Is Southern California the New Deep South?

Los Angeles County has sentenced more people to death than five Southern states combined.

The San Bernardino County Court House. San Bernardino is among the top 15 counties that produce the highest number of death sentences nationally.

Photo by Amerique/Wikimedia Commons

“Texas is called the Death Belt. Harris County is the buckle.” That’s how one judge described the death penalty in the Lone Star State 15 years ago. In those days, Texas produced 40 death sentences per year, and no one blinked if Harris County accounted for 10 of them. These days, Texas is at the epicenter of a different trend: The Deep South has witnessed a sharp, sustained, and unmistakable drop in death verdicts.  So far this year (as of Sept. 6, 2015) Texas has not had a single new death sentence. Neither has Georgia, North Carolina, South Carolina, or Virginia.

While the Deep South has moved away from capital punishment, Riverside County, California, has become the buckle of a new Death Belt. It produced seven new death sentences in the first half of this year. That’s more than California’s other 57 counties combined, more than any other state, and more than the whole Deep South combined. An hour’s drive from Los Angeles, with a population of 2.3 million (6 percent of California’s population), Riverside has produced more death sentences since 2010 than any other county in America except one—Los Angeles County, which is four times its size.

Los Angeles County voters supported Proposition 34, a measure that would have replaced California’s death penalty with a sentence of life without parole, 53.7 percent to 46.3 percent. Nonetheless, Los Angeles County has sentenced 33 people to death row since 2010, which is more than any other county in America. Sure, Los Angeles County has 10 million residents, but if you combine the death sentences of five Southern states with an aggregate population of 40 million people—Georgia, North Carolina, South Carolina, Tennessee, and Virginia—Los Angeles still has more death sentences over the same time period.

In addition to Riverside and Los Angeles, three other Southern California counties—Kern, Orange, and San Bernardino—are among the top 15 counties that produce the highest number of death sentences nationally out of 3,144 counties nationwide. With an aggregate population of 6 million people, these three California counties have produced more death sentences since 2010 than three Texas counties—Harris (Houston), Dallas, and Bexar (San Antonio)—which have an aggregate population of 8.5 million.

The irony is that California is very unlikely to execute any of these people. On Jan. 17, 2006, Clarence Ray Allen, a 76-year-old man who spent 23 years on the state’s death row, became the 13th and last person executed in California. Last year, in an order declaring the California death penalty unconstitutional, Judge Cormac Carney, whom President George W. Bush appointed to the federal bench, wrote:

In fact, just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years. Such an outcome is obviously impossible for many reasons, not the least of which is that as a result of extraordinary delay in California’s system, only 17 inmates currently on Death Row have even completed the post-conviction review process and are awaiting their execution. For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose.

Yet last week California Deputy Solicitor General Michael Mongan urged a federal appellate court to reverse Carney’s decision, arguing, in part, that the long delays in the system are a sign that California has a careful and deliberate death penalty scheme. Whatever makes taxpayers sleep at night—but the bottom line is that although California averages 2,000 homicides per year, it counts its executions not in weeks or months, but in years or decades.

Much like a Hollywood movie script, then, new death sentences in California are just for show. And it is an expensive one: The death penalty costs California about $184 million per year, well above what it would cost to incarcerate these prisoners for the rest of their natural lives. Gil Garcetti, former Los Angeles district attorney, recently explained the opportunity cost of pursuing these purely symbolic sentences: “Spending our tax dollars on actually preventing crimes, instead of pursuing death sentences after they’ve already been committed, will assure us we will have fewer victims.” Alternately, money currently used on the death penalty could be redirected to investigate unsolved murders. An astonishing 4,862 homicides, all of them occurring in Los Angeles County between 2000 and 2010, remain unsolved. This translates into a 54 percent solve rate, which is an embarrassing figure that falls 9 percent below the national average.

The greatest costs do not come attached to a dollar sign. In 2011, Bethany Webb’s sister, Laura, was murdered in Orange County. She openly opposed death penalty proceedings and said that it’s “torturous to have to keep going to court” and “there’s no end in sight.” Webb said of her sister’s killer, “He’s going to die of old age in jail. We know that.” Aba Gayle, whose daughter was murdered in 1980, felt ignored when, after a court overturned the death sentenced imposed upon the person who murdered her daughter, prosecutors rejected her request that the case be settled with a sentence of life without the possibility of parole: “Over and over,” she said, “I’ve been told that what we feel and what we think is not important.” Now three decades after the crime, Gayle questions what the point is of executing a person for “something they did 30 years ago.”

