BY G E R A L D F. U E L M E N
Measuring the Cost of California's Death Penalty Law T
he final report on the administration of the death penalty in California was issued by the California Commission on the Fair Administration of Justice on July 1. As executive director of the commission, I served as principal draftsman for the report. After conducting three public hearings, calling 72 witnesses, and reading nearly everything published about California’s death penalty law for the past 30 years, the most formidable task the commission faced was measuring the cost of California’s death penalty law. The reason the task was formidable was because the data needed was not being collected, and our efforts to gather the information were stymied by California prosecutors. The commission retained Rand Corporation to undertake a major study of the costs, but Rand reported back that they were unable to enlist the cooperation of participating agencies, who were “wary of the kind of independent study we have proposed, for fear that it could end up swaying opinion in a direction contrary to their own convictions.” A similar wariness was reported by three law professors at Pepperdine University, who were asked to survey how California prosecutors made the decision to seek the death penalty in individual cases. They received responses from only 15 of California’s 58 counties, which our report called “a distressing picture of the willingness of those who tinker with the machinery of the death penalty to expose their decision-making process to the electorate.” 10 santa clara law fall 2008
Among the principal recommendations made by the commission (and opposed by the prosecutors who served on the commission) was the initiation of a mandatory reporting system to collect and analyze all the data needed “to determine the extent to which the race of the defendant, the race of the victim, geographic location, and other factors affect decisions to implement the death penalty, to accurately determine the costs, and to track the progress of potential death penalty cases.” Providing the public with reliable information about how the death penalty is being administered should not depend upon the discretion of those who are charged with its administration. Meanwhile, however, the commission was reporting to the California electorate that our death penalty law is dysfunctional, largely because it is underfunded. The principal message of our report was to be, “If we want a death penalty law as broad as California’s, we are going to have to pay for it.” To deliver that message without assessing how much we would have to pay for it would have been irresponsible. Thus, we were compelled to rely upon very rough, and very conservative, estimates of the system’s costs. We focused on the costs that were added to the processing of a homicide case by making it a death penalty case, as compared to a case in which a sentence of life imprisonment would be the result of a conviction.