On May 29, 2007, Luis Alberto Hernandez borrowed his aunt's gray Honda sedan to stake out the parking lot of the Hayward medical center where his estranged girlfriend worked. In the weeks prior, Hernandez had been leaving threatening messages on Rose Goulart's phone, and she had made her two teenage children walk convoluted routes to and from school so their father wouldn't discover where she lived. "You can't hide from me," Hernandez had told her once on the phone; "I'll find you." That morning, he did.
When Goulart arrived, Hernandez pulled out of the parking spot where he'd been lurking and blocked her with his car. He got out, approached her, and, after a brief exchange, lunged at Goulart, stabbing her repeatedly in the abdomen with a sharpened screwdriver in front of almost a dozen witnesses. Goulart was rushed to Eden Trauma Center, where she was pronounced dead. Hernandez was taken into custody by the police.
Although his crime was one of hundreds of murders to occur in Alameda County that year, it was unique for another reason. On April 27 of this year, the District Attorney's Office indicated that it would seek the death penalty for Hernandez, the first time since 2006 that Alameda County prosecutors have sought that punishment in any case. Yet, evidence suggests that trying to send Hernandez to death row will be expensive for the taxpayers of Alameda County. Although they are disputed by some prosecutors, studies done by the American Civil Liberties Union suggest that the cost of seeking death for Hernandez should be at least $1.1 million more expensive than seeking his permanent imprisonment.
"A lot of people think the death penalty is cheaper, but that's a myth," said Natasha Minsker, death penalty policy director for the American Civil Liberties Union of Northern California and the head of the Alameda County Coalition for Alternatives to the Death Penalty. "We want to raise awareness about the costs because we think this is an issue people can find common ground on."
In this time of unprecedented fiscal crisis, the ACLU is making such costs the central focus of its latest campaign. On June 28 this year, the organization, in partnership with the Budget Justice Coalition and the Drug Policy Alliance, launched an effort to get state legislators and the governor to abolish the death penalty. A two-and-a-half minute video featuring a retired FBI agent, a former prosecutor, and the sister of a murder victim calling for an end to the death penalty began making the rounds on the Internet. The coalition claims that such prosecutions cost Californians more than $1 billion over five years.
With the state legislature currently deadlocked on how to close a $19 billion budget gap, focusing the public's attention on the cost of the death penalty may be a smart strategy. Typically the topic is debated on moral or other grounds.
Minsker said it's the first time the ACLU has made cost the primary focus of an effort to abolish the death penalty. Historically, the organization has drawn attention to wrongful convictions, systematic unfairness, and the questionable morality of state-sanctioned execution. In a sense, these earlier battles laid the groundwork for the current one. Mixed victories for both sides — reforms for the opponents and yet a still-legal death penalty for supporters — have resulted in a system that pleases neither, while sapping funds at a rate that should alarm anyone paying attention.
California's death penalty system is a failure by almost every measure. Due to a lack of qualified lawyers and a backlog in the courts, the average length of time from sentencing to execution is 25 years — more than anywhere else in the country. According to the California Commission on the Fair Administration of Justice — which was tasked to study California's death penalty and suggest reforms — in 2008 California spent more than $116 million housing death row inmates and passing them through a machine whose final mechanism is broken. Since 2006 there has been a moratorium on executions in California until the US Ninth Circuit Court of Appeals approves the state's execution procedure. Until that occurs, the state is likely to keep shelling out the extra $90,000 a year that the ACLU says it costs to house each of the state's 705 death row inmates.
"California's death penalty is dysfunctional," the commission's report concluded. And despite disagreement over why this is so and the feasibility of fixing it, most players in the death penalty system agree with that assessment.
The ACLU's solution is to replace the death penalty with life imprisonment without the possibility of parole. Death penalty opponents say permanent imprisonment is a solution that keeps society safe and satisfies the retributive urge of victims' families while also costing taxpayers drastically less — about $11.5 million per year, according to the commission's report.
But abolishing the death penalty appears to be a pipe dream for now. According to a recent Field Poll, 70 percent of Californians support the death penalty, although a small plurality — 42 to 41 percent — prefer permanent imprisonment to death when given the choice. This level of support for the death penalty isn't a record — that would be 83 percent, in 1986 — but it's a substantial increase from its ten-year low of 58 percent in 2002, according to a Los Angeles Times poll.
