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Death penalty determinations


In spite of the admonishment to keep church and state separate, the legal system of the United States is deeply rooted in the British common law system, which in turn was influenced by the Judeo Christian traditions of the bible (the current California common law system consecutively was conceived as an alternative for nineteenth century Spanish civil law, which undoubtedly felt the sway of the Catholic church, and have kept certain features as have other southwestern states that were originally part of Mexico).  So is it that the influence of the scriptures casts a shadow over the way we are governed, even though pains have been taken to keep our laws secular.

This perhaps, can explain the schizophrenia that exists around the issue of capital punishment, the pros and cons of which have been argued at least since the first officers of this nation’s court were appointed.  Like everything else, the penalties for homicide and other violent crimes are predicated on the political atmosphere of a given time span.  During the Depression of the 1930s, executions were regularly conducted but tapered off during World War II.  The late ’60s and early ’70s witnessed a virtual halt in state sanctioned killings, perhaps reflective of the anti-establishment-counter cultural trend sweeping the nation.  More recently, over 100 people have been wrongfully executed (later vindicated by evidence presented after their deaths) in the U.S. since 1976, according to a study by the Pew Charitable Trusts.

A quick glance at the current condemned inmate list on the Department of Corrections website ( shows a total of 669 people slated to receive the ultimate penalty.  Of these, 239 are black; while over a quarter (196) come from L.A. County.  California easily out distances the other 49 states by far, with Florida being a distant second with 397 inmates awaiting execution.

Political bargaining chips :

The issue of crime in general and the death penalty in particular has always been a volatile issue and a rallying point in political elections.  Regardless of party affiliation, no politician wants the reputation of being a weakling when dealing with the criminal element, especially at election time.

Former presidential candidate Michael Dukakis’ support of a weekend furlough program during which convicted murderer Willie Horton was able to embark upon a crime spree involving assault and battery, auto thief, knifing, pistol whipping and rape was considered a major factor behind Dukakis losing the 1988 election to the eventual winner, George H. W. Bush.  Former President Bill Clinton was accused of being opportunistic during his 1992 campaign when he took a break from campaigning to fly back to Arkansas and sign the order to execute mentally handicapped cop killer Rickey Ray Rector and escape his label of being soft on crime.  Rector later infamously refrained from eating the pecan pie dessert that came with his last meal, telling his guards he would save it for later as they escorted him down the hall to the death camber.

Be that as it may, the idea of sanctioning the government to take a human life has disturbed the collective psyche enough that a temporary moratorium has been successfully put in place over the past two years in California.  Piggy backing upon this, the California Commission on the Fair Administration of Justice (in place since 2004) was convened in Los Angeles last month, and scheduled to wind up in Santa Clara in late March.  While none of the results have been released, the commission will endeavor to come up with new execution protocols to address concerns about the existing process, among them the wide range of disparities even within the boundaries of this state (best evidenced by nearly a fifth of the guilty verdicts being over turned over the past two decades).

The ACLU’s Michael Soller mentioned the lack of transparency in as far as how the actual determinations to seek death are made.  As might be expected, a small percentage of the states’ counties (ten out of 58) account for the lion’s share (80 percent) of the death sentences.
Among the things that will probably be scrutinized will be the reasons behind these reversals.

The reasons cited range from shoddy legal representation to misconduct on the part of the prosecution.  Other topics covered will be those regularly included in death penalty discourse including the possibility of innocents being convicted and executed for murders they did not commit.  As always, the issue of race will be a potent topic not only because of the disproportionate number of minorities slated for execution, but also the likelihood of a defendant escaping the death penalty if their victim is black or brown.

Each successive method of terminating human life has been though to be a drastic improvement over the previous one, at least from a humane point of view.

Presently, the state’s ethnic break down (male and female) is Caucasian, 257; African American, 239; Hispanic, 137; and other, 36.

The selection process:

According to District Attorney Steve Cooley’s office, the criteria they use mirrors the penal code found in the District Attorney’s Legal Policies Manual, excerpts are as follows:

7.04 Special Circumstances Penalty Evaluation – Within ten working days following the preliminary hearing or the return of a Grand Jury indictment, the Head Deputy shall cause a “Special Circumstances Penalty Evaluation” memorandum to be executed and transmitted to the Bureau Director containing a factual summary of the case, an evaluation of the case and his/her recommendation regarding the appropriateness of the death penalty. The penalty recommendation constitutes privileged attorney work product and shall not be disclosed to the court or opposing counsel. If it is not possible to complete the evaluation within the ten-day period, the Head Deputy shall send a memorandum to the Bureau Director explaining the specific reasons for the delay and the expected completion date of the evaluation.

