Prosecutorial discretion, hidden costs, and the death penalty: the case of Los Angeles County.

• Author: Petersen, Nicholas

1. INTRODUCTION

   On August 27, 2004, the California Commission on the Fair Administration of Justice (CCFAJ) was established by California State Senate Resolution Number 44 to conduct a comprehensive review of California's criminal justice system. The commission was charged with three overarching tasks: (1) examine past failures of the state's criminal justice system, particularly wrongful convictions and executions; (2) review potential strategies for improving the criminal justice system, including adding safeguards against miscarriages of justice; and (3) propose legislative reforms that will improve fairness and justice in the state. (3)

   After four years of work, the CCFAJ published its final report in 2008. The bulk of the final report focused on issues facing the state's capital punishment system, which the commission characterized as "broken" in terms of its economic costs, the quality of justice it affords, and the toll it takes on other aspects of criminal justice administration in the state. (4) Specifically, the report identified a range of flaws in the system, explored alternatives to capital punishment, and proposed legislative reforms. (5) A key finding was that excessive delays and overbroad prosecutorial discretion plagued California's death penalty system. (6) Ultimately, though, the report indicated that due to serious gaps in data-collection efforts within the state, further research on the costs of capital punishment is necessary, particularly on pretrial and presentencing costs, in order to develop appropriate remedial policies. (7)

   This study attempts to answer the CCFAJ's call for further research on the problems associated with California's death penalty system at the trial level by examining the processing of homicide cases in one jurisdiction--Los Angeles County--from 1996 to 2008. We investigate the practices and patterns of prosecutorial discretion in homicide case processing in order to better understand the associated costs and consequences of the capital punishment system prior to final adjudication.

   In the next section, we provide a brief overview of the failures of California's "modern" death penalty system, (8) in part by describing in more detail the findings of the CCFAJ panel. To contextualize these failures, we begin with a brief sketch of the mechanics of California's homicide and capital sentencing laws and how they are typically applied in Los Angeles County, the site of our study. We follow with a review of the death penalty cost literature, highlighting the ways in which methodological limitations may restrict the utility of existing estimates in notable ways. Within this section, we specifically examine the role of prosecutorial discretion in seeking the death penalty and the potential economic and justice costs associated with the breadth of discretion afforded to prosecutors.

   Next, we provide an overview of our methodological framework used to estimate the time-costs of California's capital punishment system at the county level. Data on Los Angeles County homicide cases filed from 1996 to 2008 were used to formulate multiple regression models predicting: (1) the odds of a "death-notice" filing and (2) time-to-resolution. We conclude by addressing the public policy relevancy of our findings, as well as their implications for how criminal justice resources are allocated and for broader goals of justice. Here, we place the California case within the context of the penological justifications for capital punishment, which have, in recent years, been challenged by the accumulation of countervailing empirical evidence indicating that the death penalty is ineffective as either a deterrent or a method of incapacitation. (9)

   1. THE FAILURES OF CALIFORNIA'S DEATH PENALTY SYSTEM

      In California, criminal homicides are divided into two categories--manslaughter and murder. Manslaughter, which can take several different forms, is defined as the "unlawful killing of a human being without malice." (10) Murder is defined as "the unlawful killing of a human being, or a fetus, with malice aforethought." (11) Varying degrees of murder are distinguished based on the presence or absence of premeditation. First-degree murder consists of premeditated killings or killings in the course of a specified felony, and only first-degree murders that involve at least one of the twenty-two special circumstance allegations (which themselves have numerous subcategories of eligibility) enumerated in California Penal Code (PC) [section] 190.2 qualify for the death penalty. (12) Thus, a special circumstance allegation requires an accompanying charge of first-degree murder.

      The criminal justice processing of homicides begins when a killing is reported to the police. (13) Once a homicide is "cleared by arrest," it is eligible for prosecution. A homicide is considered to be "cleared by arrest or solved, for crime reporting purposes, when at least one person is arrested, charged with the commission of an offense, and turned over to a court for prosecution." (14) The district attorney's (DA) office then decides whether or not charges will be filed. The decision to file criminal charges shapes the course of the case in fundamental ways, setting in motion a series of criminal proceedings.

