At this moment, it looks like Christopher Dorner, the ex-L.A.P.D. officer who’s been terrorizing Southern California for the past week, died on Tuesday in a confrontation with his pursuers. A San Bernardino deputy sheriff was also killed; Dorner has already been charged with the murder of another officer, and is alleged to have killed two other people. In a lengthy post on Facebook last week, Dorner said that the motive for his rampage was an unjust dismissal from the L.A.P.D. several years ago.
If Dorner didn’t die (and is later caught), we can be sure that one or more district attorneys will seek to have him executed. And thus the nation would be forced to confront one of the biggest fiascoes in the American legal system—the death penalty in California.
It’s possible for reasonable people to hold differing opinions on the death penalty. (Over the years, I’ve had several different ones myself.) But what’s going on in California represents the worst of all worlds—a massively expensive Potemkin operation in which hundreds of people are sentenced to death and no one is ever executed.
Here are the facts, most of them courtesy of the Death Penalty Information Center, which is an invaluable clearinghouse of accurate information and thoughtful analysis. There are seven hundred and twenty-four people on death row in California, far more than in any other state. (Texas only has three hundred and four.) But since the Supreme Court reinstituted the death penalty in 1976, there have only been thirteen executions in California, and none since 2006. (There have been seven hundred and fifty-five in Texas.) So it’s entirely likely that a jury would send Dorner to death row in San Quentin, along with other killers like Scott Peterson. But there is basically no chance that Dorner would ever be put to death.
There are several reasons that the system in California has ground to a halt. The 1978 voter initiative that restored the death penalty sent all appeals directly to the California Supreme Court, bypassing the intermediate appeals courts. This has created a huge backlog at the state’s highest court. Moreover, challenges to the method of execution have led to a de facto moratorium on executions since 2006. That impasse continues.
The root of the problem, in California and elsewhere, is that, as the Supreme Court has often said, death is different. The finality of capital punishment requires special safeguards against errors in the judicial process. But if a state takes those safeguards seriously, as California does, the process can become never-ending. Death-row exonerations, through DNA evidence and other means, have provoked even greater scrutiny of the cases of those who remain. And the state’s oxymoronical quest to kill people in a humane fashion turns out to be difficult indeed. All of this leads to delay.
And to enormous expense: many studies have shown that the death penalty is far more costly to taxpayers than a maximum sentence of life in prison without the possibility of parole. Research summarized by the Death Penalty Information Center suggests that California has spent more than four billion dollars on the death penalty since 1978. Florida pays about $24 million per execution. Maryland spent $186 million for five executions.
These cost issues led last year to a voter initiative to abolish the death penalty in California. Proposition 34 lost, but the anti-execution position received forty-seven per cent of the vote. By comparison, the 1978 initiative to restore the death penalty passed with seventy per cent of the vote, so there’s clearly been a major change in public sentiment. The national trends are all heading in the same direction: popular support, death sentences, executions all heading down.
The death penalty is not the only issue raised by the Dorner case. There is also the tangled story of race and the Los Angeles Police Department, which he reprised in his manifesto; the role of guns; and the way that coverage of the manhunt practically upstaged the State of the Union address. There is also the mystery of his crimes themselves and Dorner’s decline into criminal madness. If Dorner is dead, few will mourn him. But anyone who has thought that his murderous spree—or the next spectacular California crime—would lead to a restoration of executions is very much mistaken. The death penalty is already over in California in fact; it may take a little while longer to be gone in law, too.
Photograph by Rex Features/AP.
