BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 490
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          Date of Hearing:   July 5, 2011
          Counsel:        Sandy Uribe
          Counsel:        Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    SB 490 (Hancock) - As Amended:  June 28, 2011


           SUMMARY  :  Abolishes the death penalty as a punishment option for 
          persons convicted of murder in the first degree with special 
          circumstances.  Specifically,  this bill:  

          1)States legislative findings regarding the economic cost of the 
            death penalty.

          2)Makes murder in the first degree where one or more special 
            circumstances are found to be true punishable by imprisonment 
            in the state prison for life without the possibility of parole 
            (LWOP) by eliminating the death penalty option.

          3)Provides that the state shall not carry out any execution 
            following the enactment of this act unless the voters fail to 
            approve this act.

          4)States that in any case where a defendant or inmate was 
            sentenced to death prior to the enactment of this act, upon 
            voter approval of this act, the sentence of each defendant or 
            inmate shall be automatically converted to life imprisonment 
            without the possibility of parole under the terms and 
            conditions of this act.

          5)Provides that the provisions of this act are severable.  If 
            any provision of this measure or its application is found 
            invalid, that invalidity shall not affect other provisions or 
            applications that can be given effect without the invalid 
            provision or application.

          6)Makes several conforming changes.

           EXISTING LAW  :

          1)Provides that murder is the unlawful killing of a human being, 








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            or a fetus, with malice aforethought.  (Penal Code Section 
            187.)

          2)Provides that malice aforethought may be express or implied.  
            Malice aforethought is expressed when the perpetrator 
            manifests a deliberate intention to take the life of another 
            human.  Malice aforethought is implied when there was "no 
            considerable provocation" for the killing, or when the 
            circumstances surrounding the killing show "an abandoned and 
            malignant heart."  (Penal Code Section 188.)

          3)Classifies murder according to degrees, either first degree or 
            second degree.  (Penal Code Section 189.)

          4)Provides that first-degree murder includes murders perpetrated 
            by destructive device or explosive; knowing use of ammunition 
            designed primarily to penetrate metal or armor; poison; lying 
            in wait; torture; any kind of willful, deliberate, and 
            premeditated killing; discharging a firearm from a motor 
            vehicle, intentionally at another person outside of the 
            vehicle with the intent to inflict death; and any murder 
            committed in the perpetration of, or attempt to perpetrate:

             a)   Arson;

             b)   Rape;

             c)   Carjacking;

             d)   Robbery;

             e)   Burglary;

             f)   Mayhem;

             g)   Kidnapping;

             h)   Train wrecking;

             i)   Sodomy;

             j)   Lewd or lascivious acts on a child under age 14;

             aa)  Oral copulation; or,









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             bb)  Penetration of genital or anal openings with a foreign 
               object.  (Penal Code Section 189.)

          5)Provides that second-degree murders include all murders not 
            enumerated as first degree.  (Penal Code Section 189.)

          6)Specifies that first-degree murder without "special 
            circumstances" (Penal Code Section 190.2) is punishable in the 
            state prison for a term of 25-years-to-life.  (Penal Code 
            Section 190.)

          7)Specifies that first-degree murder with "special 
            circumstances" (Penal Code Section 190.2) is punishable by 
            death, or in the state prison for LWOP.  (Penal Code Section 
            190.)

          8)Limits imposition of the death penalty to those first-degree 
            murder cases where the trial jury finds true at least one 
            "special circumstance."  Currently, the Penal Code lists 22 
            separate categories of "special circumstances":

             a)   The murder was intentional and carried out for financial 
               gain;

             b)   The defendant was convicted previously of first- or 
               second-degree murder;

             c)   The defendant, in the present proceeding, has been 
               convicted of more than one offense of first- or 
               second-degree murder;

             d)   The murder was committed by means of a destructive 
               device planted, hidden or concealed in any place, area, 
               dwelling, building or structure;

             e)   The murder was committed to avoid arrest or make an 
               escape;

             f)   The murder was committed by means of a destructive 
               device that the defendant mailed or delivered, or attempted 
               to mail or deliver;

             g)   The victim was a peace officer who was intentionally 
               killed while performing his or her  duties and the 
               defendant knew or should have known that; or the peace 








