Can California Save its Death Sentences? Will Californians Save the Expense?

Cardozo Law Review, Vol. 33, 2012

Chapman University Law Research Paper No. 11-26

66 Pages Posted: 24 Jul 2011 Last revised: 1 Jul 2012

See all articles by Scott Howe

Scott Howe

Chapman University, The Dale E. Fowler School of Law

Date Written: July 23, 2011


Imposing a death sentence in California has become symbolism with a staggering price. From 1973 through 2009, California sentenced 927 persons to death but executed only thirteen. No executions have occurred since 2006. There are presently 714 persons on death row. Average delays between death sentences and executions are among the worst in the nation and in some cases will reach 30 years. One recent study estimated that taxpayers have spent more than $4,000,000,000 on the California death penalty since 1978 and more than $184,000,000 in 2009 alone.

This Article addresses two major questions about the future of California’s death penalty. First, it asks whether California can save its pending death sentences and answers negatively. I conclude that the courts are unlikely in the near future to declare most of the death sentences unconstitutional due to delay. Yet, I also conclude that the state is not able to institute reforms that can soon achieve a large and regular flow of executions, which means that a large portion of the pending sentences will not be carried out.

The Article then asks whether Californians will soon take steps to avoid the expense of trying to save all of the death sentences. I discuss the possibilities and the doubts. Governor Brown has stated that he will not grant blanket commutations. The options for the legislature are also limited, because the state constitution requires voter approval to amend the death-penalty statutes. Because of the growing recognition that the current death-penalty system is not sensible, California may be headed toward a public referendum in which the voters will decide. I present the competing perspectives on the causes of the current malfunction and the solutions that will vie for public acceptance. Putting aside the view that the death penalty is inherently wrong, I conclude that there will be three non-abolitionist accounts plus one that favors abolition. I explain why they are all flawed. Because the California death-penalty system is unavoidably hemmed in by economic, cultural and legal constraints that create difficult trade-offs, voters can only try to find the lesser evil among bad options. I believe that abolition is the lesser evil in California, but the lesser-evil argument is disquieting in that it calls for real sacrifice, and it may not soon win out.

Keywords: death penalty, capital punishment, death sentence, sentencing, criminal law, criminal procedure, human rights, eighth amendment, cruel and unusual, due process, equal protection

Suggested Citation

Howe, Scott, Can California Save its Death Sentences? Will Californians Save the Expense? (July 23, 2011). Cardozo Law Review, Vol. 33, 2012, Chapman University Law Research Paper No. 11-26, Available at SSRN:

Scott Howe (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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