additional facts and arguments that should be
considered as we all decide how best to proceed in this emotional
area. Certainly everyone is entitled to his or her own opinion in this
or any other matter, but no one is entitled to his own facts.
Typically, proponents of the death penalty present five
justifications for its implementation: (1) reducing to zero the chances
that the offender will return to society; (2) closure for the victims’
families; (3) deterrence against future violations by other offenders;
(4) this is the appropriate punishment for the offender of such a
serious crime; and (5) rightful societal vengeance (often cited as “an
eye for an eye”).
2
* James P. Gray is a retired judge of the Orange County Superior Court and a former
federal prosecutor in Los Angeles, is the author of A
VOTER’S HANDBOOK: EFFECTIVE
SOLUTIONS TO AMERICA’S PROBLEMS (2010), and can be contacted at JimPGray@sbcglobal.net
or through his website at www.JudgeJimGray.com.
1. This piece is an adaptation of two entries on Judge Gray’s blog: J
UDGE JIM GRAY—IT’S
A
GRAY AREA. Judge Jim Gray, Facing Facts on the Death Penalty, JUDGE JIM GRAY—IT’S A
GRAY AREA (Mar. 16, 2008), http://judgejamesgray.blogspot.com/2008/12/facing-facts-on-death-
penalty-by-judge.html, and Judge Jim Gray, Further Thoughts on the Death Penalty, J
UDGE JIM
GRAY—IT’S A GRAY AREA (Mar. 23, 2008), http://judgejamesgray.blogspot.com/2008/12/
further-thoughts-on-death-penalty-by.html
2. Daniel R. Oldenkamp, Note, Civil Rights in the Execution Chamber: Why Death Row
Inmates’ Section 1983 Claims Demand Reassessment of Legitimate Penological Objectives, 42
V
AL. U. L. REV. 955, 969, 970 n.62, 1000 n.166 (2008); see Susan A. Bandes, Child Rape, Moral
Outrage, and the Death Penalty, 103 N
W. U. L. REV. COLLOQUY 17, 18–19, 20–21 (2008);
William W. Berry, Ending Death by Dangerousness—A Path to the De Facto Abolition of the
Death Penalty, 52 A
RIZ. L. REV. 889, 893 (2010); Abram S. Barth, Note, A Double-Edged
Sword: The Role of Neuroimaging in Federal Capital Sentencing, 33 A
M. J.L. & MED. 501, 519
S256 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:S255
A common concern is the possibility of offenders returning to
society. As most people know, when someone is convicted of a
“special circumstance” murder, the only two sentences allowed
under California law and the laws of most other states are either the
death penalty or life without the possibility of parole (LWOP).
3
In
times past, a person receiving a “life” sentence could still be paroled,
but now if an offender receives an LWOP, parole is simply not
possible under the law without a pardon from the Governor—which
is politically extremely unlikely. Furthermore, to my knowledge, no
one serving such a sentence has ever escaped from prison. As a
result, this is probably no longer a reason for the death penalty to be
invoked.
Regarding the issue of closure for the victims’ families, consider
that, as of today, California has had only thirteen executions since
the death penalty was reinstated in 1978.
4
Nonetheless California
now has more than 680 convicted offenders on death row.
5
Of those
offenders, 112 have been there for more than twenty-five years, 217
for more than twenty years, and 546 for longer than ten years.
6
The
last two people executed were Clarence Ray Allen and Stanley
“Tookey” Williams, both of whom were executed about twenty-six
years after they had committed their offenses.
7
As a result, “closure”
for the families, if it comes at all, comes after keeping the books
open, sometimes for decades.
Consequently, not only does the death penalty not bring closure,
it actually keeps the families of the victims on an emotional roller
coaster. Because of the appeals and occasional re-trials, the families
are forced for years to relive the grisly details of their loved one’s
death—over and over again. In many ways, this is actually using the
grieving families as bit players in a long-continuing political drama.
(2007).
3. C
AL. PEN. CODE § 190.2 (2001); Ryan Elias Newby, Note, Evil Women and Innocent
Victims: The Effect of Gender on California Sentences for Domestic Homicide, 22 H
ASTINGS
WOMEN’S L.J. 113, 135 (2011).
4. Inmates Executed, 1978 to Present, C
ALIFORNIA DEPARTMENT OF CORRECTIONS AND
REHABILITATION, http://www.cdcr.ca.gov/Capital_Punishment/Inmates_Executed.html (last
visited Mar. 19, 2011).
5. Database: California’s Death Row Inmates, T
HE DAILY BREEZE,
http://www.dailybreeze.com/ci_12852080 (last visited Mar. 19, 2011).