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               officer/former peace officer was intentionally killed in 
               retaliation for performing his or her duties;

             h)   The victim was a federal law enforcement officer who was 
               intentionally killed Ýthe same as Item (g) above];

             i)   The victim was a firefighter who was intentionally 
               killed while performing his or her duties;

             j)   The victim was a witness to a crime and was 
               intentionally killed to prevent his or her testimony, or 
               killed in retaliation for testifying;

             aa)  The victim was a local, state or federal prosecutor 
               murdered in retaliation for, or to prevent the performance 
               of, official duties;

             bb)  The victim was a local, state, or federal judge murdered 
               in retaliation for, or to prevent the performance of, 
               official duties;

             cc)  The victim was an elected or appointed official of 
               local, state or federal government murdered in retaliation 
               for, or to prevent the performance of, official duties;

             dd)  The murder was especially heinous, atrocious, or cruel, 
               "manifesting exceptional depravity."  "Manifesting 
               exceptional depravity" is defined "a conscienceless or 
               pitiless crime that is unnecessarily torturous";

             ee)  The defendant intentionally killed the victim while 
               lying in wait;

             ff)  The victim was intentionally killed because of his or 
               her race, color, religion, nationality, or country of 
               origin;

             gg)  The murder was committed while the defendant was engaged 
               in, or was an accomplice in, the commission of, attempted 
               commission of, or immediate flight after, committing or 
               attempting to commit the following crimes:  robbery; 
               kidnapping; rape; sodomy; lewd or lascivious act on a child 
               under age 14; oral copulation; burglary; arson; train 
               wrecking; mayhem; rape by instrument; carjacking; torture; 
               poison; the victim was a local, state or federal juror 








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               murdered in retaliation for, or to prevent the performance 
               of his or her official duties; and, the murder was 
               perpetrated by discharging a firearm from a vehicle. 

             hh)  The murder was intentional and involved the infliction 
               of torture;

             ii)  The defendant intentionally killed the victim by the 
               administration of poison;

             jj)  The victim was a juror and the murder was intentionally 
               carried out in retaliation for, or to prevent the 
               performance of, the victim's duties as a juror;

             aaa) The murder was intentional and committed by discharging 
               a firearm from a motor vehicle; or,

             bbb) The defendant intentionally killed the victim while 
               actively participating in a criminal street gang.  (Penal 
               Code Section 190.2.)

          9)Requires three separate findings at the trial in order to 
            qualify for the death penalty:  (a) guilty of first-degree 
            murder, (b) a finding that at least one of the charged 
            "special circumstances" is true, and (c) the jury's 
            determination that death is appropriate rather than LWOP.  The 
            first two findings occur when the jury deliberates at the 
            close of the "guilt phase."  (Penal Code Sections 190.1 and 
            190.4.)  The penalty determination takes place during the 
            "penalty phase" where the either the judge or jury considers 
            factors in aggravation or mitigation.  (Penal Code Section 
            190.3)  If the jury fixes the penalty at death, the judge 
            still retains the power to reject the jury's penalty verdict 
            and impose LWOP.  ÝPenal Code Section 190.4(e).]

