Bargaining on Death: Proposition 34

Jeff Gamso, over at Gamso for the Defense, wrote an article last month about California’s Proposition 34.

Prop 34 is an initiative to end the death penalty in California. It’s not really on the ballot because Californians have evolved beyond the primitive stage of cave-dwellers, but because we recognize that continuing to fund the state-sponsored killing of other human beings, if it continues, may force us to actually have to move back into caves.

You see, killing people — when you haven’t been able to streamline it by removing all protections against accidentally murdering innocent people who got caught up in the system — is expensive.

But Jeff’s article highlights a “drawback” to the elimination of the right of the State to end citizens’ lives.

The important part of the death penalty is the threat.

Not because it deters murderers. But because it deters trials.

Trials, you see, are to be avoided, whatever it takes. After all, if we are forced to hold trials, then the prosecution has to prove the accused person has actually committed the crime for which they have been charged. A trial, after all, comes with all kinds of idiotic rights implemented by the Founders of the United States of America, who clearly didn’t understand what we’re up against today.

I mean, crap. If we’re going to have to prove the accused is actually guilty, then we’re probably also going to have to allow them to defend themselves. We’ll have to spend more on their lawyers than we currently do, because the lawyers will have to stay on the case longer, even if they don’t actually do any more work than what they currently do.1

This whole “saving money” thing is just a red herring.

Okay, so we stop spending millions every year incarcerating people accused of first degree murders — whether they are guilty or not — and giving them attorneys to defend writ after writ after appeal, think of all the people who — if we remove the threat of the death penalty — might actually demand trials! That costs money, too! Courts will have to rule on violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, issues raised by due process — it just opens up a whole new area for costing us money and keeping us from railroading people into prisons!

Sarcasm aside, as Jeff says,

Our criminal justice system, and certainly our capital punishment system, shouldn’t be a game of chicken based on threats – empty or real.

To use the death penalty as a bargaining chip is to deny it even the pretense of moral force.  To keep the death penalty on the books because it’s a useful bargaining chip is to deny even the pretense of moral force to the whole justice system.

In California, however, as in many other parts of our once-great nation, that’s exactly what it is.

And it’s not just the death-penalty threat, either. Our entire criminal “justice” system is out of whack. Thanks to exhorbitant sentences driven by our “Three Strikes” mentality, we’re already turning more people into felons who are innocent of felonious behavior. We ratchet punishments up so high even for non-violent crimes that no sane person — innocent or guilty — would take a chance on going before a jury of the same peers who voted in such a draconian system.

If the only thing that can start turning the tide is a little argumentum ad monetarium, I — and a few innocent people who, knowing they were innocent, took a chance and lost at trial — can live with that.

So regardless of whether you’re doing it because you’re a human being, or a troglodyte with empty pockets: VOTE YES ON PROPOSITION 34!

Troglodytes Hunting Money

Troglodytes Hunting Money


Endnotes:

  1. I’m not saying that good public defenders would not work harder. I expect they would. I’m saying in counties where they frequently don’t — Kings County, California, for example — we’d still have to pay them more money because they’d be on the case longer. []

About Rick

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also writes at Fresno Criminal Defense.

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  1. […] that we vote on a number of propositions for this year’s ballot. About a week ago, I wrote a post on Proposition 34, the initiative which will hopefully bring an end to the death penalty. Then, as now, I was spurred […]