Rethinking the Death Penalty

Those of you who already know me know I’m a member of the CA Board of Parole Hearings and am a retired prosecutor who has been a lawyer since 1977.


Before I go further, let me stress that this opinion, is simply me exercising my free speech rights as a private citizen. I do not claim nor intend what I say here is being offered on behalf of BHP or any other official entity of the state of California. It’s just me.


Now, having said that, those of you who really know me also know I created the Crime Control Foundation back in the early ’90’s to try and fix the criminal justice system. Obviously, that task is akin to eating a 1,000 pound shark or moose, or whatever. It must be done one little bite at a time and each bite must be chewed very carefully.


(Those who don’t know me, and wish to learn more, please go to my own website, , and review my bio page)www.courtroomsurvival.com


Anyhow, with these preliminaries out of the way, let’s talk about the death penalty. For those who don’t know me, I am pro-capital punishment. However, having said that, as a retired prosecutor, I realize that any system which is run by humans tends to be error prone and we obviously must do all we can to insure that innocent people are not prosecuted and, certainly, never put to death.


But, I’m also sick and tired of the endless appeals and petitions for writs of habeas corpus, et al, that drag on ceaselessly for sometimes as long as 25-30 years following a murdering defendant’s conviction and sentencing by a juror of their peers. Therefore, I’ve been advocating for a long time that we need to rethink this issue. How do we do this?


First of all, since the lion’s share of the time death penalty cases clunk around is in the federal court system, I believe any solution to this nonsense must come from Congress. The reason cases hang around federal court is so appellate attorneys can raise what are called “federal questions.


Federal questions deal with alleged U.S. Constitutional violations. This includes unreasonable searches and seizures (4th Amendment), Due Process and the privilege against self-incrimination (5th Amendment), right to counsel, right to confront and cross-examine accusers and right to a fair and impartial public trial (6th Amendment), prohibition against cruel and unusual punishment (8th Amendment), equal protection (14th Amendment), and so on. An appellate attorney’s options are limited by the extent of their fertile imagination.


In the meantime, state prisoners in states such as California, are housed, fed, clothed, protected and provided health care to the approximate tune of $42,000 per year per inmate. Over a 30 year span, that totals nearly $1.3 million…per prisoner! Now, please keep in mind that these figures are rough estimates. I don’t claim to have them nailed down to the penny.


The other issue, quite obviously, is the delay in dispensing justice for the victim’s next of kin and their other loved ones. Frankly, this issue becomes even more vexing when the victim is a murdered police officer. As any person with common sense should know, anyone who will knowingly murder a peace officer because of what they do for a paycheck is telling society in general that none of us are safe from them.


One of the issues that opponents of the death penalty raise, ad infinitum, is whether those on death row are there because they are not adequately represented by counsel, both at the trial and the appellate levels. Therefore, here is what I propose we do. First of all, to quiet those complaints, we need to provide adequate training and compensation for lawyers who handle death penalty cases.


Yes, this will have to come from tax dollars. And, yes, I believe justice delayed is justice denied. But, I also will NEVER countenance an innocent person being prosecuted.  And, I certainly will never condone an innocent person being put to death. So, am I merely suggesting we give the farm away by spending tax dollars to train the lawyers who will represent these folks? No. Of course not!


All I’m saying about that issue is that we must remove the source of the complaints that tend to be one of the bigger artillery pieces hauled around by death penalty foes. I’m suggesting we must be proactive and beat them to the punch so we can successfully employ a public safety tool I believe works…or, at least, should work, but for unneeded obstructions and obstructionists.


So, how do we do this? First of all, Congress must pass legislation that is written clearly enough to be signed by the guy who lives at 1600 Pennsylvania Avenue, aka the U.S. President. To get there, it must pass both the House of Representatives and the U.S. Senate. And, here is precisely what I envision this legislation will do.


It will amend the U.S. Constitution to create a special federal court that will handle nothing but death penalty appeals. Suggested name? How about U.S. Capital Court? Let’s make it a division of the U.S. Supreme Court. And, once a defendant is convicted and sentenced to death in their state, their case must ultimately be reviewed by their state’s highest appellate court. In CA, that’s the CA Supreme Court.


From there, the specially-trained death penalty appellate attorney will raise any federal questions directly, and only, to the U.S. Capital Court, where specially-trained justices, in a number to be decided later, will hear any and all issues that are raised in the ONE AND ONLY appeal that can be raised, following a denial of their appeal by their state’s highest appellate court.


This one and only appeal heard by the U.S. Capital Court must be done within, say, twenty-four (24) months from the date of denial of appeals by their state’s highest court. At the time their appeal is heard by this brand new court, one of two things is going to happen: (a) their conviction and sentence will be upheld and thereafter they will receive a prompt execution date that can only be overturned by their state’s Governor (consistent with long standing existing law), or, (b) their conviction and/or sentence is overturned on U.S. Constitutional grounds.


If the latter occurs, the U. S. Capital Court can order a new guily-phase trial or a penalty-phase trial, or both, (…once again…consistent with existing law…). I realize what I am proposing herein is novel and perhaps even revolutionary, but, something has to be done to fix the broken death penalty process here in America. Use it or lose it…


Justice delayed is truly justice denied. An age old expression cautions “…if it ain’t broke, don’t fix it…”. However, as any student of this issue knows, it is broken and must be fixed. If anyone has any better ideas, I’m all ears. In the meantime, if no one does, and you find my suggested solution workable, then let’s get behind this and ask Congress to do its job, okay?

Martin C. Brhel, Jr.