“Many death row inmates oppose bid to halt executions”

November 3, 2012

The title of this post is the headline of this notable piece appearing in the Los Angeles Times yesterday. Here are excerpts:

Police and death row inmates agree on one thing, a law enforcement group told its members: They both oppose next week’s ballot measure to replace the death penalty with life without parole.

That statement, in a newsletter from the Los Angeles Police Protective League opposing Proposition 34, highlighted what some California criminal defense lawyers have been saying for months. Many death row inmates who are years away from execution would rather gamble on being executed than lose their state-paid lawyers, a preference that seems to be confirmed by a limited, informal survey of some on California’s death row.

“That is a significant sentiment, since the death penalty in California is mostly life without parole anyway,” said Don Specter, director of California’s Prison Law Office, who personally supports the initiative. “So the chances of them getting executed are not that high, and if Prop. 34 passes, their cases will be treated differently.”

California has not executed an inmate in six years and has put to death only 13 offenders since 1978. If Proposition 34 passes, death row inmates will be merged into the general prison population and have their sentences commuted to life without parole. “If you are thinking you are going to get your conviction overturned, you certainly have a better chance if you are sentenced to death rather than life because you are provided with more legal assistance,” said Kent Scheidegger, legal director of a law-and-order group fighting Proposition 34. “There is no question about that.”

If Proposition 34 passed, convicted murderers, like other felons, would still be entitled to appeal their convictions in state court with government-paid lawyers. But except in rare circumstances, they would not be given lawyers to investigate and file habeas corpus petitions, which raise evidence the trial court did not hear and which can be heard in federal court once state appeals are exhausted.

Proposition 34 has divided even some opponents of the death penalty. The Chicago-based Campaign to End the Death Penalty decided not to endorse the measure in part because the group opposes life without parole. The organization said it sent 220 queries about the measure to San Quentin’s death row and received about 50 replies. No more than four inmates favored the measure, the group said.

The death row survey was far from scientific, however, and the views of the condemned might depend on how far their appeals have progressed. About 14 inmates have exhausted their appeals and could be executed fairly quickly once executions resume in California, supporters of capital punishment say. “Death row inmates have a variety of views,” said Natasha Minsker, an American Civil Liberties Union policy director who is running the campaign to pass Proposition 34. “There are some who are very eager for it to pass, and some who don’t want it to pass.”…

Unlike capital inmates, the lifers must either file their own habeas petitions, persuade a judge to appoint a lawyer for them or find an advocate willing to take on their case. Governors have the power to commute life sentences as well as death sentences, though in some cases they must first obtain the approval of the California Supreme Court….

Scheidegger, the lawyer with the conservative Criminal Justice Legal Foundation, said he would not be surprised if death row lawyers felt stronger about abolishing the death penalty than their clients. “The lawyers tend to be obsessively focused on the death penalty, and the inmates want them to focus more on the conviction,” Scheidegger said. Although death penalty verdicts are rarely overturned, “people do cling to hopes of very unlikely events,” Scheidegger said. “That is why we have the lottery.”

This story — along with the oft-stated claim by some death penalty abolitionists that a sentence of LWOP is in some respects worse and harsher than death — leads me to wonder if some of the defendants sentenced to death in California might arguably have an ex post facto claim if Prop. 34 were to pass and seek to convert all their death sentences into LWOP sentences.

I am not sufficiently well-versed with ex post facto doctrines to know whether any California capital defendant might have any reasonable legal basis to complain about having his sentence converted to LWOP. But I do know that those on California’s death row become much less “special” and are sure to garner much less local, national and international support from most criminal justice reform advocates if they are just lifers rather than condemned killers. Thus I am not surprised by this story, though it makes me further wonder if some marginal voter who really wants to “stick it” to those on California’s death row might be actually inclined to vote for rather than against Prop 34 after reading this story.

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