Nonetheless, Californians' strong endorsement for the death penalty should not necessarily be taken as approval of the way death sentences are currently sought or handed out, said Field Poll Director Mark DiCamillo. "That 70 percent majority — they're not all thinking about the death penalty the same way," he said. "Some people want to reserve it for the most extreme cases, the 9/11 hijackers and that kind of thing."
Californians also typically want child murderers, serial killers, and murderers who torture their victims to be sentenced to die. But our state's capital-sentencing laws currently make death a possible punishment for more than the small handful of moral aberrants prosecutors like to call "the worst of the worst." The "felony murder" law, for example, allows prosecutors to seek the death penalty in cases where the murder was committed in the commission of a felony. Any murder committed by "lying in wait" — as Luis Hernandez did — also qualifies its perpetrator for the death penalty.
To the ACLU, sympathy for "mere murderers" is not the issue. Even most opponents of the death penalty appear to agree that any mentally competent adult guilty of premeditated murder clearly deserves a long prison sentence — perhaps lifetime incarceration. Rather, the issue is that when the death penalty costs so much, takes so long, and provides at best an ambiguous benefit to society and victims' families, are the Luis Hernandezes out there really worth trying to execute?
The backdrop for this debate is a rare focus on the death penalty in two high-profile California political races. In the race for attorney general, Democratic nominee Kamala Harris is personally opposed to the death penalty, and has taken flack for refusing to seek death for a cop killer. In contrast, her opponent, Los Angeles District Attorney Steve Cooley, sent more murderers to death row last year than any other DA in the country. Meanwhile, the gubernatorial race pits Jerry Brown — the man who vetoed a death penalty law as governor in 1977 — against conservative candidate Meg Whitman, who supports the punishment.
The wide public support for capital punishment might appear to bode poorly for the success of the ACLU's campaign, but the project is only half of the organization's latest assault on the death penalty. Replacing capital punishment with permanent imprisonment at the statewide level would require a referendum, and Minsker says the ACLU has no plans to put a death penalty measure on the ballot anytime soon, although she would like to see such a measure on the ballot one day. Instead, the ACLU is focusing on counties, targeting the district attorneys who have ultimate say in seeking death — and the voters who put them into office. It's goal is to publicize the costs of the death penalty and pose a simple question: Is it worth it?
On July 22, a delegation of three board members from Alameda County's Paul Robeson Chapter of the ACLU paid a visit to Alameda County District Attorney Nancy O'Malley in her downtown office. Their goal was to make the first-time DA aware of what the county spent seeking death and to secure from her a commitment that she would stop. The group also wrote her a letter detailing its arguments. O'Malley listened attentively to the group's presentation, board member Mike Chase recalled, but would not accede to their request.
"She said she considers each case on its merits," Chase said. "I know she's a big supporter of victims' rights, but she stressed that there were a lot of murders where she could have charged death and decided not to."
The facts corroborate that statement. According to James Meehan, the capital litigation coordinator at the Alameda County District Attorney's Office, since 2009, when O'Malley took over for the previous district attorney, Tom Orloff, nineteen cases could have been charged as death. These are cases where the circumstances of a murder qualified its perpetrator for death — those circumstances being first-degree murder involving one of California's 22 special circumstances, such as murder for financial gain, killing a police officer, or the aforementioned "lying in wait," and "felony murder" statutes. Any case meeting these specifications can be tried as death, if the district attorney decides to do so.
Alameda County's decline in the number of death penalties sought is a new direction for a county the ACLU once called "the most deathprone county in Northern California." Between 2000 and 2007, Alameda County courts sentenced more people to death, fourteen, than those of any other county in Northern California. Now, O'Malley's office is more wary — which makes its decision to seek death for Luis Hernandez all the more notable.
It's not clear why Hernandez faces a possible penalty avoided by other murderers, including the perpetrator of a September 2007 stabbing death of the killer's 89-year-old aunt, and the two perpetrators of a May 2005 murder of a homeless man, followed by the rape of his girlfriend — to name just two recent examples. When asked about this in an interview, O'Malley said "the circumstances of the case play a huge factor," but added that she doesn't "discuss the specific details of a case."