7.04.01 Bureau Director Evaluation – The Bureau Director shall forward the Special Circumstances Penalty Evaluation along with a memorandum containing his/her evaluation and penalty recommendation to the Special Circumstances Committee Chair within five days of receipt.

7.04.02 Special Circumstances Committee Evaluation and Recommendation. – Upon receipt of all applicable memoranda, the Special Circumstances Committee will meet and consider the case.

The Special Circumstances Committee shall consider all material submitted in accord with this procedure in making its recommendation. Individual committee members make penalty recommendations to the Committee Chair. The Committee Chair makes the final decision regarding the penalty to be sought. The Committee Chair may defer making a penalty decision to obtain additional information. The Special Circumstances Committee Chair is responsible for determining whether this office will seek the death penalty in every special circumstances case.

7.04.03 Appropriateness of Death Penalty – A recommendation that the death penalty is appropriate shall not be made unless it is believed that the evidence bearing on the issue is of such convincing force that a reasonable and objective fact finder, after considering all the relevant evidence, would conclude that the aggravating circumstances outweigh the mitigating circumstances (as defined in Penal Code § 190.3) and justify the death penalty.

Recommendations include consideration of the circumstances of the crime charged in the present proceeding and the existence of any special circumstances as enumerated in Penal Code § 190.2; the presence or absence of criminal activity by the accused which involved the use or attempted use of force or violence or the express or implied threat to useforce or violence; the presence or absence of any valid prior felony conviction; whether the offense was committed while the accused was under the influence of extreme mental or emotional disturbance; whether the victim was a participant in the accused’s homicidal conduct or consented to the homicidal act; whether the offense was committed under circumstances which the accused reasonably believed to be a moral justification or extenuation for his/her conduct; whether the accused acted under extreme duress or under the substantial domination of another person; whether at the time of the offense the capacity of the accused to appreciate the criminality of his/her conduct or to conform his/her conduct to the requirements of law was impaired as a result of mental disease or the effects of intoxication; the age of the accused at the time of the crime; whether the accused was an accomplice to the offense and his/her participation in the commission of the offense was relatively minor; any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime; and the accused’s character, background, history, mental condition and physical condition, except that no criminal activity which did not involve the express or implied threat to use force or violence shall be considered unless it has resulted in a prior felony conviction.

A recommendation that the death penalty is appropriate must be the result of an informed opinion, taking into account the circumstances set forth above, together with the four basic purposes of a criminal prosecution, which are; the protection of society from individuals who pose a danger to others; the deterrence of other individuals from posing a similar danger in the future; the punishment of individuals for failing to fulfill their responsibilities to obey the laws on which the preservation of an orderly and free society rests; and the rehabilitation of individuals to the extent that they will no longer be a threat to others.

The factors listed above shall be addressed in the “Special Circumstances Penalty Evaluation” memorandum submitted to the Special Circumstances Committee Chair.

7.04.05 Waiver and Agreement Form When Death Penalty Not Appropriate – When the District Attorney’s Office does not seek the death penalty and the defendant is found guilty of first degree murder and a special circumstance allegation is found to be true, there exists only one other penalty under Penal Code § 190.3. Therefore, there is no triable issue of fact for the jury concerning penalty. The purpose for holding a penalty hearing is eliminated once the decision has been made that the death penalty will not be sought.

However, a defendant’s agreement to waive penalty phase does not preclude the Committee Chair from changing the penalty decision to death if newly discovered evidence or information warrants a change. (Leo v. Superior Court (1986) 179 Cal.App.3d 274, 283-284) The assigned deputy shall be responsible for advising the Special Circumstances Committee Chair in writing, through the Head Deputy and Bureau Director, of any newly discovered evidence or information relevant to the appropriate penalty to be sought.

There may be a consensus that all murder is wrong, but there still remain those who believe that the circumstances surrounding some homicides warrant the ultimate punishment.  In Los Angeles County, in particular, the scene of a disproportionate share of the state’s more unsavory behavior, the task of sifting through the area’s capital offenses lies with the Special Circumstances Committee of the District Attorney’s office.  It is helmed by Assistant District Attorney Curt Hazell.  The other members include two additional assistant district attorneys, six crime bureau directors, and two rotating seats for other prosecutors.  These veteran litigators meet on Wednesday afternoons to discuss separate cases.  The final decision is then made by Hazell who has been empowered by Steve Cooley, the District Attorney, to reach a conclusion.