Unwisely marshaling limited public resources and purposelessly traumatizing many victims’ family members in support of a punishment that most prosecutors have chosen to forego are reason enough to question the wisdom of California prosecutors who continue to seek the death penalty with reckless abandon. Unfortunately, most of these counties have more in common than overzealous use of the death penalty.

Earlier this year, a federal appellate court reversed the murder conviction of a Riverside County man, Johnny Baca, due to flagrant prosecutorial misconduct. One former Riverside prosecutor, Robert Spira, testified that a jailhouse snitch had not received any incentive to testify against Baca. It turns out he was lying. The prosecutor doing the questioning, Paul Vinegrad, apparently knew that Spira was lying and solicited the informant’s testimony anyway.

A federal magistrate judge, Patrick Walsh, said that the “Riverside County District Attorney’s Office turned a blind eye to fundamental principles of justice to obtain a conviction.” During oral argument in the federal 9th U.S. Circuit Court of Appeals, Chief Judge Alex Kozinski agreed. He asked the government’s lawyer to ask Kamala Harris, the attorney general of California, “if she really wants to stick by a prosecution that was obtained by lying prosecutors.” He also asked aloud why the former prosecutors were not being prosecuted for perjury. Mike Hestrin, who personally obtained seven death sentences before he took the helm of the Riverside County District Attorney’s Office this year, refused to admit that either prosecutor intentionally committed misconduct. He also promised to retry Baca, a man who already has spent 20 years in prison.

According to the National Registry of Exonerations, Kern County has wrongfully convicted 24 men and women. Of those 24 cases, 22 involved misconduct by a government official. Just this year, a state appellate court found that a prosecutor in Kern County, Robert Murray, “clearly engaged in egregious misconduct that prejudiced the defendant’s constitutional right to counsel” when he “deliberately altered an interrogation transcript to include a confession that could be used to justify charges that carry a life sentence.” Back in 2008, the same prosecutor appears to have hid unfavorable blood evidence results produced by a state crime lab and lied about having asked a state lab technician to preserve the (subsequently destroyed) evidence.

The person who killed Bethany Webb’s sister pleaded guilty. However, before the cased moved into the penalty phase, in which the jury would be asked to choose between the death penalty and life without parole, the trial judge recused the entire Orange County District Attorney’s Office because of the extensive misconduct that the office had committed in the case. “The District Attorney cannot or will not in this case comply with the discovery orders of this court and the related constitutional and statutory mandates that guarantee this defendant’s right to due process and a fair trial,” the judge wrote. Among other misuses of discretion evident in the case, Orange County prosecutor Erik S. Petersen failed to turn over a host of material about what appears to be an illegal jailhouse informant program that the county used to secure testimony against defendants. This is not the DA office’s first brush with misconduct. As Radley Balko reports, “Between 1997 and 2009, prosecutors in Orange County, California, were cited for misconduct 58 times.”

In 2010, the 9th Circuit reversed the murder conviction of a Los Angeles man, Bobby Joe Maxwell, because the prosecution failed to disclose that its star witness, a jailhouse informant named Sidney Storch, received a lighter sentence in exchange for his testimony against Maxwell. Storch, who had been discharged from the military for being “a habitual liar,” was also in hot water for “impersonating a Central Intelligence Agency (‘CIA’) officer and Howard Johnson, the son of the well-known Howard Johnson hotel chain.” A detective once testified that he “would not trust anything Sidney Storch said unless you could corroborate the information with some source.” Nonetheless, the Los Angeles District Attorney’s Office used Storch as a jailhouse informant in multiple cases up until he was “caught fabricating lies as he testified for the prosecution” in a different case.

This summer, Justice Stephen Breyer penned a dissent, joined by Justice Ruth Bader Ginsburg, in Glossip v. Gross in which the duo urged the Supreme Court to revisit the broad question of whether the death penalty remains consistent with evolving standards of decency. One of the linchpins of their argument was that the country has abandoned the death penalty in practice, and “the number of active death penalty counties is small and getting smaller.” Since 2010, “only 15 counties imposed five or more death sentences.” If one-third of the active death sentencing counties are in Southern California—places where those death sentences do not mean anything, and prosecutors don’t seem to play by the rules—then it is truly time to end the death penalty charade once and for all.