          10)Provides that during the penalty phase of a death penalty 
            trial, the prosecution and the defendant may present evidence 
            relevant to aggravation, mitigation, and sentence.  In 
            determining the penalty to be imposed, the trier of fact may 
            take into account any relevant enumerated factors.  Such 
            factors in aggravation or mitigation include: 

             a)   The circumstances of the crime and the existence of any 
               special circumstances;









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             b)   The presence or absence of threats or the actual use of 
               force or violence;

             c)   Prior felony convictions;

             d)   Whether or not the offense was committed while the 
               defendant was under the influence of extreme mental or 
               emotional disturbance;

             e)   Whether or not the victim was a participant or consented 
               to the homicidal act;

             f)   Whether or not the offense was committed under 
               circumstances that the defendant believed to be a moral 
               justification or extenuation of his or her conduct.

             g)   Whether or not the defendant acted under extreme duress 
               or under the substantial domination of another person;

             h)   Whether or not at the time of the offense, the capacity 
               of the defendant to appreciate the criminality of his or 
               her conduct or to conform his or her conduct to the law was 
               impaired as a result of mental disease, defect, or the 
               effects of intoxication;

             i)   The age of the defendant at the time of the crime;

             j)   Whether or not the defendant was an accomplice and his 
               or her participation in the offense was relatively minor; 
               or,

             aa)  Any other circumstance that extenuates the gravity of 
               the crime, though not a legal excuse for the crime.  (Penal 
               Code Section 190.3.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Capital 
            punishment is an expensive failure and an example of the 
            dysfunction of our prisons.  California's death row is the 
            largest and most costly in the United States.  It is not 
            helping to protect our state; it is helping to bankrupt us.









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          "Study after study has shown that capital punishment as a 
            penalty is not a deterrent and that the multiple appeals that 
            drag on for years and years multiply costs and add to the 
            uncertainty and anxiety of victims.

          "The most recent report "Executing the Will of the Voters:  A 
            Roadmap to Men or End the California Legislature's 
            Multi-Billion-Dollar Death Penalty Debacle," written by U.S. 
            9th Circuit Judge Arthur L. Alarcon, a former prosecutor, and 
            Loyola Law School professor Paula M. Mitchell, projects that 
            the cost of maintaining the death penalty will rise to $9 
            billion by 2030.  The study reports that taxpayers have 
            already spent more than $3 billion on only 13 executions since 
            the death penalty was reinstated in 1978.

          "The death penalty failings cannot be fixed.  Distinguished 
            prosecutors such as Los Angeles County's long-time DA Gil 
            Garcetti have come out against it.  It is time for the 
            Legislature to act.

          "It is not simply a cost issue.  More than a dozen people were 
            wrongly executed in Illinois before that state banned the 
            death penalty earlier this year.  I don't want to see that 
            kind of tragic statistic in California.  We need to join 
            Illinois and the 15 other states that have chosen to 
            substitute life imprisonment without the possibility of parole 
            for a failed death penalty.

          "Today, we're not tough on crime; we're tough on the taxpayer.  
            Every time we spend money on failed policies like the death 
            penalty, we drain money from having more police officers on 
            the street, more job training, more education, more of the 
            things that would truly make for safer communities."  
           
           2)Death Penalty Information Center Report  :  The Death Penalty 
            Information Center recently a prepared a report,  Struck by 
            Lightning:  The Continuing Arbitrariness of the Death Penalty 
            Thirty-Five Years After Its Re-instatement in 1976  .  According 
            to the report's executive summary, "The United States Supreme 
            Court approved the re-instatement of the death penalty 35 
            years ago on July 2, 1976.  Although the death penalty had 
            earlier been held unconstitutional because of its arbitrary 
            and unpredictable application, the Court was willing to 
            sanction new systems that states had proposed to make capital 
            punishment less like 'being struck by lightning' and more like 








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            retribution for only the 'worst of the worst' offenders.  The 
            court also deferred to the states' judgment that the death 
            penalty served the goals of retribution and deterrence.

          "After three and a half decades of experience under these 
            revised statutes, the randomness of the system continues.  Man 
            of the country's constitutional experts and prominent legal 
            organizations have concluded that effective reform is 
            impossible and the practice should be ended.  In polls, jury 
            verdicts and state legislative action, there is evidence of 
            the American people's growing frustration with the death 
            penalty.  A majority of the nine Justices who served on the 
            Supreme Court in 1976 when the death penalty was approved 
            eventually concluded the experiment had failed.

