July 18, 2019
Over 75 Law Professors and Legal Scholars Call for an End to the Death Penalty in Los Angeles County
UPDATE: LOS ANGELES – A group of over 75 law professors and legal scholars from leading institutions have released an open letter calling for Los Angeles District Attorney Jackie Lacey to end the county’s costly and racially-biased death penalty practices.
Los Angeles County produces more death sentences than anywhere else in the country and, shockingly, DA Lacey continues to pursue the death penalty despite Governor Gavin Newsom’s statewide moratorium on the death penalty issued earlier this year.
The American death penalty is broken in every way. Look closely: in case after case, the accused is either intellectually disabled with an IQ below 75, severely mentally ill, has experienced extraordinary and unspeakable sexual or physical abuse, or shows signs of all of the above. We execute not the worst of the worst, as the Supreme Court has mandated, but society’s most vulnerable and least lucky.
In trial after trial, lawyers fail to provide effective representation for their clients. They conduct no investigation into the case, spend little time with the client or their family, and often present little to no testimony at trial or during the sentencing phase. Over 165 people have been exonerated from death row since 1973. In part because of ineffective representation, it is more likely that those individuals will have their cases overturned than have the state actually execute them. This deplorable lawyering also means that in far too many cases, the jury does not understand the full extent of a person’s impairments and illness. While the jury’s ability to evaluate “the characteristics of the person who committed the crime” is a constitutionally necessary, “bedrock premise on which our system of capital punishment depends,” Elmore v. Holbrook, 137 S.Ct. 3, 11 (2016) (Sotomayor, J., dissenting) (citing Gregg v. Georgia, 428 U.S. 153, 197 (1976) ((joint opinion of Stewart, Powell, and Stevens), frequently the presence of apparent mental illness, cognitive impairments, or extreme trauma goes unacknowledged by counsel and, as a result, unknown by jurors deciding his or her fate.
The ultimate punishment is also becoming increasingly arbitrary and obsolete. There are 327 million people in this country and in a year, around 16,000 homicides, but juries returned death sentences in just 42 murder cases last year. Compare that to 315 in 1996. Over 21 jurisdictions, most recently, New Hampshire, have abolished it. Four jurisdictions, including California, have issued a moratorium on executions. And eight jurisdictions, including the federal government, have shown substantial disuse. It is also imposed in a geographically arbitrary way: of the 3,000 counties in this country, death sentences came from just 36 last year.
The Eighth Amendment to the United States Constitution prohibits a system of punishment that is cruel and unusual, and that is what our system of capital punishment is. The Sixth Amendment guarantees the right to effective counsel, a right that becomes more important where death is the final sentence, and yet capital defendants rarely receive it. It is time for us to stop pretending that the death penalty can or should work.
Los Angeles Must End Its Unconstitutional Death Penalty Machine.
In Los Angeles, District Attorney Jackie Lacey seeks the death penalty with an enthusiasm and consistency unmatched by many of her counterparts across the country, as documented in the ACLU’s recent death penalty report. The nexus of capital punishment in this country resides not in Texas, Georgia, or Oklahoma, but in Los Angeles County, California. As academics and legal scholars acutely aware of its failings, we are deeply disturbed by this practice. Not only does Lacey seek and obtain the death penalty more often that almost any other prosecutor, those sentenced to death under her watch have been exclusively people of color. She pursues the death penalty in the face of terrible defense lawyering and notwithstanding a moratorium on executions in California. She persists in this policy even though a majority of Los Angeles county voters favored the abolition of capital punishment in both 2012 and 2016. We call for an end to this practice in Los Angeles County.
As Justice Stephen Breyer noted recently in a dissent from a denial of certiorari, “[the] geographic concentration of [death sentences] reflects a nationwide trend. Death Sentences, while declining in number, have become increasingly concentrated in an ever-smaller number of counties.” Jordan v. Mississippi, 585 U.S. ___ (2018). Nowhere is that more true than in Los Angeles County, which has produced more death sentences than anywhere in America, and it is one of three counties to have over 10 death sentences in the last five years, putting it in the class of just Riverside, California, and Maricopa, Arizona. It is the only place where prosecutors obtained more than one death sentence in 2018. All of this occurred under the watch of the current District Attorney, Jackie Lacey.
The ACLU report also shows that Los Angeles disproportionately imposes the death penalty against people of color. Since 2012, juries have never sentenced a white person to death, but they have sentenced thirteen people who are Latinx, eight people who are black, and one who is Asian to death by the state. And prosecutors treat the death of a white person differently than the death of a black person: when white people are killed in Los Angeles, those found responsible are sentenced to death at a significantly higher rate than when the victim is non-white. Not only do these practices violate the Eighth Amendment, they also implicate the Constitutional guarantee of Equal Protection under the law.
