»Death row or bike path?

Would you rather spend $250 million perpetuating the death penalty in California, or develop an urban center complete with high-speed ferry, pubs, natural wetlands, and spectacular views?
California chooses the former.

December 18, 2004

San Quentin Debate: Death Row vs. Bay Views
By DEAN E. MURPHY

SAN QUENTIN, Calif., Dec. 17 - So many people in California have been sentenced to death that the state is about to spend $220 million to build a bigger death row next to the current one on a spectacular bayside bluff here.

The state has long had the most populous death row in the country - it now has 641 condemned inmates - and the problem is that very few residents ever leave. Since the death penalty was reinstated in 1977, just 10 inmates have been put to death, and many spent 20 years or so in their cells before being executed by lethal injection. Four times as many have died from other causes like suicide and AIDS.

"The comment may sound a bit whimsical, but it's literally true that the leading cause of death on death row is old age," said Chief Justice Ronald M. George of the California Supreme Court, a former prosecutor of capital cases.

The decision to build the new prison was made by the State Legislature last year and the environmental reviews are nearing completion. With construction scheduled to begin next September, there is a stepped-up effort by opponents to block it.

But in an indication of how accustomed Californians have grown to their Potemkin-like death row, the debate over the new prison is centered on real estate prices and panoramic views, not the snail-paced approach to executions that has made a bigger prison necessary. Many elected officials here in Marin County, just north of San Francisco, do not oppose a new prison, they just insist that it be built far away on less valuable property, and for that matter would like to move the entire complex.

"The site's location on the bay and proximity to San Francisco along with access to nearby cultural and recreational opportunities provide a unique opportunity to leverage the physical characteristics and natural beauty of the property," states a developmental plan prepared by the county. The proposal, called the San Quentin Vision Plan, contemplates residential communities, bike paths, parks and a transportation center in place of death row and the rest of the prison and its 5,000 inmates.

Margot Bach, a spokeswoman for the State Department of Corrections, characterized the county's approach to San Quentin this way: "They want the real estate. That's the bottom line."

Even with a sharp drop in the number of people sentenced to death in recent years, the new prison is being designed to house 1,408 men, more than double the current death row population. (Women will continue to be housed at a prison in Chowchilla, in the Central Valley.) Most everyone involved expects that death row will get more populous in the coming years because so few of the condemned will be executed.

Franklin E. Zimring, a law professor at the University of California, Berkeley, and the author of a book on capital punishment, said a bigger prison at San Quentin would be an appropriate metaphor for a state that values law and order but seems to have little appetite for Texas-style justice. Texas leads the nation in executions, with 336 since 1976. Its death row now houses 444 inmates.

"What we are talking about looks like an inefficiency, but it may function to give us exactly what we want, which is a death penalty without executions," Professor Zimring said. "When people are ambivalent and not very honest about their priorities, it is very difficult to distinguish between ingenuity and inefficiency."

He said that what was most remarkable about capital punishment in California was that even with strong public support for it - a Field Poll in March showed 68 percent favored the death penalty for serious crimes - there was scant outrage over the courts' slow-paced application of it.

"There isn't a crisis here," said Professor Zimring, a death penalty foe. "Nobody's mad. The district attorneys get death sentences. That is their reward. They frame that. But they are not sitting there waiting for executions."

Many advocates of capital punishment, while unhappy with the situation, say they are resigned to it.

"Our Legislature is run by people who don't want the death penalty to work," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a Sacramento-based group that favors stepped-up executions. "They can't repeal it outright because the voters would hang them, but they can sabotage it. It is basically a matter of not pushing."

Chief Justice George said in a telephone interview from Sacramento that the slow pace of executions was caused by both the state and federal courts. The state courts have been cautious in making sure defendants receive the best legal representation possible, he said, while on the federal level, "an active federal bench looks at these cases more carefully than the federal bench in other parts of the country." Unlike the United States Court of Appeals for the Fifth Circuit, which handles cases from Texas, the appeals court that serves California, the Ninth Circuit, is well known for its liberal interpretation of federal law.

California is very slow in processing death penalty appeals, starting with the State Supreme Court itself, which under the state's Constitution is the first to review death sentence appeals. The waiting list for an appeals lawyer to be assigned by the court is about four years. Right now, 118 people on death row have not yet been assigned a lawyer. Six years ago the number reached 170.

"The virtues of the system also represent its vices because it does end up causing a lot of delay," Chief Justice George said. "We take great care to try and appoint competent counsel." He added, "I could take care of that backlog in two or three days if I were not following the very rigorous standards that California has established."

Professor J. Clark Kelso, director of the Capital Center for Government Law and Policy at the McGeorge School of Law at the University of the Pacific, was a consultant to the state in the late 1990's, when legislation was passed to speed up the appeals process, including paying higher hourly fees to lawyers. But even with those changes, Professor Kelso said it would take 15 or 20 years to catch up with the backlog of cases before the Supreme Court.

Some groups opposed to the death penalty objected to a new prison when the State Legislature was considering it, but the debate has been minimal since then. Some of the groups have even thrown their support behind the bigger prison because it promises to offer better facilities and would keep the inmates close to San Francisco, maintaining easy access to them by death row lawyers, volunteers and service organizations.

"This was an effort that kind of pulled the movement apart a little bit," said Lance Lindsey, executive director of Death Penalty Focus, a San Francisco group that opposes a new prison. "Of course a lot of us are for humane conditions, but conditions could be improved without expanding death row, and if we ended the death penalty, we wouldn't need all that money to expand death row."

The Prison Law Office, a nonprofit firm located outside the gates to the 152-year-old prison here, is among the groups that have supported a more modern death row. It has also resisted efforts to move it away from San Quentin, insisting that executions, when they do occur, need to be held in a big urban center so that they receive public scrutiny.

Steven Fama, a lawyer with the Prison Law Office, said the new prison was indicative of "a sort of stalemate that has become entrenched" in the state over capital punishment. While the overcrowded death row signals "a legal system that cannot accommodate the death judgments," Mr. Fama said there was widespread acceptance of the status quo and a feeling on both sides to make the best of an imperfect situation.

"Increasingly it just doesn't work the way it is now," he said of death row. "There are not enough cells for the disabled. The mental health care has to be given out in a makeshift way. They have had to be creative, building a chapel in an old shower area."

Assemblyman Joe Nation, a Democrat from Marin County, has been promised a meeting with aides to Gov. Arnold Schwarzenegger, who has expressed support for the new death row, to make a last-ditch pitch to sink the plan. Mr. Nation, who wants the new prison to be built somewhere less expensive than the Bay Area, said his presentation to the governor's staff would focus entirely on economic issues.

A state audit of the prison proposal last spring raised some financial questions about the plan, and Mr. Nation said it was a mistake for the state to "box itself into having a prison" at San Quentin for another 50 to 100 years by making such a big investment. He said state officials had estimated that the land there was worth as much as $750 million.

In the long run, opponents of the death penalty hope money concerns might also persuade Californians to give up on death row entirely. Though there have been few comprehensive analyses of the financial impact, the Indiana Criminal Law Study Commission in 2002 found that the additional legal and incarceration costs to that state for a death sentence versus one for life without the possibility of parole was about 30 percent.

"In a perfect world, we would have a serious discussion about the death penalty in California," Mr. Nation said.

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