          "Four states have abolished the death penalty in the last four 
            years, and nationwide executions and death sentences have been 
            cut since 2000.  A review of state death penalty practices 
            exposes a system in which an unpredictable few cases result in 
            executions from among thousands of eligible cases.  Race, 
            geography and the size of a county's budget play a major role 
            in who receives the ultimate punishment.  Many cases thought 
            to embody the worst crimes and defendants are overturned on 
            appeal and then assessed very differently the second time 
            around at retrial.  Even these reversals depend significantly 
            on the quality of the lawyers assigned and on who appointed 
            the appellate judges reviewing the cases.  In such a haphazard 
            process, the rationales of deterrence and retribution make 
            little sense.

          "In 1976, the newly reformed death penalty was allowed to 
            resume.  However, it has proved unworkable in practice.  
            Keeping it in place, or attempting still more reform, would be 
            enormously expensive, with little chance of improvement.  The 
            constitution requires fairness not just in lofty word, but 
            also in daily practice.  On that score, the death penalty has 
            missed the mark."

           3)Number of Executions  :   According to recent articles in the 
             Los Angeles Times  and the  San Francisco Daily Journal  , a legal 
            newspaper, there are currently 714 prisoners on death row.  
            Since the death penalty was reinstated in 1978 by Proposition 
            7, there have been a total of 13 executions, while 78 
            prisoners have died of natural or other causes on death row.  
            (See 








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          ; and San Francisco Daily Journal, June 
            21, 2011, page 6.)  As of 2008, 98 convicted inmates have left 
            death row because of overturned convictions or sentences.  
            (See .) 

           4)Disparity in Application  ?  Recently, the American Civil 
            Liberties Union (ACLU) of Northern California published a 
            report on the death penalty, Death in Decline '09  .  (See 
            .)  The report states that while the 
            national trend has seen a reduction in the number of death 
            sentences imposed, imposition of the death penalty in 
            California is increasing.  (Id. at page 1.)  The report 
            further found that three counties, Los Angeles, Riverside and 
            Orange, account for the majority of the death penalty 
            sentences.  In fact, in 2009, Los Angeles County sent more 
            people to death row than did the entire state of Texas in the 
            same year.  (Id. at pages 2-3.)  The report also notes that 
            African Americans and Latinos make up a majority of the people 
            on death row, which raises questions about the choices 
            prosecutors make in charging death penalty cases.  (Id. at 
            pages 8-9.)

          A 2005 Santa Clara Law Review article examined racial, ethnic, 
            and geographical variations present in the imposition of the 
            death penalty in California.  ÝGlenn L. Pierce & Michael L. 
            Radelet, The Impact of Legally Inappropriate Factors on Death 
            Sentencing for California Homicides, 1990-1999, 46 SANTA CLARA 
            L. REV. 1 (2005), .]  The authors found 
            that in addition to disparities based on the location of the 
            crime, as mentioned above, a defendant was 67% less likely to 
            be sentenced to death if the victim was non-Hispanic white 
            than if the victim was African American or Latino.  (Id. at 
            21). 

           5)Delay between Sentence and Execution  :  The California Supreme 
            Court has a backlog of automatic appeals in death penalty 
            cases.  The average time to litigate an automatic appeal is 
            between 11.7 and 13.7 years.  Ý2008 Final Report by California 
            Commission on the Fair Administration of Justice, p. 131-132 
            (hereinafter CCFAJ Report)  SB 490
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            f>.]  It is only after state appeal and habeas remedies have 
            been exhausted that the federal court will begin to consider 
            the case.  For federal habeas review, the average time between 
            filing the application and disposition is 6.2 years.  (Id. at 
            p. 136.)  In total, the time from death sentence to execution 
            in California is 20 to 25 years, compared with the national 
            average of 12 years. Thirty inmates have been on death row 
            more than 25 years, 119 for more than 20 years, and 240 for 
            more than 15.  (See 
            , 
            citing CCFAJ Report.)  