People who receive death sentences in Los Angeles County largely received ineffective assistance of counsel. Defending an accused in a death penalty case requires an extremely skilled trial lawyer with expertise in trauma, mental health, and investigation. The accused in Los Angeles receive abhorrent counsel in case after case. Of the 22 people LA sent to death row since 2012, five had lawyers who have previously been suspended or disbarred. One lawyer is currently under investigation by the state licensing agency, and two of the accused represented themselves, a frequent sign of a person with a defense team ill-equipped to handle mental illness or the seriousness of the work. Only three men received representation from institutional public defense organizations--offices with specialized training and staff dedicated to capital cases. Luck of the draw should not determine whether a person lives or dies--but in Los Angeles, it does.
These cases are rife with likely violations of the accused’s Sixth Amendment right to counsel. We are disheartened that prosecutors repeatedly and routinely seek such a sentence in the face of such substandard representation.
The District Attorney Must Stop Seeking Sentences of Death
Time and again, we have seen that the administration of the death penalty violates these foundational pillars of the criminal justice system, namely, the right to counsel and the prohibition against cruel and unusual punishment. The death penalty is cruel in its treatment of society’s most broken. It is unusual in its geographic and racial application. And it is imposed not on those who are the worst of the worst, but on those with the least effective counsel. The recent study of the death penalty in Los Angeles only illustrates the problem.
A prosecutor’s job, first and foremost, is to seek justice and uphold the constitution. By leading the nation in its use of the death penalty, the District Attorney’s office in Los Angeles violates its solemn oath. We call on the office to end the county’s experiment with the broken machinery of death.
Signed, with institutional affiliation listed for identification purposes only, by the following:
Priscilla Ocen, Professor of Law, Loyola Law School Los Angeles
Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law, Columbia Law School
Deborah L. Rhode, Professor of Law, Stanford Law School
Matiangai Sirleaf, Assistant Professor of Law, University of Pittsburgh Law School
Issa Kohler-Hausmann, Associate Professor of Law and Sociology, Yale University
Chaz Arnett, Assistant Professor of Law, University of Pittsburgh School of Law
John H. Blume, Samuel F. Leibowtiz Professor of Trial Techniques, Cornell Law School
Ronald Tyler, Professor of Law, Stanford Law School
Robert W. Gordon, Professor Of Law, Stanford Law School
Dan Simon, Richard L. and Maria B. Crutcher Professor of Law and Psychology, USC
John Donahue, Carlsmith Professor of Law, Stanford
Sam Erman, Professor of Law, USC
Niels W. Frenzen, Sydney M. and Audrey M. Irmas Endowed Clinical Professor of Law Director, USC Immigration Clinic, USC
Ariela Gross, John B. and Alice R. Sharp Professor of Law and History, USC
Laura Riley, Director of Experiential Learning and Adjunct Assistant Professor of Law, USC
Rob Saltzman, Professor of Lawyering Skills, Emeritus, USC
Wayne Sandholtz, John A. McCone Chair in International Relations and Professor of International Relations and Law, USC
Alicia Virani, Associate Director of Criminal Justice Program, UCLA Law
Jasleen Kohli, Director of Critical Race Studies Program, UCLA Law
Katherine Tinto, Director of the Criminal Justice Clinic, UC Irvine
Hadar Aviram, Thomas Miller '73 Professor of Law, Hastings
Samantha Buckingham, Director of Juvenile Justice Clinic, Loyola
Professor Bill Hing, Director of Immigration & Deportation Defense Clinic, USF
Deborah Archer, Associate Professor of Clinical Law, NYU
Jennifer Chacón, Professor of Law, UCLA Law
Sara Mayeux, Vanderbilt, Asst. Prof. of Law, Asst. Prof. History
Sharon Dolovich, Professor of Prison Law & Policy, UCLA Law
Song Richardson, Dean & Chancellor’s Prof. of Law, UC Irvine
Eric Miller, Prof. of Law and Leo J. O'Brien Fellow, Loyola
Daniel S. Medwed, Northeastern, University Distinguished Professor of Law and Criminal Justice