6. Id.
7. Inmates Executed, 1978 to Present, supra note 4.
SPECIAL ISSUE] FACING FACTS S257
And when it comes down to it, many of the families discover that it
does not furnish much satisfaction to see the object of one’s hatred
simply go to sleep when hooked up to a needle. For all of these
reasons, what we are doing is actually the opposite of closure for the
victims’ families.
In addition, since many people deem it to be an “insult” to the
memory of the deceased victim not to invoke the maximum
punishment possible, there is a perceived obligation to seek the death
penalty regardless of the costs—either human or financial. But if the
maximum authorized punishment were a sentence to life in prison
without the possibility of parole, the families would probably be
emotionally satisfied with that result and get on with their lives.
Well then, what about deterrence against future offenders?
Probably the only circumstances in which deterrence would be a
factor would be offenses like murder for hire (both for the people
paying for the deed to be done and for the killers themselves),
murder after lying in wait, kidnapping in which the victim is killed,
multiple murders or murders while already serving an LWOP
sentence, and treason. These involve situations in which the acts are
usually planned and well thought out in advance.
However, the large majority of offenses for which the death
penalty is imposed are for offenses that are not so planned. That is to
say, most burglars and robbers do not plan in advance to kill
anybody, but things get out of control and people are killed as a
result. And the offenders that do make prior plans are often involved
in heavily emotional situations, commonly jilted lovers or people
with severe psychiatric disorders, so they are not focusing on
deterrence anyway. Those realities, coupled with the fact that most
offenders never feel that they will ever be caught, negate the effects
of deterrence for most offenses.
One more fact enters into this equation. As a practical matter, if
a person knows that he has committed an offense that would qualify
him for the death penalty, that person tends to feel, with some
justification, that he has nothing more to lose. That belief in turn
results in the perpetrators killing witnesses to the offense to keep
them from testifying against them and also killing the police officers
who attempt to arrest them. Consequently, what we end up with is
the opposite of deterrence.
Regarding the punishment of the offender, I have no particular
S258 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:S255
wisdom to suggest, other than saying that in many ways serving a
sentence of life without the possibility of ever being released would
in many ways be a more severe sentence for most offenders than
actually being executed.
That leaves the issue of societal vengeance. Of course, this is a
complicated and multifaceted issue. On the one hand, there has been
a historical and even biblical rationale that the proper penalty for
wrongly taking the life of another is to forfeit one’s own life.
8
On the
other hand, it is hard to justify our country being the world’s
champion of human rights if it is so at odds with much of the rest of
the world on the issue of capital punishment.
For example, since California reinstated the death penalty in
1978, no fewer than sixty other countries have chosen to abolish it.
9
Although there are dozens of countries that still have the death
penalty, only six of those countries, including the United States of
America, are responsible for 90 percent of all executions.
10
The other
five countries are China, Pakistan, Iran, Iraq, and the Sudan.
11
As
such we are keeping pretty lowly company in the area of human
rights.
The discussion above outlines the five traditional arguments in
favor of invoking the death penalty. The death penalty is an
emotional topic. Although some may characterize my views to be
ones of a “bleeding heart liberal,” I have firsthand experience and a
unique perspective as a trial court judge in Orange County from the
time I was appointed by Governor Deukmejian at the end of 1983
until I retired in January of 2009.
Additional important facts also affect the discussion. One of
those facts that is almost unknown by the general population is the
financial cost of death penalty cases.
12
Estimates are that it costs
8. See generally Ron Gleason, THE DEATH PENALTY ON TRIAL: TAKING A LIFE FOR A LIFE
TAKEN (2009) (examining the historical and biblical rationale behind the death penalty).
9. Abolitionist and Retentionist Countries, A
MNESTY INTERNATIONAL,
http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries (last visited
Mar. 19, 2011).
10. Dead Reckoning, D
EATH PENALTY INFORMATION CENTER,
http://www.deathpenaltyinfo.org/node/642 (last visited Mar. 19, 2011).
11. History: Federal Death Penalty and International Views, D
EATH PENALTY
CURRICULUM, http://deathpenaltycurriculum.org/student/c/about/history/history-9.htm (last
visited Mar. 19, 2011).