          "The reality is that most California death sentences are 
            actually sentences of lifetime incarceration.  The defendant 
            will die in prison before he or she is ever executed."  (CCFAJ 
            Report p. 144.)  The system's "failures create cynicism and 
            disrespect for the rule of law . . . weaken any possible 
            deterrent benefits of capital punishment, increase the 
            emotional trauma experienced by murder victims' families and 
            delay the resolution of meritorious capital appeals," the 
            Commission concluded.  (CCFAJ Report, p. 115.)

           6)Costs of Litigation  :  A 2011 report,  Executing the Will of the 
            Voters?:  A Roadmap to Mend or End the California 
            Legislature's Multi-Billion Dollar Debacle  , by Judge Arthur L. 
            Alarcon and Professor Paula M. Mitchell, attempts to calculate 
            the costs expended on litigating death penalty cases.  

          Death penalty trials take longer and cost considerably more than 
            non-death penalty murder trials.  (Id. at p. 71.)  The 
            additional costs are based on several factors.  First, whereas 
            most criminal trials are handled by one attorney for each 
            party, there are usually two death-penalty qualified attorneys 
            for the prosecution and defense, which is almost always 
            publicly funded.  Next, the defense team usually employs 
            multiple investigators and expert witnesses.   Additionally, 
            the jury selection process takes much longer than in a 
            non-capital murder trial because each side is allowed more 
            peremptory challenges and more prospective jurors are excused. 
             (Id. at pp. S76-79.)  Another increased cost is attributable 
            to the fact that death penalty trials are conducted in two 
            phases, guilt and penalty.  Finally, the costs of statutorily 
            mandated court reporter are much higher given the lengthy 
            proceedings.  California has spent approximately 1.94 billion 
            on prosecution of an estimated 1940 death penalty trials since 








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            1978.  (Id. at p. S70, S79.)  

          In addition to trial costs, the state has "spent approximately 
            925 million to fund the litigation of the automatic appeals 
            and state habeas corpus petitions filed by capital prisoners 
            since 1985."  (Executing the Will of the Voters, at p. S79.)   
            The Office of the State Public Defender currently represents 
            more than 130 death row inmates in their appeals.  The agency, 
            which is funded by the General Fund, had an annual budget of 
            approximately $12 million in 2008-2009.  (Id. at p. S87.)  
            Similarly, the Habeas Corpus Resource Center, created by the 
            Legislature, is available to take appointments in capital 
            habeas corpus proceedings.  However, the number of cases it 
            can accept is limited by a statutory cap on the number of 
            staff and by available fiscal resources.  In 2008-2009, the 
            budget was $13,857,000.  (Id. at p. S86.)  Additionally, the 
                                                              California Supreme Court has an annual budget of $15,406,000 
            to compensate and reimburse expenses for privately appointed 
            lawyers doing both direct appeals and habeas corpus cases for 
            death row inmates; $5.585 million of that is allocated to the 
            California Appellate Project (CAP), which maintains a staff of 
            18 attorneys to supervise and assist private lawyers who 
            accept appointments to handle death penalty appeals.  (Id. at 
            pp. S85-86.)   Finally, the Office of the Attorney General's 
            Criminal Law Division represents California in automatic 
            appeals and capital state and federal habeas corpus 
            proceedings.  Former Attorney General Bill Lockyer estimated 
            in 2005 that 15% of the criminal division budget was devoted 
            to death penalty cases.  The approximate expense incurred by 
            the Office of the Attorney General for these cases in 
            2009-2010 was approximately $17,280,000.  (Id. at pp. 
            S87-S88.)  Thus, the current annual costs associated with 
            capital post-conviction litigation is approximately 
            $58,543,000.  (Id. at p. S88.)

