S. E. Williams
“To receive a death sentence remains as random as being ‘struck by lightning.’ How then, can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?” –U. S. Supreme Court Justice Stephen Breyer
It has been widely reported that the death penalty is dying in America and based on the declining number of cases where the death penalty has been applied in recent years, that certainly appears to be true.
A recent and more detailed examination of facts, however, has revealed there are a few selected municipalities across the nation where the arc of justice in relation to capital punishment appears to be bending in the opposite direction— Riverside County is one that stands out among all others.
Over the next two weeks The Voice will examine the death penalty issue in regards to its use and reported over-use in Riverside County. This week’s article explores how the application of death penalty sentences has been diagnosed and assessed for national consumption. Next week, The Voice will present a perspective on the application of capital punishment by Riverside County District Attorney Mike Hestrin. It will include his view of this report’s assertion that there is a history of aggressive and questionable application of the death penalty in Riverside County.
In 2015, Riverside led the nation in its application of the death penalty–It handed down eight (16 percent) of the 49 death penalty convictions nationally; up from four percent of the national total in 2014. The sharp increase is largely attributed to the steady decline in the application of the death penalty in most of the country.
In the past twelve months, Riverside has garnered increased national attention for its pursuit of capital punishment. Just days ago, the Fair Punishment Project (FPP), a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute released a report titled, Too Broken To Fix, Part 1, An In-depth Look at America’s Outlier Death Penalty Counties. The report alleged, “counties that use death penalty the most are plagued by prosecutorial misconduct, bad lawyers and racial bias.”
Nationally in 2015, juries rendered death sentences 49 times, the fewest number since the death penalty was reinstated in 1976. This marked a 50 percent decline since 2009 (118 death sentences) and a 600 percent reduction from 1996 (315 death sentences).
Today in America, the death penalty has remained legal in only 31 states. In 2015, less than half of those states imposed any death sentences at all. The nation’s movement away for the death penalty is even more obvious when you examine its application at the local level.
There are 3,143 county or county equivalents in the United States. Between 2010 and 2015, only 16 of those counties (less than one half of one percent) imposed five or more death sentences. Nine of the counties are in the southern states of Alabama, Florida, Louisiana and Texas; there was one county each in Arizona and Nevada; and the remaining are located in California. In addition to Riverside the other California counties included: San Bernardino, Orange, Los Angeles and Kern.
Riverside was the only California county examined in this report and the raw numbers were both striking and revelatory. Although California’s executions have stalled, Riverside County now leads the nation in the production of death sentences—last year it sentenced more people to death than any other “state” in the nation other than Florida and California itself. In addition, Riverside’s rate of death sentences per 100 homicides was fully nine times the rate of the rest of the state.
In assessing Riverside and the other counties included in this report, researchers sought to identify a commonalty between them in their effort to provide an explanation as to why this small percentage of jurisdictions across the country are continuing to pursue death sentences even as the rest of the country has trended in the opposite direction. Their conclusions were three-fold, beginning with what they identified as overzealous prosecutors; followed by allegations of inadequate defense; and finally, all rooted in an environment of racial bias and exclusion.
Procedurally, the District Attorney decides which cases will be tried as death penalty cases. Each year, there are nearly 14,000 homicides in the United States and yet in 2015, jurors/ judges applied death sentences only 49 times. Since the death penalty was reinstated in 1976, according to the FPP, this low number highlights the fact that only “. . . a tiny handful of prosecutors account for a wildly disproportionate number of death sentences.”
Former Riverside District Attorneys Rod Pacheco and Paul Zellerbach pursued the death penalty with assertiveness. When District Attorney Mike Hestrin took office in January 2015, he inherited 22 death penalty cases from Zellerbach; Hestrin, however, determined to change course and not seek the death penalty in six of them. That same year, Hestrin was faced with determining the prosecutorial direction in eleven new capital cases—he only sought the death penalty in four. In an interview with The Voice next week, Hestrin will discuss in detail his approach to the application of the death penalty since taking office last January.
The FPP report also raised the issue of prosecutorial misconduct. Prosecutorial misconduct was reportedly alleged in 84 percent of the Riverside cases reviewed where a direct appeal decision had been issued between 2006 and 2015; however, the California Supreme Court noted an inappropriate comment by prosecutors in only 31 cases and did not find misconduct in any of them. Despite this fact, “Federal courts have reversed 62 percent of the sentences affirmed by the California court—the highest rate nationally.” Those opinions have yet to be reviewed by the researchers for any findings of misconduct by the federal courts.
Another area of significance highlighted in the report was the issue of inadequate defense. The report alleged court-appointed defense attorneys are paid based on whether a murder case is charged as a capital case and whether it goes to trial. The report alleged Riverside County’s pay structure for such attorneys is rendered in such a way that when a decision is made not to seek the death penalty before the trial starts, the defense attorney’s fee is reduced by half. Fees are also reduced if a plea deal is reached or the capital charges are reduced. It is believed this approach to compensation may result in attorneys not always acting in the best interest of their clients.
Also according to researchers, the amount of time court appointed attorneys in Riverside County devoted to mitigation in order to negotiate for a plea bargain or reduction in charges in death penalty cases was paltry. “Half of the Riverside County death sentences reviewed on direct appeal between 2006 and 2015 involved the equivalent of one full day’s worth or less of mitigation evidence, and two-thirds of the cases involved two days or less. On average, only seven hours of mitigation evidence was presented during trial.” In addition, in 12 percent of cases, there was zero hours devoted to mitigation.
It might be important to note that in 2015, only one of the eight people sentenced to death in Riverside was represented by the public defender’s office. The remaining seven were represented by court appointed private attorneys compensated according to this fee system.
Another major area of concern in regards to death penalty defendant representation identified in the report was the limited number of lawyers who account for a disproportionate number of death sentences in Riverside; and who also appeared to offer very little relative to mitigation on the cases they handled. The county appears to engage the same attorneys again and again. For example, there was one court appointed lawyer who sent six clients to death row in recent years. In another instance, a single court appointed attorney has defended a total of fifteen clients all of whom were sent to death row—including five during the period of this report.
The Voice attempted to clarify the county’s procedures for the selection of court appointed private attorneys and the associated payment guidelines; however, the reporter was unable to confirm this information previous to publication. The reporter will continue to pursue Riverside County’s perspective on this issue.
Finally, the FPP report identified racial bias and exclusion as the other major commonality among the counties reviewed in the report.
Riverside’s history of overt racial bias and exclusion is documented. Certainly, Riverside it is not the south where some of the counties assessed in this report reside; however, for those who know the sting of racial bias there is no differentiation in its impact regardless of where geographically it is inflicted.
African Americans make up a mere seven percent of the population in Riverside County but were 24 percent of those sentenced to death during the period of this report. In a broader sense, 76 percent of those convicted and sentenced to death in Riverside between 2010 and 2015 were people of color.
In closing this week’s article, it would be remiss not to mention that according to tracking by the FPP, of the Riverside death penalty cases decided by the California Supreme Court on appeal since 2006, approximately 55 percent of the cases involved evidence of severe function impairment such as intellectual impairment, brain damage, severe mental illness and/or age.
Next week The Voice will present an in-depth interview regarding the death penalty and the FPP report with Riverside County District Attorney Mike Hestrin.