12. Arthur L. Alarcón & Paula M. Mitchell, Executing the Will of the Voters?: A Roadmap
to Mend or End the California Legislature’s Multi-Billion-Dollar Death Penalty Debacle, 44
SPECIAL ISSUE] FACING FACTS S259
taxpayers seven times more money to pursue death penalty cases
than it would to try, convict, pursue all appeals, and keep the
perpetrator in prison for the rest of his life. More specifically, in
2008, the California Commission for the Fair Administration of
Justice estimated that it costs taxpayers about $114 million more per
year to process death penalty trials, along with all of the
accompanying appeals and writs of habeas corpus proceedings, than
it would to process trials in which the maximum sentence were to be
life without the possibility of parole.
13
Moreover, if additional
recommended reforms to the system are instituted, that amount will
jump to about $232.7 million per year.
14
People do not understand
these facts, but the costs of the extra investigators, attorneys, jury
selection, court reporter’s transcripts, appeals, habeas corpus
proceedings, and extra procedural safeguards are staggering.
Why is this process so complicated and expensive? As Justice
Sims wrote in a concurring opinion in Bennett v. Superior Court,
15
as
a practical matter there really are four distinct trials in death penalty
cases. The first is a trial (almost always with a jury) that addresses
the possible guilt of the offender. In the second trial, assuming the
offender is convicted, the jury decides whether the penalty should be
death or life without the possibility of parole. Then the third trial
focuses on the jurors in the case who arrived at those first two
decisions to see if any of them were involved in any form of
misconduct, such as telling other jurors about their own personal
experiences in life.
The fourth trial confronts the trial attorneys who were involved
in the case. At this point, the prosecutors are “tried” to see if they
presented their arguments unfairly or too emotionally, and the
defense attorneys are “tried” to see if by chance they did not afford
the offender the effective assistance of counsel on any material issue.
These “trials” usually take place in habeas corpus proceedings in
federal courts after the state appeals have finally run their course. At
this time the defense is also entitled to virtually every scrap of paper
prepared by any law enforcement officer that ever had anything to do
LOY. L.A. L. REV. (SPECIAL ISSUE) S41, S62–110 (2011).
13. Death Penalty: The High Cost of the Death Penalty, D
EATH PENALTY FOCUS,
http://www.deathpenalty.org/article.php?id=42 (last visited Mar. 19, 2011).
14. Id.
15. 54 Cal. Rptr. 3d 283, 339 (Ct. App. 2006).
S260 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:S255
with the investigation or any of the witnesses in the case.
How has this situation been allowed to get so extreme? First of
all we are a compassionate society, and we seem to be institutionally
unwilling to allow anyone to be executed unless all avenues of
innocence and mitigation have been explored. Secondly, some
people are so radically opposed to the death penalty that they have
become zealous in their dedication to an exhaustive defense, or even
to delay just for the sake of delay. For them it is a question of
morality. Therefore no approach is too extreme if it has even the
slightest hope of delaying the final outcome. And in actuality some
of these seemingly extreme arguments have been successful in the
past in obtaining a reprieve down to an LWOP, or even an
exoneration of the underlying offense.
As a result, and also as a practical matter, all cases involving the
death penalty have become expensive beyond belief, and are delayed
well beyond reason. In fact, I was the judge on the preliminary
hearing in the death penalty case of a man named Teofilo Medina
who was shown in my court to have robbed four ARCO Mini Marts
and thereafter killed the non-resisting clerks by shooting them in the
back of the head at point-blank range. In short, he was a bad man.
But my hearing took place in 1987, and he was eventually convicted
and sentenced to death in 1988.
16
He has been on death row ever
since that time and has seven attorneys still actively working on his
appeal, which has not yet been heard.
This is not at all an exception. Richard Ramirez, otherwise
known as the “Night Stalker,” was convicted in 1989 of thirteen
murders, five attempted murders, eleven sexual assaults, and
fourteen burglaries.
17
His first appeal went directly to the California
Supreme Court, as is required by law. This is an enormous
expenditure of resources. In fact, the California Supreme Court’s
statistics show that it spends about 20 percent of its time just on
death penalty appeals.
18
But even so, Ramirez’s appeal was not heard
16. Teofilo Medina Jr.—California Death Row, CRIME AND CAPITAL PUNISHMENT,
http://www.cncpunishment.com/forums/showthread.php?740-Teofilo-Medina-Jr.-California-
Death-Row (last visited Mar. 19, 2011).
17. People v. Ramirez, 139 P.3d 64, 72 (Cal. 2006).
18. Rone Tempest, Death Row Often Means a Long Life; California
Condemns Many Murderers, But Few Are Ever Executed, L.A.
TIMES, Mar. 6, 2005, at B1
(stating that California Chief Justice Ronald M. George estimated that the state’s highest court
spends about 20 percent of its time and resources on death penalty cases alone).
SPECIAL ISSUE] FACING FACTS S261
until June 2006, which was seventeen years after his conviction.
