October 4, 2011
Pursuant to Elections
Code Section 9005, we have reviewed the proposed statutory initiative
related to the death penalty (A.G. File No. 11‑0035).
Murder and the Death Penalty.
First degree murder is generally defined as murder that is
intentional or deliberate or that takes place during certain other
crimes. It is generally punishable by a sentence of 25-years-to-life
imprisonment with the possibility of release from prison on parole.
However, current statute makes first degree murder punishable by death
or life imprisonment without the possibility of parole when specified
“special circumstances” of the crime have been charged and proven in a
case. Existing state law identifies a number of special circumstances
that could be charged, such as in cases when the murder was intentional
and carried out for financial gain, was especially cruel, or was
committed while the defendant was engaged in other specified criminal
activities. A jury trial generally determines which penalty is to be
applied when special circumstances have been charged and proven.
Implementation of the Death
Penalty in California. As of August 2011, California had
712 offenders with a death
sentence. Male condemned inmates are housed at San Quentin State Prison,
while female condemned inmates are housed at the Central California
Women’s Facility in Chowchilla. By law, death penalty verdicts are
automatically appealed to the California Supreme Court. Also, such cases
ordinarily involve an extensive series of appeals both to state and
federal courts, which are commonly referred to as habeas corpus
Both the state and
county governments incur costs for murder trials, including costs for
the courts, prosecution, and defense of indigent persons charged with
murder. The state also incurs costs for death penalty appeals both for
prosecution of such cases and for defense of indigent persons.
As of August 2011,
the California Supreme Court had affirmed 293 death sentences under the
automatic appeal process. Many additional cases remain pending in the
courts. Thirteen persons have been executed since the current death
penalty law was enacted in 1978.
This measure changes
state law to (1) repeal the state’s current death penalty statute,
(2) generally require murder offenders to work while in prison, and
(3) provide funding for new local law enforcement grants on a
Elimination of Death Sentences.
This measure eliminates the imposition of death as the penalty
for any crime punished by the state. The measure also specifies that
offenders currently under a sentence of death would not be executed and
would instead serve a prison term of life without the possibility of
Resolution of Pending Appeals and
Petitions. This measure outlines a process for possibly
resolving ongoing death penalty appeals and habeas corpus petitions for
capital cases that are pending in state courts. Specifically, it allows
the California Supreme Court to transfer all such cases to any of the
state’s Courts of Appeal or superior courts.
Inmate Work Requirement.
Current state law generally requires that inmates work while they are in
prison. California statutes and California Department of Corrections and
Rehabilitation (CDCR) regulations allow for some exceptions to these
requirements, such as for inmates who pose too great a security risk to
participate in work programs. This measure specifies that every person
found guilty of murder must work while in state prison, subject to the
existing state laws and regulations. Thus, if enacted by voters, this
new work requirement could not be changed in the future without a vote
of the public.
Establishment of Fund for Local
Law Enforcement. The measure establishes a new special fund,
called the SAFE California Fund, to support grants to police
departments, sheriff’s departments, and district attorney’s offices, for
the stated purpose of increasing the rate at which homicide and rapes
are solved. The measure specifies that the money could be used to speed
up the processing of physical evidence collected in rape cases, improve
the use of forensic science in investigations, increase staffing in
homicide and sex offense investigation and prosecution units, and to
relocate crime witnesses. The measure also states that it could be used
by these agencies for other projects and activities related to this
measure. Under the terms of the measure, $10 million would be
transferred in 2012-13 from the state General Fund, the main state fund
used for the support of various types of state programs, to the SAFE
California Fund. Each year from 2013-14 through 2015-16, $30 million
more would be transferred from the General Fund to the fund, bringing
the total amount of transfers to $100 million. Monies in the SAFE
California Fund would be distributed to local agencies based on a
formula determined by the state Attorney General.
The measure would
have a number of fiscal effects on the state and local governments. The
major fiscal effects are discussed below.
Murder Trial Costs
Savings. Elimination of
the death penalty would result in reduced criminal justice systems costs
related to some murder trials, in various ways:
This measure would shorten the time it
takes to try some murder cases. For example, jury selection for some
cases would be shortened and there would no longer be a separate phase
of some murder trials to determine whether life without the possibility
of parole or the death penalty should be imposed. These factors would
reduce state costs for support of the trial courts. In addition, the
elimination of the death penalty would reduce the costs incurred by
counties for prosecutors and public defenders for some murder cases,
such as preparation for murder trials and participation in the penalty
phase of trials where a death sentence is sought.
County jail costs would also be reduced
by the measure. Persons held for trial on murder charges, particularly
cases that could result in a death sentence, ordinarily remain in
custody in county jail until the completion of their trial and
sentencing. As some murder cases were expedited or eliminated due to the
prohibition on capital punishment, the transfer of persons convicted of
murder from county jail to state prison would be accelerated, thus
reducing the operating costs of county jails.
Prohibition of the death penalty would
also reduce expenditures by state, county, and city law enforcement
agencies on such cases. Law enforcement personnel are often key
witnesses in murder trials. A reduction in the number of such trials and
a reduction in the length of those cases that do go to trial would in
turn reduce their law enforcement staffing costs.