So what will Hernandez' case cost Alameda County? Four main costs contribute to the expense of a trial: paying prosecutors, paying defense attorneys, paying the court, and paying the sheriffs who provide security. In death penalty trials, each one of these costs is magnified, primarily because they take longer due to jury selection and the fact that two trials are essentially required.
A study conducted in 1985 by a UC Davis law student found that jury selection in death penalty trials takes 5.3 times longer than other murder cases. Because every juror must indicate their willingness to impose the death penalty, it's not unusual for the process of jury selection to take two months. Moreover, once the trial has begun, the defendant essentially faces two distinct trials. In the first phase, a jury decides whether the defendant is guilty. Then, in the "penalty phase," it decides whether he or she should die. For this reason, the same study concluded, death penalty trials take an average of 3.5 times longer than other murder trials. This added time means more money spent paying for the court's operation, and more money spent paying the sheriffs who provide security.
The costs of prosecuting and defending a defendant also rise during a death penalty trial. The American Bar Association has stipulated that adequate defense in a murder trial requires a team of four — two lawyers, one investigator, and one "mitigation specialist" who finds reasons for why, during the penalty phase, the jury should vote against death. Because defendants are nearly always unable to pay for their defense, these costs are born by the county. Prosecutors must refute each of these claims, and they expend added time ensuring that they can do so. Finally, death penalty trials tend to involve more expert witnesses. For example, a recent trend of using early head trauma as a mitigating circumstance — demonstrating that the defendant had impaired impulse control — has made the cost of two head trauma experts — one for each side — an added expense in some death penalty trials.
The exact cost is notoriously difficult to pin down because none of the agencies involved track expenses specifically related to seeking death. However, due to a California law that allows counties to apply for reimbursement for the cost of prosecuting homicide trials, some public data can provide a window onto the process.
Public records requests made in 2006 provided the ACLU with data from 22 homicide trials in California spanning the fiscal years 1996-1997 through 2005-2006. Minsker and two cohorts combed through the data, discarding twelve cases in which they deemed the record-keeping so shoddy as to be worthless, and keeping ten — eight death penalty cases and two non-death penalty cases. Minsker's team subtracted the cost of the least expensive death penalty trial in the data set — the $1.8 million trial of Arturo Juarez Suarez in Placer County — from the more expensive of the two non-death trials — the $661,000 trial of Michael Franklin in Plumas County. So the smallest price difference provided their figure: $1.1 million, and the average price difference was even greater: $3.13 million for trials where death was sought versus $557,000 where it wasn't. Although the data upon which this study was based is clearly small and possibly unrepresentative — especially given the inclusion of the notoriously expensive Charles Ng trial, which cost at least $10.9 million, and probably more — Minsker said the ten cases selected offer the best accounting available. Only more thorough accounting by every county can improve the accuracy of the numbers.
Suffice it to say, these numbers are contested. "Your literature isn't accurate," Ventura District Attorney Mike Frawley told Minsker during a hearing held by the California Commission for the Fair Administration of Justice in 2008. He was referring to her study, "The Hidden Death Tax," published in 2008, from which the $1.1 million figure originates.
When asked last week to expand upon his criticism, Frawley said, "It's hogwash. They're making things up. Prosecutors, defense attorneys, judges, they're all on salary — how can a death penalty trial cost more?"
Minsker, when presented that question, responded, "Time is money. When someone on salary spends their time working on one project, one of two things happens: Other work doesn't get done, or other people must be hired to do the work."
"There is no internal personnel cost that is greater for a capital case than for a murder with special circumstance," O'Malley said. "The case takes the amount of time it takes. I tried a case last year and it took me three months. There are capital cases that have taken the same amount of time."
But the records obtained by the ACLU suggest that prosecution often costs hundreds of thousands of dollars more in death penalty trials. In the trial of Scott Peterson, one of the eight cases among the ACLU's data set, for example, records show that the prosecution logged more than 20,000 hours — so much time that the county told the state it needed funds to hire more prosecutors to cover work that wasn't being finished and that it had reduced focus on consumer fraud cases.
Similar results have been found in other states studying the added cost of seeking death. A 2003 performance audit sponsored by the Kansas Legislature found that death penalty trials cost 70 percent more on average. And a report by the Tennessee State Comptroller found a cost increase of 45 percent for seeking death.
