State Prop 34 – why it’s still a NO to repeal death penalty - Morgan Hill Times: Jeff Nunes

State Prop 34 – why it’s still a NO to repeal death penalty

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Posted: Wednesday, October 17, 2012 12:02 pm

When I was an 8th grader at Britton Middle School, I joined the debate team.  Back then there was an annual competition against Murphy Middle School and that year we debated the death penalty.

In 27 years the arguments against it haven’t changed.  I remember as I was preparing for the debate, looking at statistics on deterrence and financial feasibility, my father coming into my room and offering me his own statistic – “100% of executed killers, will never kill again.”  

Undeniably true, but obviously a little tongue-in-cheek. But to this day my father’s somewhat jocular statistic focuses on one thing that the arguments against the death penalty consistently ignore – that for some crimes, there is no more appropriate punishment than death.  

Proposition 34 advocates will try to focus your attention on the fact that the death penalty is not a deterrent to murder, and therefore, we should abolish it.  Or that it’s too expensive compared to life in prison, and therefore, a waste of money.  Go ahead and accept these arguments as the truth.  My answer to them is this – so what?

This is not to be dismissive of problems with the system and there are plenty. But, at what point was it decided that the most important purpose of punishing heartless killers was to deter other people from doing so?  And, in a state where our dysfunctional legislature presides over never-ending budget deficits, borrowing money to fund $60 billion dollar high speed trains we can’t afford, not to mention the absurd public employee union pensions badly in need of reform, why is it that in administering justice – a clearly legitimate function of government that no one would deny – that this is where we should take our stand and eliminate the entire system in the name of frugality?  

They offer a false rubric upon which to measure the efficiency of the system while ignoring the actual purpose that it ultimately achieves – to administer the only punishment that fits the crime.  

Of course, there are legitimate problems with the system. The expense and time it takes to administer the death penalty cannot be denied.  A recent survey of 50 of the 220 condemned prisoners in California revealed that 47 of them were against Prop 34 because it would eliminate their ability to get taxpayer funded counsel to file their appeals. Any condemned man should be allowed a reasonable opportunity to appeal his case. But ridiculous challenges, like the recent Ohio prisoner who appealed that he was too fat to be put to death, have to be curbed.  

The development of DNA technology provides the state the ability to safeguard against an innocent man being put to death, and it should be used more regularly and as a prerequisite to confirm a death sentence. But, rather than try to address the problems of the system, Prop 34 sheepishly admits defeat and eliminates the system altogether. The victims and their families deserve more from us. They deserve a better solution.  

At its core Prop 34 is predicated on a belief that life in prison is a fit enough punishment for our worst killers. But, picture Prop 34 changing Richard Allen Davis’ death sentence into life without parole.  

Davis is the repugnant animal who kidnapped, raped, and strangled 12-year-old Polly Klaas, and then taunted her family in open court. He’s probably already learned to adapt and finds a way to get through each day, maybe even comes to look forward to and enjoy a few things – reading a book, perhaps getting to watch TV. And, don’t forget visits from his family, sometimes even getting physical contact with a loved one.  

Can you really tell Mr. Klaas, that because the death penalty is not a deterrent, or because it costs more, that this is justice for his daughter’s killer? I couldn’t.  Because every book he enjoys, or movie he gets to lose himself in, and every comforting touch he feels from a family visit, is one more than Polly and her family will ever get to enjoy. That is not justice.  

And we should demand better, because that is unacceptable.   

This is the first of an every-other week column from Jeff Nunes who is an attorney at Rusconi, Foster & Thomas, APC in Morgan Hill. He is a graduate of Live Oak High School and lives in Morgan Hill with his wife and two children.

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  • ryan hunter posted at 10:17 pm on Thu, Oct 18, 2012.

    ryan hunter Posts: 3

    I tend to agree with Barmankauflow. Of course condemned inmates are in favor of the death penalty! With an active death penalty, they're guaranteed a cell to themselves (no roommate) and state-funded attorneys who will fight tooth-and-nail for their cases until the very end. Speaking of the very end - and best of all - they'll never be executed in the first place, since the most common cause of death on death row is old age. Only 13 people have been executed in CA since 1976, and now we have 724 inmates "awaiting" execution. No act of legislative wizardry is going to speed this up.

