S. E. Williams
Part 1 of this series looked in depth at a report which highlighted Riverside County along with nine other municipalities in the nation for their purported over-use of the death penalty.
The report by Fair Punishment Project (FPP), a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute titled, Too Broken To Fix, Part 1, An In-depth Look at America’s Outlier Death Penalty Counties, alleged counties that use the death penalty the most [including Riverside County] are “plagued by prosecutorial misconduct, bad lawyers and racial bias.”
Riverside County District Attorney Mike Hestrin recently sat down with The Voice/Black Voice News and provided his assessment of the report; his views on the death penalty; and the changes he has implemented in regards to this issue since he took office in January 2015. This is the second and final part of that interview and an end to the series.
Why are there so many death penalty cases in Riverside County
SW: There was data discussed in the report that spoke to the number of individuals given the death penalty in Riverside County that maybe should have been given different consideration in light of their mental capacity and or other factors. What are your thoughts on this?
MH: That is something that we do consider. I will acknowledge that mental illness is a problem for the criminal justice system and it is larger than just the death penalty. Our system is one that philosophically relies on individual responsibility and when you throw in mental illness and then you throw in insanity, which is a legal standard, it is difficult.
It certainly weighs in and I can tell you, in several of the cases I reversed—yes, the crime was heinous; but when the defense came in and their presentation was, “Look we are not going to try and justify this crime, it was horrible. But, this man is severely mentally ill. We would like you to consider that.” They made a presentation and they convinced us. They presented evidence and at the end of it we said, “We agree with the defense. We think that this was a horrible crime and if he wasn’t mentally ill we would probably seek the death penalty; but given the mental illness, we think that life without parole is enough.”
Now, would that same evaluation hold true for people with very low IQ’s? Sure it would. The law actually says if someone has an IQ below 70 they are ineligible for the death penalty and so that does factor in; but if someone has an IQ above 70, it would depend on the facts.
The death penalty and race
SW: A big issue in regards to the death penalty is the issue of race, particularly as it relates to the number of black and brown people in this country who are sentenced to death. What are your thoughts regarding why the death penalty is so disproportionately administered?
MH: You know, I’ve been asked this and it is a difficult question to answer. We certainly don’t consider race at all when we look at it, either way. It would be inappropriate to say race plays in any way in this. One year, I was asked was why so many Hispanics got the death penalty and I said when we make these decisions it is on a case by case basis. It is based on the crime and the person’s criminal history. It is really an individual consideration.
I think that if you look at the criminal justice system as a whole, there is more minority representation in our prisons than in our population; so I think it is something that we as a society need to think about and need to address. The answers are very complex because what you end up with when you really start digging, is that there is disproportionately more crime coming from certain communities and certain neighborhoods; but those issues in and of themselves don’t have anything to do with race but more with socioeconomics and poverty—those kinds of things that lead people down a wrong path.
SW: We know there has been a lot of analysis nationally that shows there is definitely some imbalance in the application of the laws as it relates to race. There is something off kilter there.
MH: I don’t know. I would be interested to see. I guess the only way to do that would be to say of the cases that are presented, do prosecutors choose the death penalty more often with [certain groups of] people? I don’t know what the answer to that is.
SW: There are studies that show there is a disproportionate application of the death penalty based on race.
MH: But, I would be curious to know if that is because of higher criminality or because of bias. That is the key question.
SW: But, couldn’t both be true and based on the same bias?
MH: Yes, it could be. It is very complicated. What I would say also is that these kind of studies should also look at the race of the victims because usually if the defendant [for example] is Hispanic, the victims are Hispanic.
SW: But, some of the data [in the report] says that if you look at a minority perpetrator when the victim is white the death penalty rate is higher than when the situation is reversed [the perpetrator is white and the victim is a person of color].
Death penalty initiatives on the November ballot
SW: There are two death penalty initiatives on the ballot this year. You are supporting the one that proposes accelerating the death penalty process.
MH: Proposition 66 is the death penalty ‘reform’ initiative. It has several facets. One is to expand the pool of eligible attorneys that can be defense attorneys on these cases. For example, the typical waiting period when someone is given the death penalty right now is five to seven years before they get an appellate lawyer assigned to them, that builds in delay. Right now in California there are 30 plus years between a death sentence determination and a possible execution date. So, I would say I am in favor of the reform. If we are going to have a death penalty, to have a death penalty that happens 30 to 35 years later kind of defeats the purpose.
I can understand that we’ve got to have extensive appeals to make sure that we get it right. But 30 years seems excessive to me. So if we are going to keep it, we need to find ways to shorten it. And I think we can without abridging the due process rights of the defendants; otherwise, we should get rid of it because what we end up with is a symbolic death penalty—that’s what we have now.
SW: One concern relative to your position is of course the Innocence Project (IP) where we have people whose lives are saved. In those cases, it was good we had such a long arc from sentence to execution. How does that weigh into your thinking?
MH: Of course, we never want to get it wrong. One of the other things I set-up is a Conviction Review Unit. What we have is a team of lawyers that are ready, willing and able to work with the Innocence Project—this is new since I took office, we never had one before. We will work with them (IP) and follow set protocols (that we both follow). It doesn’t mean that we are always going to agree. Sometimes, from a prosecutor’s prospective, the Innocence Project will claim someone has been exonerated when for example, a case gets reversed for whatever reason, i.e. for a technicality like the wrong law was applied or something like that and a prosecutor will not re-seek the death penalty because maybe its 29 years later and the witnesses have passed away or memories have faded. Oftentimes, those go down as exonerations. I’m not saying there haven’t been true exonerations; I just think they are pretty rare when you have instances where you have DNA that shows someone was the wrong person. That’s horrible when that happens and my heart goes out to them.
Of course, we don’t have a perfect system. I will say that I think that going forward you are going to see less of those because a lot of those exonerations occurred during the early days of DNA and our technology was not as good. It has gotten so much better, it’s incredible.
It doesn’t lessen the problem that we have. That is the very reason I started a Conviction Review Unit—as prosecutors we have got to be open to review. Even if we are passed all of the appeals, if someone comes and says, ‘Hey, we want to take another look at it.’ As long as we follow due process and follow the law we are open to that.
What the public should know
SW: Is there anything else you would like our readers to know?
MH: I think that sometimes because Riverside County has had a lot of death penalty cases, I think we sort of just get painted with a broad brush. I want your readers to know that as someone who has done death penalty cases, I understand the seriousness of this and I don’t take it lightly. We are not doing this willy-nilly or cavalierly or for any other reason than because we think the facts really call out for the death penalty; and so I think ‘measured’ is what I would like the public to know—we are careful with it.
Around the state, we prosecutors seek the death penalty in less than two percent of the murder trials. In Riverside County we are careful. That’s why we made these changes—like inviting the defense in and I think over time you will see that. You will see the effects of that.