"Every district attorney I have ever met has said that their office is short-staffed and that they need more people, especially these days," Minsker said. "If a DA's office can truly allocate thousands of hours of staff time to a death penalty case, without any impact on the workload of the office, then the office should lay people off and let the county use that money for more urgent needs."
Diane Bellas, the Alameda County public defender, agrees that death penalty cases cost more. "I think the ACLU's figure about the added cost of charging death is accurate," she said.
But whether or not the ACLU's accounting is accurate doesn't matter to some death penalty supporters. "I'm not sure there is any way to know the right answer, and in any case it is a distraction from the main issue," wrote University of California at Hastings Law Professor Rory Little. "Folks who oppose capital punishment don't oppose it based on cost; they feel it is immoral and barbaric. This is not a debate that will be decided on cost figures."
Little's point is that one arises over and over in conversations with death penalty supporters: If the death penalty is the right thing to do, its cost is almost beside the point. "No matter what the cost, I would support the death penalty," said Chris Breen, sergeant at arms for the San Francisco Police Officers Union.
Supporters of the death penalty assert that no matter how hard opponents try to make it about cost, morality will always take priority. "The death penalty is a philosophical choice, ultimately," said Steve Cooley's spokesman Kevin Spillane.
The ACLU, however, is trying to change that.
On a Monday night early in July in downtown Oakland, the Alameda County chapter of the ACLU hosted a three-part workshop led by Minsker. After an info session about suspension and expulsion in public schools, she stood to address the dozen or so gathered attendants munching Domino's pizza and sipping soda.
"We came together in 2008 when we realized that Alameda County was the most aggressive death-seeking county in Northern California," she said.
In terms of its historical support for the death penalty, Minsker said Alameda County is more similar to Riverside or San Bernardino than to its neighbor San Mateo across the bay, which hasn't had a death sentence this decade — although the evidence suggests that this has changed somewhat in the past three years.
"But we have the power to change the death penalty on a local level," Minsker said, "because there is one person who decides, who is fully empowered to seek or not seek death, and we can let District Attorney Nancy O'Malley know that we don't want it."
Minsker led the group through an exercise looking at common myths about the death penalty and reasons to replace it. Upon being informed that the death penalty was more expensive than life imprisonment, a man in front shot up his hand.
"That will be the winning argument," he said. "I know people who couldn't care less about the murderers on death row, but the cost, that will persuade them."
At the moment, the issue of cost seems pretty inextricable from the larger debate about the death penalty. But ardent opponents like Judy Kerr, who appears in the ACLU video, see the cost argument as crucial to breaking through the calcified opinions of its supporters. She has a rare stake in the matter; in 2003 her brother, Robert Kerr, was abducted from his Washington state apartment and murdered. Despite years of searching, his killer was never found. Kerr has channeled her grief into work as a spokesperson for California Crime Victims for Alternatives to the Death Penalty.
"I'm not here to say the death penalty is morally right or morally wrong," she said. "I'm just saying it's not working for me as a murder victim's family member. So many want this to be a moral issue, but people are so entrenched in their opinions that there's no way to go forward if you use that as an argument."
So Kerr now prefers to focus on the opportunity costs of pursuing the death penalty. She's frustrated that her brother's killer has never been caught. The dollars spent seeking death could have been used to hire homicide detectives who might have caught her brother's killer, or bolster the $50 million from the Victims' Compensation Fund that was slashed from the state budget in 2009. The Alameda County Coalition for Alternatives to the Death Penalty points out that the estimated $14.3 million spent seeking death in Alameda County between 2000 and 2009 could have funded the salaries of "31 additional experienced high school teachers per year; or 29 additional homicide investigators per year."
It doesn't seem right to ask the members of Rose Goulart's family whether they want the death penalty for Luis Hernandez or whether they would rather have those resources invested in additional services for crime victims, but the Alameda County District Attorney's Office has made the decision for them.
Hernandez' defense attorney, Deborah Levy, said that her client doesn't deserve the death penalty. "Every time I've seen him, his head has been down in his knees," she said. "I've been an attorney going on thirty years, and I have never seen a client more remorseful. He's devastated. He was on suicide watch at the jail. I don't think this should be a death penalty case. And I plan to go to Ms. O'Malley and the death committee asking, begging them, to please reconsider the death decision."
At that point, the decision would be back in O'Malley's hands. She will once again have to consider the death penalty's costs, its complications, and its consequences and ask: Is it worth it?
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