    Criminal Justice Legal Foundation would have you believe that the solution isn't ending the death penalty, but greasing the cogs in the massive appeals machine. But, as long as there continue to be exonerees, appeals will never speed up. In fact, exonerations continue to validate the absurdly-long appeals process, as even the strongest advocates of the death penalty agree that "death is different" and won't tolerate error in the judicial process. Let's remember, even if the defendant's guilt is indisputable (a rare circumstance), mistakes can still occur which undermine an otherwise fair sentence of death: unqualified/inept representation in the penalty phase, police misconduct, jury discrimination, prosecutorial concealment of evidence of the defendant's mental state, inadequate investigation into the defendant's medical/mental health history, etc.. Rightly or wrongly, most Americans seem to agree that even a relatively small mistake can be enough to stop, or at least delay, an execution. Death really is different.

    To be fair, no state/country has ever abolished capital punishment by popular vote. But that doesn't mean its abolition is unwise. If popular vote were the only sensible means of enacting law, we'd practically have no need for a legislature and judiciary. We might even even do something silly like abolish parking tickets or pass a measure that everyone gets free pizza and beer on Tuesdays - that would certainly be popular! The death penalty is going to end in CA sooner or later, even if Prop. 34 doesn't pass. It's happening all around the world, and state after state in the US. So vote NO on Prop. 34 if you believe we should keep the death penalty, but don't kid yourself into thinking anyone's ever getting executed. I'm conservative, and I don't like seeing my tax dollars put towards any program that is - quite literally - useless. I'm voting YES.

  • Barmankauflow posted at 10:51 am on Thu, Oct 18, 2012.

    Barmankauflow Posts: 1

    It is extraordinarily ironic that opponents of Prop 34 do not understand why someone like Richard Allen Davis is also opposed to the initiative. Life for him in a mainline prison, even under the protections he requires, would be unmitigated h---. Life on death row at San Quentin is far easier and safer than anything awaiting these guys in a regular prison setting, and they know it.

    If you really want to inflict punishment on Richard Allen Davis, obolish the death penalty.

  • Jnunes posted at 9:19 am on Thu, Oct 18, 2012.

    Jnunes Posts: 2

    Mr. Hunter, I respect your opinion on this matter, we just disagree. To clarify a point, I am fully aware that there are 724 condemned prisoners on death row, but the survey I cited in the article only asked for opinions from 220 of them. I should have made that clearer in the article. Here is a link to the article. Thanks.

  • hypocrisyhater posted at 9:10 am on Thu, Oct 18, 2012.

    hypocrisyhater Posts: 234

    Thanks for sharing your viewpoint Ryan.

    But the simple truth is, some people just deserve it.

  • larryjohnson posted at 7:00 am on Thu, Oct 18, 2012.

    larryjohnson Posts: 86

    Unfortunately it doesn't matter whether or not the Death Penalty is an effective punishment.

    What matters is that the Liberals in this state have turned the Death Penalty into one large money pit that is no longer capable of doing what it's intended to do. In other words, the same thing that Liberals have done for sustainable energy (Solyndra) and everything that the Liberals touch.

    So the question is "If California keeps the Death Penalty, will California restore it to the point that more murderers are executed than die from old age??" I don't think so.

    This is the state that admits we are on the edge of bankruptcy, but then spends $100 Billion on a new bullet train to keep union members fully employed. A state that keeps raising taxes on American citizens so we can provide generous benefits to millions of illegal aliens that continue to pour across the border. A state that still thinks that Barack Hussein Obama is a good President.

  • ryan hunter posted at 10:35 pm on Wed, Oct 17, 2012.

    ryan hunter Posts: 3

    I'll concede that the death penalty could save the lives of future victims. Sure, but that's vacuously true. It could just as well *not* save lives of future victims, since the vast majority of death row prisoners never kill again. By executing those prisoners we end up with a net of negative 1 lives saved - we've cut off our nose to spite our face.