Even though the appeal was decided about sixty days later, if his
remaining appeals and writs are heard within the average time
schedule of additional writs and appeals, his convictions will not be
final until the year 2014—at the earliest.
Moreover, at least Ramirez has appointed appellate counsel.
Currently only two of seventeen inmates sentenced to death in the
year 2002 have had attorneys appointed for their automatic appeals,
and none sentenced in 2003 or thereafter have had any appointed at
all.
19
As a result, of the almost 700 prisoners on death row, eighty-
eight inmates still have not had counsel appointed for them, and none
of them have the funds to hire attorneys themselves.
Why is there such a problem finding attorneys to represent these
people? Because one must be experienced in this specialized field,
and those professionals can make a great deal more money on other
matters than what the state will pay them on these death penalty
cases. In addition, it is often emotionally draining work. The number
of attorneys willing to accept the appointment is declining, and the
number of unrepresented sentenced prisoners continues to increase.
But there are many other serious problems in addition to the
financial ones. Although about 60 percent of the general population
continues to voice support for the death penalty, more and more of
those who are required to impose it are withdrawing their support.
That includes prosecutors, juries, judges, and prison officials. As
such, the numbers of death penalty convictions nationwide dropped
from 317 in 1996 to 128 in 2005.
20
Moreover, this withdrawal of
support also includes medical doctors, who are increasingly seeing
their participation in the death penalty as a violation of their
Hippocratic Oath.
21
Another large issue that must be considered with regard to the
death penalty is both fairness and the appearance of fairness based on
things like racial disparities. Statistics show that the death penalty is
invoked a great deal more often when the defendant is non-white or
19. Arthur L. Alarcón, Remedies for California’s Death Row Deadlock, 80 S. CAL. L. REV.
697, 720–21 (2006).
20. Evan Thomas, Injection of Reflection, N
EWSWEEK, Nov. 19, 2007, at 40.
21. Daniel N. Lerman, Note, Second Opinion: Inconsistent Deference to Medical Ethics in
Death Penalty Jurisprudence, 95 G
EO. L. J. 1941, 1945 (2007).
S262 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:S255
when the victim is white.
22
In addition, although the U.S. Supreme
Court held several years ago that it was unconstitutional to execute
juveniles,
23
people are increasingly concerned that we are executing
people who are mentally retarded.
24
Additional problems are seen when either the prosecutors or the
judge on the case are up for election in the near future. Are the
critical decisions about life or death being made for legal reasons, or
for political ones? Many people are having second thoughts about
these decisions and are beginning to believe that this is something
with which a civilized society should not be involved.
Victims’ families are also now frequently seen speaking out
publicly against the execution of the convicted perpetrators. One of
these is a man named Bud Welch, whose daughter died at the hands
of Timothy McVeigh in the bombing of the Oklahoma City Federal
Building. As Mr. Welch continued to think about the situation, he
stated publicly that he had come to two realizations: (1) that even
after McVeigh would be dead, he himself would still not actually feel
any better; and (2) that all of this rage and hatred against McVeigh
was hardly a fitting tribute to his daughter’s memory.
25
Finally, there is the question of making a mistake. With the
development of DNA evidence that is considered more than
99.9 percent reliable, programs like the Innocence Project have
shown that more than two hundred inmates have been falsely
convicted for crimes they did not commit.
26
And that includes fifteen
22. Hugo Adam Bedau, The Case Against the Death Penalty, ACLU CAPITAL PUNISHMENT
PROJECT (Mar. 12, 2011, 9:38PM), http://users.rcn.com/mwood/deathpen.html.
23. Roper v. Simmons, 543 U.S. 551, 578–79 (2005). The Supreme Court held that the
Eighth and Fourteenth Amendments prohibit execution of individuals who were under 18 years of
age at the time of their capital crimes. Id.; see Natalie Pifer, Note, Is Life the Same as Death?:
Implications of Graham v. Florida, Roper v. Simmons, and Atkins v. Virginia on Life Without
Parole Sentences for Juvenile and Mentally Retarded Offenders, 43 L
OY. L.A. L. REV. 1495,
1498 (2010).
24. See Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“[D]eath is not a suitable punishment
for a mentally retarded criminal. . . .”). The Supreme Court held that executions of mentally
retarded criminals were “cruel and unusual punishments” prohibited by the Eighth Amendment.
Id.; Pifer, supra note 23, at 1497.