      In Los Angeles County, a deputy DA makes the initial charging decisions. (15) If the deputy DA charges the defendant(s) with first-degree murder and at least one special circumstance allegation, the case becomes potentially death eligible. (16)

      Upon completion of a preliminary hearing, the "special circumstance committee" recommends whether or not a death notice should be filed. The special circumstance committee chair reviews this recommendation and makes a final determination as to whether or not the death penalty will be sought.

      Figure 1 (17) Processing of Homicide Cases in Los Angeles County Homicide Reported Homicide is "cleared by arrest" Homicide is not solved or "cleared exceptionally" Charges Filed by Deputy DA Homicide Charges Filed First-degree murder charged ([dagger]) Second-degree murder or lesser offense charged * Special Circumstance Allegations Special circumstance(s) are filed ([double dagger]) No special circumstance(s) are filed * Preliminary Hearing Death notice is filed ([double dagger]) No death notice is filed * Case Disposition Trial ([double dagger]) Plea Bargain * Dismissal * Verdict at Guilt Trial Guilty of first-degree murder and at least one special circumstance [double dagger] Not guilty of first-degree murder or at least one special circumstance * Sentence at Penalty Trial Life without the possibility of parole (LWOP) Death sentence Legend: * non-death-eligible case; ([dagger]) potentially death-eligible case; ([double dagger]) death-eligible case. At any point during this process, the prosecution may offer the defense a plea agreement. If the defense agrees to a negotiated plea, the case results in a guilty plea to life without the possibility of parole (LWOP) or a lesser sentence.

      If no plea bargain is offered or an agreement is not reached, the case proceeds to trial. Capital trials are bifurcated, consisting of a guilt phase and a penalty phase. In order to advance to a penalty trial and qualify for the death penalty, the jury must find the defendant(s) guilty of both first-degree murder and at least one special circumstance allegation during the guilt phase. At the penalty trial, jurors hear case-specific aggravating and mitigating evidence before receiving instructions on the process that should be used to weigh that evidence when rendering a sentence of death or LWOP. (18)

      The current scheme for selecting death-eligible murders from the larger category of first-degree murders was originally authorized in 1978, when California voters passed the so-called Briggs Death Penalty Initiative Act. State senator John Briggs, who was one of the initiative's authors, touted the law as the "toughest" death penalty law in the nation. (19) It derived most of its "toughness" from its very broad definitions of the types of murder that would be eligible for capital prosecution. (20)

      While both state and federal appeals courts have held that California's death penalty statute is constitutional, its application since first being put into practice has been anything but ideal. Indeed, it has been called, by no less than a federal circuit court judge, a multibillion dollar "debacle" and "fraud" perpetrated on California taxpayers. (21) Since 1978, prosecutors in the state have sought thousands of death sentences, hundreds of capitally charged defendants have been sent to death row, and thirteen executions have been carried out. As of mid-year 2012, 725 condemned persons populated the state's overcrowded and decrepit death row, (22) yet executions remain on hold in the state as the latest lethal injection protocol has been deemed unconstitutional by a state court judge. (23) The average time from judgment to execution in California is seventeen years and growing longer annually; this wait is well above the national average. (24)

      At the core of many of California's problems with the death penalty is the breadth of the original sentencing statute, which has only grown broader since 1978. (25) In 1997, Shatz and Rivkind raised the question of whether California's statute adequately narrowed the pool of death-eligible cases, as was mandated in Furman v. Georgia. (26) Their analysis of case facts in a sample of California homicide convictions appealed from 1988 to 1992 indicated that seven out of every eight noncapital first-degree murder cases would factually qualify for the death penalty under California's statute, thereby rendering the state's death-eligibility criterion even more arbitrary and capricious than the one deemed unconstitutional prior to Furman. (27) They did a closer examination of all first- and second-degree murder convictions in three California counties, and found a similar...