           7)Other Costs of Administering the Death Penalty  :  According to 
            another report issued by the ACLU of Northern California, 
            housing on death row costs at least $90,000 more per inmate 
            per year than housing in the general prison population, where 
            those sentenced to permanent imprisonment are housed.   (The 
            Hidden Death Tax: The Secret Costs of Seeking Execution in 
            California, by Natasha Minsker 
            .)  And a 2007 report 
            from the state auditor finds that California is expected to 








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            spend an additional $1 billion in the coming years to build a 
            larger death-row facility that will accommodate 1,000 
            condemned inmates and require hiring 347 additional staff.  
            (.)

           8)Retroactive Application to Final Judgments  :  This bill 
            provides that in any case where a death sentence was imposed 
            prior to the enactment of the act, the sentence shall be 
            automatically converted to LWOP.  

          The California Supreme Court held in In re Estrada (1965) 63 
            Cal.2d 740 that when pending finality of a conviction, the 
            Legislature reduces the penalty for that offense, the 
            defendant is entitled to the benefit of that change in the 
            law.  However, the retroactivity provisions of this bill can 
            apply to judgments that are already final.  And yet, the 
            Estrada rule does not apply to all cases; but only to those 
            which are not yet final. ÝPeople v. Nasalga (1996) 12 Cal.4th 
            784, 789.]  The Estrada court noted, "It is an inevitable 
            inference that the Legislature must have intended that the new 
            statute imposing the new lighter penalty now deemed to be 
            sufficient should apply to every case to which it 
            constitutionally could apply. The amendatory act imposing the 
            lighter punishment can be applied constitutionally to acts 
            committed before its passage provided the judgment convicting 
            the defendant of the act is not final."  (In re Estrada, 
            supra, 63 Cal.2d at p. 745.)

          Estrada draws a distinction between final and non-final 
            judgments is because of the separation of powers doctrine.  
            "This doctrine unquestionably places limits upon the actions 
            of each branch with respect to the other branches.  The 
            judiciary, in reviewing statutes enacted by the Legislature, 
            may not undertake to evaluate the wisdom of the policies 
            embodied in such legislation; absent a constitutional 
            prohibition, the choice among competing policy considerations 
            in enacting laws is a legislative function.  The executive 
            branch, in expending public funds, may not disregard 
            legislatively prescribed directives and limits pertaining to 
            the use of such funds.  And the Legislature may not undertake 
            to readjudicate controversies that have been litigated in the 
            courts and resolved by final judicial judgment."  ÝSuperior 
            Court v. County of Mendocino (1996) 13 Cal.4th 45, 53, 
            citations omitted.]  An automatic conversion of a final death 
            sentence to an LWOP sentence arguably violates the separation 








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            of powers doctrine.

          On the other hand, case law recognizes that a final judgment is 
            not immune from the Legislature's power to adjust prison 
            sentences for a legitimate public purpose.  For example, 
            constitutional considerations may require that an ameliorative 
            provision be applied retroactively.   ÝIn re Chavez (2004) 114 
            Cal.App.4th 989, 1000-1001.]  Also, no separation of powers 
            violation occurs when final judgments are affected only as an 
            incident of a reform of the penal system with some legitimate 
            purpose other than commuting punishment.   ÝWay v. Superior 
            Court (1977) 74 Cal.App.3d 165, 179-180 (rejecting an argument 
            that retroactive application of the Determinate Sentencing Law 
            would constitute a legislative infringement of the governor's 
            power to commute sentences).]  

          Under either rationale, it might be argued be that the bill's 
            retroactivity provision can be applied to final judgments 
            without violating the separation of powers doctrine.  To 
            execute a defendant after the State has abolished the death 
            penalty because his or her judgment was already final would 
            give rise to equal protection challenges under the California 
            and federal constitutions.  The two groups of prisoners would 
            be similarly situated since the only thing distinguishing them 
            would be the date of finality of their judgments.  ÝSee In re 
            Kapperman (1974) 11 Cal.3d 542.]  Likewise, because of the 
            legislative declarations regarding abolition of the death 
            penalty as a cost-saving measure, the effect of altering final 
            judgments of death might be viewed as incidental to a larger 
            legislative purpose restructuring a class of sentences in 
            order to realize the intended cost savings.  