Robert J. Pushaw, James Wilson Endowed Professor of Law, Pepperdine
Professor Mark Osler, Univ. St. Thomas School of Law, Professor and Robert and Marion Short Distinguished Chair in Law
Michael Vitiello, Distinguished Professor of Law, McGeorge
Ronald Sullivan, Clinical Professor of Law and Director of Criminal Justice Institute, Harvard
Professor Eve Brensike Primus, Univ. Michigan Law, Professor of Law
James Forman Jr., Skelly Wright Professor of Law, Yale
Chris Roberts, Univ. of Texas, Clinical Prof; Director, Criminal Defense Clinic
Katy Dyer, Univ. of Texas, Clinical Professor, Criminal Defense Clinic
Ranjana Natarajan, Univ. of Texas, Clinical Professor; Director, Civil Rights Clinic
Anthony C. Thompson, Professor of Clinical Law, NYU
Kim A. Taylor-Thompson, Professor of Clinical Law, NYU
Raoul D. Schonemann, Univ. of Texas, Clinical Professor
Lee Kovarsky, Univ. of Maryland, Prof. of Law
Angela J. Davis, American University, Washington College of Law, Professor of Law
Randy Hertz, Vice Dean, Professor of Clinical Law, and Director of Clinical and Advocacy Programs, NYU
Vincent Southerland, Executive Director of Center on Race, Inequality, and the Law, NYU
Dionne Gonder-Stanley, Assistant Clinical Professor and Supervising Attorney for the Criminal Defense Clinic, North Carolina Central University School of Law
Edward Telfeyan, Professor of Lawyering Skills, Director, Moot Court Program, Co-Director of the Center for Advocacy and Dispute Resolution, University of the Pacific McGeorge School of Law
Joanna Schwartz, Vice Dean for Faculty Development & Professor of Law, UCLA
Jonathan Glater, Professor of Law, UC Irvine
Ellen Kreitzberg, Director of Center for Social Justice & Public Service and Professor of Law, Santa Clara University School of Law
Richard Rosen, Director of Clinical Programs & Associate Dean, UNC School of Law
Justin D. Levinson
Jan Costello, Professor of Law, Loyola Law School Los Angeles
Yxta Maya Murray, Professor of Law and William M. Rains Fellow, Loyola Law School Los Angeles
Kathleen Kim, Professor of Law, Loyola Law School Los Angeles
Paul T. Hayden, Thomas V. Girardi Professor of Consumer Protection Law, Loyola Law School Los Angeles
Malcolm M. Feeley, Claire Sanders Clements Dean’s Professor of Law, University of California, Berkeley School of Law
Ian Haney López, Earl Warren Professor of Public Law, Director, Racial Politics Project, Haas Institute for a Fair and Inclusive Society, University of California, Berkeley Law
Claudia Polsky, Assistant Clinical Professor of Law; Director, Environmental Law Clinic, Berkeley Law
Jeff Selbin, Clinical Professor of Law; Faculty Director, Policy Advocacy Clinic, Berkeley Law
Jennifer Urban, Clinical Professor Law; Director, Samuelson Law, Technology & Public Law Clinic; Co-Director, Berkeley Center for Law & Technology, Berkeley Law
Kenneth W. Simons, Chancellor's Professor of Law, UC Irvine
Marc Falkoff, Associate Dean for Academic Affairs & Professor of Law, Northern Illinois University
Jim Marcus, Co-Director, Clinical Professor, University of Texas at Austin School of Law
Christopher Hawthorne, Clinical Professor of Law and Director, Juvenile Innocence & Fair Sentencing Clinic/Loyola Law School
Justin D. Levinson, Professor of Law, University of Hawaii
Joceyln Simonson, Associate Professor, Brooklyn Law School
Professor Theodore P. Seto, Hon. Frederick J. Lower, Jr. Chair and Professor of Law/Loyola Law School
Laura Gomez, Professor of Law, UCLA School of Law
Sheri Lynn Johnson, James and Mark Flanagan Professor of Law, Cornell Law School
Professor Margaret M. Russell, Associate Provost, Santa Clara University
Charles J. Press, Clinical Professor of Law, Director, Actual Innocence Clinic, University of Texas at Austin School of Law
Beth A. Colgan, Professor of Law, UCLA School of Law
Ingrid Eagly, Professor of Law, Faculty Director, David J. Epstein Program in Public Interest Law and Policy, UCLA School of Law
Gerald F. Uelmen, Professor of Law and Dean Emeritus, Santa Clara University School of Law
Harry M. Caldwell, Professor of Law & Director of Trial Advocacy, Pepperdine Law School
Maneka Sinha, Assistant Professor of Law, Maryland Carey School of Law
Máximo Langer, Professor of Law, UCLA School of Law