  • ryan hunter posted at 9:51 pm on Wed, Oct 17, 2012.

    ryan hunter Posts: 3

    In a civilized society, justice does not mean revenge. We live in America, not North Korea, Afghanistan, nor 18th century France. Sadly, nothing will provide sufficient relief for the victims of these terrible crimes, except perhaps the miracle of bringing their loved one back to life. Killing another life does nothing to balance the scales of justice, it merely tips it further.

    I stand with murder victims' families against the death penalty ( because state-sanctioned murder is murder too. Renny Cushing, whose father was shot to death says, "If we let those who kill turn us into killers, then evil triumphs....If I changed my view on the death penalty, it would only give more power to the killer...not only would [he] take away my father, but [he] would take away my values."

    On a separate note, there are 724 condemned prisoners, not 220.

  • dudleysharp posted at 9:03 pm on Wed, Oct 17, 2012.

    dudleysharp Posts: 4

    Sadly, this site doesn't accept longer posts.

  • dudleysharp posted at 8:56 pm on Wed, Oct 17, 2012.

    dudleysharp Posts: 4

    The Death Penalty: Justice & Saving More Innocents
    Dudley Sharp

    The death penalty has a foundation in justice and it spares more innocent lives.

    Anti death penalty arguments are either false or the pro death penalty arguments are stronger.

    The majority populations of all countries may support the death penalty for some crimes (1).

    Why? Justice.


    Of all endeavors that put innocents at risk, is there one with a better record of sparing innocent lives than the US death penalty? Unlikely.

    1) The Death Penalty: Saving More Innocent Lives

    2) Innocents More At Risk Without Death Penalty


    1) Saint (& Pope) Pius V: "The just use of (executions), far from involving the crime of murder, is an act of paramount obedience to this (Fifth) Commandment which prohibits murder." "The Roman Catechism of the Council of Trent" (1566).

    2) Pope Pius XII; "When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live." 9/14/52.

    3) John Murray: "Nothing shows the moral bankruptcy of a people or of a generation more than disregard for the sanctity of human life."

    "... it is this same atrophy of moral fiber that appears in the plea for the abolition of the death penalty."

    "It is the sanctity of life that validates the death penalty for the crime of murder. It is the sense of this sanctity that constrains the demand for the infliction of this penalty. The deeper our regard for life the firmer will be our hold upon the penal sanction which the violation of that sanctity merit." (Page 122 of Principles of Conduct).

    4) Immanuel Kant: "If an offender has committed murder, he must die. In this case, no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there is no equality of crime and retribution unless the perpetrator is judicially put to death.".

    "A society that is not willing to demand a life of somebody who has taken somebody else's life is simply immoral."

    5) Billy Graham: "God will not tolerate sin. He condemns it and demands payment for it. God could not remain a righteous God and compromise with sin. His holiness and His justice demand the death penalty." ( "The Power of the Cross," published in the Apr. 2007 issue of Decision magazine ).

    6) Theodore Roosevelt: "It was really heartrending to have to see the kinfolk and friends of murderers who were condemned to death, and among the very rare occasions when anything governmental or official caused me to lose sleep were times when I had to listen to some poor mother making a plea for a criminal so wicked, so utterly brutal and depraved, that it would have been a crime on my part to remit his punishment.".

    7) Jean-Jacques Rousseau: " In such circumstances, the State and he cannot both be saved: one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgments are proofs that he has broken the Social Contract, and so is no longer a member of the State." (The Social Contract).

    8) John Locke: "A criminal who, having renounced reason... hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or tyger, one of those wild savage beasts with whom men can have no society nor security." And upon this is grounded the great law of Nature, "Whoso sheddeth man's blood, by man shall his blood be shed." Second Treatise of Civil Government.

    "Moral/ethical Death Penalty Support: Christian and secular Scholars"

    "The Death Penalty: Neither Hatred nor Revenge"

    "The Death Penalty: Not a Human Rights Violation"

    "Killing Equals Killing: The Amoral Confusion of Death Penalty Opponents"

    1) US Death Penalty Support at 80%; World Support Remains High

    Much more, upon request.

  • dudleysharp posted at 8:52 pm on Wed, Oct 17, 2012.

    dudleysharp Posts: 4


    I agree with you and your dad.

    But, wouldn't it be nice if it was a deterrent, as well?

    Of course the death penalty deters.