           9)Arguments in Support  :

             a)   According to the  American Civil Liberties Union  , 
               "California's death penalty wastes hundreds of millions of 
               taxpayer dollars, as demonstrated in the new study by Ninth 
               Circuit Judge Arthur Alarcon and Professor Paula Mitchell, 
               and the 2008 report of the non-artisan California 
               Commission on the Fair Administration of Justice.  Our 
               state has already wasted more than $4 billion on only 13 
               executions in more than 30 years.  The death penalty 
               process is long and expensive and yet we remain at risk of 
               executing an innocent person.  Further, the system is a 
               hollow promise to victims' families, creating uncertainty 








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               which continues to cause pain and frustration.

             "If California replaces the death penalty with life without 
               possibility of parole, we will save $1 billion in five 
               years, without releasing a single prisoner.  SB 490 is a 
               step in the right direction.  With sentences of life 
               without possibility of parole, we can hold criminals 
               accountable, provide victims with the finality they 
               deserve, and keep dangerous criminals behind bars for the 
               rest of their life.  In addition, we eliminate the terrible 
               risk of executing an innocent person.  Finally, with the 
               money we save, we can support criminal justice policies 
               that actually work, like increasing law enforcement, which 
               makes a positive difference in the safety of our community.

             "The death penalty cannot be fixed.  It must be replaced with 
               the effective alternative punishment of life without the 
               possibility of parole, and with programs that actually make 
               our communities safer.  Our state must prioritize community 
               safety and cut wasteful programs."

             b)   According to the  Conference of California Bar 
               Associations  , "SB 490 is a practical bill.  Whatever one 
               may think of the death penalty as a moral issue, it is 
               clear that California's death penalty law may well be the 
               most expensive and least effective in the nation.  
               According to a study printed in the Winter 2011 edition of 
               the Loyola of Los Angeles Law Review, since the death 
               penalty was reinstated more than 30 years ago, roughly four 
               billion dollars in taxpayer money has been spent to 
               maintain the current death penalty system.  For that money, 
               only 13 prisoners have been executed, and the vast majority 
               of the 714 prisoners on death row will die of natural 
               causes before their cases can be resolved.

             "The resources that go into a death penalty case are 
               enormous, adding millions to each phase of the process, 
               from trail, to appeal, to habeas proceedings, plus the 
               additional costs of incarceration.  Accorrding to the 
               California Commission on the Fair Administration of 
               Justice's final report from 2008, a death penalty trial 
               costs California Counties at least $1.1 million more than a 
               conventional murder trial.  The cost for housing a prisoner 
               on death row is approximately $90,000 per year, compared to 
               an average cost for incarceration of other prisoners of 








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               around $28,000 per year.  In addition, the mandatory review 
               of death penalty cases consumes a significant portion of 
               the Supreme Court's finite time and thus reduces the 
               court's ability to hear other matters, further increasing 
               both costs and delays."

          10)Arguments in Opposition  :

             a)   According to  Crime Victims United of California  , "In 
               1978, under the guise of Proposition 7, Californians voted 
               to reinstate the death penalty in California.  This law 
               enacted by the people did not provide for amendments by the 
               Legislature; rather under our state constitution, changes 
               to the death penalty law require a vote of the people.  
               While SB 490 provides that abolishment would only be 
               enacted after a vote of the people, such a vote is not 
               likely to occur when a 2010 survey conducted by the Field 
               Poll for the Press Enterprise and other California media 
               found 70% of those polled were in favor of the death 
               penalty.