Offsetting Costs. These
savings would be offset to the extent that prohibition of the death
penalty eliminated an incentive for offenders to reach plea agreements
with district attorneys in some murder cases. Some murder cases are
being resolved with an offender’s plea to a murder charge in trade for
an agreement by the district attorney not to seek the death penalty. If
the death penalty is prohibited and these cases go to trial instead of
being resolved through plea agreements, additional state and local
governmental costs for support of courts, prosecution, and defense
counsel, as well as county jails, could result. The magnitude of these
costs is unknown.
Net Impact. In view of
the above, this measure is likely to result in a reduction in costs to
the state for support of the trial courts, as well as a reduction in
costs to counties for prosecution and representation of indigent
defendants charged with murder, as well as the costs associated with
housing these defendants in jail prior to their sentencing. The
magnitude of the net savings to the state and counties from these
factors relating to murder trials is unknown, but could be in the low
tens of millions of dollars annually on a statewide basis.
Appellate Litigation Costs
Savings. Over time, the
measure would reduce state expenditures by the state Department of
Justice, the Office of the State Public Defender, the Habeas Corpus
Resource Center, the Court-Appointed Counsel program, and the California
Supreme Court for the costs of litigating and hearing capital punishment
appeals. These costs currently amount to about $50 million annually.
However, part of these expenditures would continue until the courts
resolved all past and pending cases involving death sentences.
Offsetting Costs. These
savings would be partially offset by an ongoing increase in the workload
for superior courts and the Courts of Appeal. Upon the elimination of
the death penalty, these courts would handle more appeals related to
sentences of life without the possibility of parole. The state
would also incur additional costs for providing representation to
qualifying, indigent defendants involved in these appeals. The
additional costs to the state and counties as a result of these factors
are unknown, but would likely not exceed a few million dollars annually
once the lower courts resolved any death penalty cases shifted to them
by the California Supreme Court.
Net Impact. Thus, the
measure would result in a net reduction in state expenditures on
death-penalty related appeals in the tens of millions of dollars
annually in the long run.
State Correctional Costs
Costs. The enactment of
this measure would result in an increase in state prison operation costs
to the extent that offenders who would otherwise have been executed were
held in state prisons for a longer period of time. These additional
costs would not likely occur in the near term because relatively few
persons now sentenced to death would otherwise have been executed as the
appeal of their cases continues. However, the net cost of imprisoning
offenders for life without the possibility of parole, instead of
sentencing them to death, could be significant in the long term,
especially if death penalty cases were to be resolved more quickly by
the appeals courts in the future than they are now in favor of allowing
executions to proceed.
Offsetting Savings. The
enactment of this measure could result in a significant ongoing
reduction in state costs for the operation of the state’s prison system.
Because offenders under death sentence are generally held in separate
cells on death row and do not share cells with other inmates there, the
prohibition of the death penalty might permit the state to move some
former death row inmates to prison facilities where they could be
double-celled with other high-security inmates at a lower security cost.
In addition, the state currently incurs additional costs—above the
amount typically spent on an average inmate—to incarcerate offenders
under a death sentence due to various regulations and procedures that
only apply to such offenders. For example, CDCR staff indicate that such
offenders are often escorted by two staff members in circumstances where
individuals with sentences of life without the possibility of parole are
generally only escorted by a single staff member. Thus, the state could
achieve additional operational savings to the extent that such special
regulations and procedures would no longer be in effect.
There would likely be
little fiscal effect from the provisions mandating that murderers work
while in prison. This is because the measure’s inmate work requirement
does not change existing statute or regulation regarding prison work
programs. Finally, the enactment of this measure would save the state
the actual cost of carrying out executions. These savings would probably
not be significant.
Net Impact. On balance,
our analysis indicates it is likely that this measure would result in a
net savings to the state on prison operation costs, potentially
exceeding the low tens of millions of dollars annually, in the near
term. The longer term net impact on correctional operation costs are
less certain and would depend heavily on the rate of executions in the
General Fund Transfers to the SAFE
As discussed above, the measure would require
that a total of $100 million be transferred from the state General Fund
to the SAFE California Fund from 2012-13 through 2015-16. As a result,
less General Fund resources would be available to support various other
state programs, but more funding would be available for local government
agencies which received these grants. To the extent that funding
provided from the SAFE California Fund to local agencies results in
additional arrests and convictions, the measure could increase state and
county costs for trial court and jail operations. The resulting fiscal
impact, if any, is unknown and cannot be estimated at this time.
Prison Construction. The
measure could also affect future prison construction costs. For example,
it could also allow the state to avoid future facility costs associated
with housing a growing number of death row inmates. On the other hand,
it could increase prison construction costs to the extent it increases
the number of individuals housed in prison with sentences of life
without the possibility of parole. The net impact of these factors on
prison construction costs is unknown.
Effect on Murder Rate. To
the extent that the prohibition on the use of the death penalty has an
effect on the incidence of murder in California, the measure could
affect state and local government expenditures. The resulting fiscal
impact, if any, is unknown and cannot be estimated.
Summary of Fiscal Effects
We estimate that this
measure would have the following major fiscal effects:
Net savings to the state and counties
that could amount to the high tens of millions of dollars annually on a
statewide basis due to the elimination of the death penalty.
One-time state costs totaling
$100 million from 2012-13 through 2015-16 to provide funding to local
law enforcement agencies.
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