    All prospects of a negative outcome deter some. It is a truism. The death penalty, the most severe of criminal sanctions, is the least likely of all criminal sanctions to violate that truism.

    1) 28 recent studies finding for deterrence, Criminal Justice Legal Foundation

    2) "Deterrence & the Death Penalty: A Reply to Radelet and Lacock"

    3) "Death Penalty, Deterrence & Murder Rates: Let's be clear"

    4) This is out of date, but corrects a number of the misconceptions about deterrence."Death Penalty and Deterrence"

    5) "The Death Penalty: More Protection for Innocents"

  • dudleysharp posted at 8:50 pm on Wed, Oct 17, 2012.

    dudleysharp Posts: 4


    You may also want to consider that the pro Prop 34 folks are simply full of it.

    California: Life Without Parole More Costly than the Death Penalty? Might Be
    Dudley Sharp

    The Paula Mitchell/Judge Arthur L. Alarcón study

    Mitchell/Alarcón have made their study highly suspect by their refusal to share their database, which we can presume is unreliable, otherwise they would be happy to share it.

    Other reviews have found important problems with their study (1)

    BUT . . .

    If the Paula Mitchell/Judge Arthur L. Alarcón study is accurate (which no one can fact check) and the death penalty has cost California $4 billion since 1977 and there have been 2700 death penalty trials, that would mean, on average, the cases cost about $1.5 million/case, for pre trial, trial, appeals, incarceration and executions.

    Approximately 900 have been sent to death row and about 2/3 of all death penalty trials end with a sentence less than death, therefore 2700 death penalty trials.

    Credit death penalty

    If we calculated the cost savings by having the death penalty, of a plea bargain to LWOP, only possible with the death penalty, such would be the cost of trial and appeals of a LWOP case, deducted as a cost credit to the death penalty side of the ledger and would result in a lesser net cost per death penalty case. I am not sure what that figure would be.

    This would reduce the average cost of a death penalty case by an unknown amount.

    Increasing costs - death penalty

    The 2/3 of cases that do not receive the death penalty, in a death penalty trial, will still have appeals, but, most likely, not as extensive as cases receiving the death penalty. If these cases were given LWOP, then the appeals, incarceration and geriatric care costs will transferred to the LWOP side of the ledger.

    Necessarily, that would increase the average cost of the remaining 900 cases that were sentenced to death. I am not sure what that figure would be, as an added cost per death penalty case.

    This would increase the average cost of a death penalty case by an unknown amount.

    Including those two cost consideration, the average death penalty case might be around $2 million
    (adding $600,000 in additional appellate costs and subtracting $100,000 for the LWOP plea, adding, on average, $500,000/case for the 900 cases that received the death penalty.)

    LWOP costs

    It seems that the incarceration costs will be considerably higher than pro Prop 34 folks have told us, with costs spiraling, hugely, with geriatric care.

    It appears, likely, based upon my review (2), that death row prisoners who would become LWOP inmates, if Prop 34 passes, will cost around $75,000/yr/inmate (1), on average, or about $2,250,000 total/inmate, for 30 years, a figure which does not include the costs of pre trial, trial, appeals or geriatric care.

    Including those additional four cost considerations, the average LWOP case might be around $2.5 million

    As Prop 34 is stating that LWOP will replace the death penalty, there is no credit for plea bargains, because the Prop 34 folks are anticipating that those previously subject to the death penalty will receive LWOP.

    Obviously, anything short of LWOP will negate many of claims from the pro Prop 34 folks.

    It is very hard to see where any cost savings might be coming from if Ca ends the death penalty.

    1) The Errors of Alarcon & Mitchell, Part 2 -- The Plea Bargain Effect (with Links to Part 1 and the Intro) 2.html

    2) Death Penalty Costs: California

  • hypocrisyhater posted at 2:58 pm on Wed, Oct 17, 2012.

    hypocrisyhater Posts: 234

    Thank God one of the two Jeffs started writing op-eds.

    His viewpoint is a refreshing change from all of the hippies you normally print.

  • derfoliveri posted at 2:22 pm on Wed, Oct 17, 2012.

    derfoliveri Posts: 6

    Jeff Nunes learned all he needs to know about the infallibility of DNA evidence from CSI. Television shows should totally dictate policy.