             "With all due respect, SB 490 is an insult to murder victims. 
                Such action says to victims that even though you have 
               waited decades for justice, that justice is too expensive 
               and not important to the State of California.  California's 
               execution process moves along at an incredibly slow pace, 
               allowing for a virtually unending time frame for appeals - 
               a major cost driver.  That said, twelve-member juries 
               unanimously found these criminals guilty beyond a 
               reasonable doubt.  Even though the jurors faced the 
               agonizing choice of deciding whether a convicted murderer 
               should die or spend the rest of his or her life in prison, 
               decided that the aggravating factors outweighed the 
               mitigating factors, and voted unanimously in favor of 
               execution.  The facts and logic compel the opposite 
               conclusion - that these offenders committed their crimes 
               and deserve the ultimate punishment."

             b)   According to the  California District Attorneys 
               Association  , "First, we must convey that we as an 
               association share the public's support of the death 
               penalty.  As it is currently constituted, the death penalty 
               is a legally appropriate response to the most heinous 
               crimes that can be committed.  The death penalty deters 
               future criminality, especially by permanently 








                                                                  SB 490
                                                                  Page  16

               incapacitating potential repeat offenders, and acknowledges 
               the fact that certain offenses are so serious that a 
               penalty for violations thereof as strong and final as death 
               must be available.

             "Additionally, we believe that the provisions of your bill 
               that convert sentences of death that have already been 
               imposed to LWOP are extremely unfair to communities that 
               expect justice and to victims' families who have been 
               promised ultimate closure.  We cannot imagine the 
               conversation prosecutors would have with victims if this 
               bill were to pass and our members were faced with the duty 
               to tell victims that the person who killed their parent, 
               spouse, child, or sibling would not be facing the death 
               penalty after the years of court proceedings that resulted 
               in such a sentence.  This is especially unimaginable in the 
               context of those sentences that have been affirmed by the 
               California Supreme Court and are awaiting federal 
               disposition.  Further, we feel the conversion of these 
               sentences raises potential constitutional separation of 
               powers issues inasmuch as the Legislature would be 
               effectively changing sentences that were appropriately 
               imposed by the judiciary."

           11)Related Legislation  :

             a)   AB 1455 (Isenberg), of the 1993-1994 Legislative 
               Session, would have prohibited the application of the death 
               penalty for people determined to be mentally retarded.  AB 
               1455 failed passage on the Assembly Floor.

             b)   AB 557 (Aroner), of the 2001-2002 Legislative Session, 
               would have prohibited the application of the death penalty 
               for people determined to be mentally retarded.  AB failed 
               passage on Concurrence in Senate Amendments on the Assembly 
               Floor.

             c)   AB 1512 (Aroner) of the 2001-2002 Legislative session, 
               would have prohibited the application of the death penalty 
               for people determined to be mentally retarded.  AB 1512 
               died on the Assembly Appropriations Committee suspense 
               file.

           REGISTERED SUPPORT / OPPOSITION :









                                                                  SB 490
                                                                  Page  17

           Support 
           
          American Civil Liberties Union
          California Catholic Conference
          California Public Defenders Association
          Conference of California Bar Associations
          Friends Committee on Legislation of California
            Kehilla Community Synagogue
          One private individual

           Opposition 
           
          Anaheim Police Association
          Association for Los Angeles Deputy Sheriffs
          Association of Orange County Deputy Sheriffs
          California Association of Highway Patrolmen
          California District Attorneys Association
          California Fraternal Order of Police
          California Peace Officers' Association
          Chico Police Officers' Association
          Crime Victims United of California
          Cypress Police Officers' Association
          Imperial County Deputy Sheriff's Association
          La Habra Police Association
          Laguna Beach Police Employees Association
          Long Beach Police Officers Association
          Los Angeles South Chapter of the Peace Officers Research 
          Association of California
          Orange County Chapter of the Peace Officers Research Association 
          of California
          Peace Officers Research Association of California
          Riverside Sheriffs' Association
          Sacramento County Deputy Sheriffs Association
          Santa Ana Police Officers Association
          Three private individuals


           Analysis Prepared by  :    Sandy Uribe and Stella Choe/ PUB. S. / 
          (916) 319-3744