Experts divided on reasons why capital sentences have declined since 2000.
By Phillip Reese — Bee Staff Writer
Published 2:15 am PST Saturday, February 18, 2006
California sent fewer convicted murderers to death row during the last six years than during any similar period since the death penalty was reinstated in the late 1970s, state and federal data show.
In the 1990s, California, on average, sent 35 convicted murderers to death row each year, according to data from the Bureau of Justice Statistics and the California Department of Corrections and Rehabilitation. Since 2000, that number has fallen to an average of 21 per year – a nearly 40 percent decline.
Researchers, prosecutors and death penalty opponents offer different reasons for the trend. Some suggest there’s been a drop in cases worthy of the ultimate punishment. Others say jurors and prosecutors are more ambivalent about the death penalty.
“I’d say part of it is (district attorneys) are using their discretion to seek the death penalty only when it is worth their time and resources,” said state Chief Justice Ronald M. George. “Another factor … may be that juries themselves are exercising more discretion about imposing the death penalty. And it may be that DAs are finding they are getting more (sentences of) life without the possibility of parole.”
On Tuesday, at 12:01 a.m., the state is scheduled to execute Michael Angelo Morales at San Quentin State Prison. The execution would be the third in the state during as many months.
Nationally, the rate of death penalty convictions has dropped too, federal data show. About 165 murderers were sent to death row, on average, each year from 2000 to 2004, down from an average of 299 death row convictions annually during the 1990s.
“(California) absolutely parallels the national pattern,” said Franklin Zimring, William G. Simon Professor of Law at UC Berkeley, who has done extensive research on the death penalty. “The United States is the world capital of mixed feelings about capital punishment.”
Zimring is among those who attribute the drop in death penalty convictions to the state’s declining crime rate. But he believes the link has been indirect – a result of less fear and anger about violent crime, rather than fewer death penalty candidates.
During the 1990s, about 500 people a year were sent to California prisons on first-degree murder charges, state prison data show. Since 2000, that number has dropped to around 400, though that 20 percent decline is not nearly as steep as the drop in new death penalty convictions.
Regardless of that decline, Zimring said, there are always more potential capital punishment cases than there are capital punishment prosecutions. The big difference is that jurors and prosecutors are less frustrated now that they see crime is falling.
Jurors today, Zimring said, don’t feel like they need to send a message to would-be criminals. The opposite was true during the 1990s.
“Despite a six-fold expansion in the prison system after 1980, crime hadn’t gone down much,” Zimring said, describing the situation in the 1990s. “The frustration wasn’t like the first time you put your 75 cents in the machine and nothing came out. This was like after you’ve been kicking the machine for 10 years with nothing happening.”
Sgt. Eric Messick, a prison spokesman at San Quentin – where California’s death row is located – offered a similar analysis. During the 1990s, several high-profile murders occurred in California, including that of Polly Klaas. Killers such as Richard Allen Davis, who kidnapped the 12-year-old from her Petaluma bedroom and then murdered her, inflamed public sentiment, and their acts led directly to more death sentences.
Since then, Messick said, “things have been quieter.”
Several prosecutors take a simpler view of the trend: There just aren’t as many cases these days worthy of the death penalty.
On death row, there are 17 inmates from Sacramento County who were sentenced during the 1990s, compared with five who were sentenced since 2000. That’s not because of any change in prosecutor attitude about the death penalty, said Lana Wyant, special assistant deputy district attorney for Sacramento County.
“We are very selective on death penalty cases,” she said. “Those will be very aggravated cases. I think we’ve seen a change since the early 1980s and early 1990s … I don’t think we’ve seen the number of outrageous-type cases since then.”
Fresno County prosecutors say the same thing. About a dozen current death row inmates were sentenced during the 1990s in Fresno County. Since 2000, only one person on death row was sentenced there. “We just haven’t seen cases that warrant prosecution in that way,” said Bob Ellis, assistant district attorney for Fresno County.
Others see more at work. One big change, they say, is intense focus on scientific evidence, such as DNA testing, and efforts to prove the innocence of some condemned inmates. Every time the public hears about someone on death row getting exonerated, attitudes about the death penalty change, said George Williamson, co-chair of the Capital Case Litigation Committee of the California District Attorneys Association.
“Jury attitudes have helped drive that number down,” he said. “When we (pick juries), it’s very clear that the number of people who have problems with the death penalty has increased pretty significantly than what we saw in the 1980s and early 1990s.”
That increased ambivalence, Williamson said, affects prosecutors’ decisions about seeking the death penalty in the first place.
“You can’t in good faith do a case like this unless you have a reasonable likelihood of success,” said Williamson, who is also chief deputy district attorney for Solano County.
Putting on a death penalty prosecution is expensive, Chief Justice George noted. It often takes two or more prosecutors. It usually takes a long time to pick a jury. Then the case must be argued. Then, prosecutors must go through the penalty phase. All of which, George said, is especially daunting as many district attorneys see their county funding shrink or remain stagnant.
“The expense of trying these cases, it takes much more effort and time,” George said. “It may be that district attorneys are making that a component of their discretionary call – basically on a cost-benefit basis. Does this case merit a drain on … the DA’s resources?”
The final piece of the puzzle may be the state’s “three strikes” law, passed during the 1990s, which made it possible to sentence repeat criminal offenders to life in prison.
San Diego County District Attorney Bonnie Dumanis said in an interview that the law has taken many potential death penalty candidates off the streets.
A lot of the worst criminals “are now in prison before they commit the murders,” she said.
Jennifer Chacon, a law professor at UC Davis, agrees that the “three strikes” law is affecting capital punishment in the state, but for a different reason. Many California residents, she said, see the law as an appropriate deterrent, lessening the need for something more drastic like the death penalty
“The death penalty has maybe lost some of its importance as a crime-fighting tool in California,” she said.
Experts disagree about whether the number of death row convictions will continue to fall, but – barring some particularly heinous crimes that inflame public sentiment – none thought the numbers would be likely to jump back to their old levels.
“I see no reason for any immediate change in the trend,” George said.