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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.
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