25. See Yangkyoung Lee, Father of Bombing Victim Speaks Against Death Penalty,
D
AILYNEBRASKAN.COM (Nov. 28, 2008, 4:11PM), http://www.dailynebraskan.com/news/father-
of-bombing-victim-speaks-against-death-penalty-1.992115 (describing Welch’s reasons for
speaking against the death penalty); see also Terre Haute, “No Healing From Killing”: Timothy
McVeigh Set to Die in May, CBS
NEWS, (Mar. 16, 2001), http://www.cbsnews.com/stories/2001/
03/16/deathpenalty/main279319.shtml (describing Welch’s “message of forgiveness”).
26. Richard Willing, DNA to Clear 200th Person; Pace Picks Up on Exonerations, USA
SPECIAL ISSUE] FACING FACTS S263
defendants who were sentenced to death. Of course, in many ways
that can be turned into an argument in favor of future death penalty
sentences in which DNA evidence would be used to obtain the
convictions. Nonetheless, increasingly, people have been questioning
the death penalty because of its inability to correct mistakes.
We are human, and we can make mistakes. The largest numbers
of false convictions are based on erroneous eyewitness
identifications.
27
Others happen for various reasons based on false
confessions by the defendants or unreasonable appeals to the jurors’
emotions. So an increasing number of people are concluding that, for
many or all of the reasons that have been presented here, it is
unworthy for an enlightened society to involve itself in the killing of
criminal defendants.
In that regard, the New Jersey legislature passed a law that the
governor signed repealing the death penalty, which made it the first
state in several decades to do so.
28
More recently, Illinois banned the
death penalty.
29
In addition, several other states have imposed
moratoriums on its utilization until all of these issues can be studied
further.
30
In fact, this position has become so prevalent around the
world that no country that imposes the death penalty is deemed
qualified to join the European Union.
31
TODAY, Apr. 23, 2007, at A1. A former U.S. Army cook spent nearly twenty-five years in prison
for a rape he did not commit. He was the 200th person exonerated by DNA evidence. Id.; see also
Robert Whiston, DNA Doppelganger Dilemma, R
OBERT WHISTON POLICYPUZZLES,
http://robertwhiston.wordpress.com/2008/02/29/6/ (last visited Mar. 24, 2011) (describing the use
of DNA testing for exoneration purposes).
27. Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated
Eyewitness Identification Testimony, 41 U.C.
DAVIS L. REV. 1487, 1490 (2008) (“Studies of
wrongful conviction cases have concluded that erroneous eyewitness identifications are by far the
leading cause of convicting the innocent.”).
28. Robert J. Martin, Killing Capital Punishment in New Jersey: The First State in Modern
History to Repeal Its Death Penalty Statute, 41 U.
TOL. L. REV. 485, 543 (2008) (“On December
17, 2007, New Jersey became the first state to repeal its death penalty statute since the United
States Supreme Court again legalized capital punishment in 1976.”); see also Tom Hester, Jr., N.
J. Governor Signs Death Penalty Ban Into Law, N.Y.
SUN, Dec. 18, 2007,
http://www.nysun.com/national/nj-governor-signs-death-penalty-ban-into-law/68234/ (“Governor
Corzine signed into law yesterday a measure abolishing the death penalty, making New Jersey the
first state in more than four decades to reject capital punishment.”).
29. Monica Davey, Illinois Bill Eliminating Death Row Is Approved, N.Y.
TIMES, Jan. 12,
2011, at A12.
30. See, e.g., Press Release, Death Penalty Information Center, Maryland Governor Declares
Moratorium on Executions (May 9, 2002), http://www.deathpenaltyinfo.org/node/522.
31. Richard C. Dieter, The Death Penalty and Human Rights: U.S. Death Penalty and
International Law, O
XFORD ROUND TABLE ON HUMAN AND CIVIL RIGHTS 5 (2002) available at
S264 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:S255
So whether the death penalty is appropriate or not in theory, I
believe the facts show unmistakably that the system is dysfunctional
and that the laws do not work as intended. And, as a practical reality
in today’s real world, they cannot be made to work.
Accordingly, I have personally concluded that the victims’
families would be better served by its repeal; that the huge amount of
tax money would be better spent on improving our roads or paying
the salaries of our police and firefighters; that both the trial and
appellate courts could better devote their resources and energies by
addressing a number of other issues in our society crying out for
attention; and that this country could rejoin most of the rest of the
civilized world by repealing this practice. The system we have today
is neither swift nor sure nor effective.
http://www.deathpenaltyinfo.org/Oxfordpaper.pdf (“The European Union has made the abolition
of the death penalty a precondition for entry into the Union, resulting in the halting of executions
in many eastern European countries which have applied for membership.”).
