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Diane Bellas, the Alameda County public defender, agrees that death penalty cases cost more. "I think the ACLU's figure about the added cost of charging death is accurate," she said.
But whether or not the ACLU's accounting is accurate doesn't matter to some death penalty supporters. "I'm not sure there is any way to know the right answer, and in any case it is a distraction from the main issue," wrote University of California at Hastings Law Professor Rory Little. "Folks who oppose capital punishment don't oppose it based on cost; they feel it is immoral and barbaric. This is not a debate that will be decided on cost figures."
Little's point is that one arises over and over in conversations with death penalty supporters: If the death penalty is the right thing to do, its cost is almost beside the point. "No matter what the cost, I would support the death penalty," said Chris Breen, sergeant at arms for the San Francisco Police Officers Union.
Supporters of the death penalty assert that no matter how hard opponents try to make it about cost, morality will always take priority. "The death penalty is a philosophical choice, ultimately," said Steve Cooley's spokesman Kevin Spillane.
The ACLU, however, is trying to change that.
On a Monday night early in July in downtown Oakland, the Alameda County chapter of the ACLU hosted a three-part workshop led by Minsker. After an info session about suspension and expulsion in public schools, she stood to address the dozen or so gathered attendants munching Domino's pizza and sipping soda.
"We came together in 2008 when we realized that Alameda County was the most aggressive death-seeking county in Northern California," she said.
In terms of its historical support for the death penalty, Minsker said Alameda County is more similar to Riverside or San Bernardino than to its neighbor San Mateo across the bay, which hasn't had a death sentence this decade — although the evidence suggests that this has changed somewhat in the past three years.
"But we have the power to change the death penalty on a local level," Minsker said, "because there is one person who decides, who is fully empowered to seek or not seek death, and we can let District Attorney Nancy O'Malley know that we don't want it."
Minsker led the group through an exercise looking at common myths about the death penalty and reasons to replace it. Upon being informed that the death penalty was more expensive than life imprisonment, a man in front shot up his hand.
"That will be the winning argument," he said. "I know people who couldn't care less about the murderers on death row, but the cost, that will persuade them."
At the moment, the issue of cost seems pretty inextricable from the larger debate about the death penalty. But ardent opponents like Judy Kerr, who appears in the ACLU video, see the cost argument as crucial to breaking through the calcified opinions of its supporters. She has a rare stake in the matter; in 2003 her brother, Robert Kerr, was abducted from his Washington state apartment and murdered. Despite years of searching, his killer was never found. Kerr has channeled her grief into work as a spokesperson for California Crime Victims for Alternatives to the Death Penalty.
"I'm not here to say the death penalty is morally right or morally wrong," she said. "I'm just saying it's not working for me as a murder victim's family member. So many want this to be a moral issue, but people are so entrenched in their opinions that there's no way to go forward if you use that as an argument."
So Kerr now prefers to focus on the opportunity costs of pursuing the death penalty. She's frustrated that her brother's killer has never been caught. The dollars spent seeking death could have been used to hire homicide detectives who might have caught her brother's killer, or bolster the $50 million from the Victims' Compensation Fund that was slashed from the state budget in 2009. The Alameda County Coalition for Alternatives to the Death Penalty points out that the estimated $14.3 million spent seeking death in Alameda County between 2000 and 2009 could have funded the salaries of "31 additional experienced high school teachers per year; or 29 additional homicide investigators per year."
It doesn't seem right to ask the members of Rose Goulart's family whether they want the death penalty for Luis Hernandez or whether they would rather have those resources invested in additional services for crime victims, but the Alameda County District Attorney's Office has made the decision for them.
Hernandez' defense attorney, Deborah Levy, said that her client doesn't deserve the death penalty. "Every time I've seen him, his head has been down in his knees," she said. "I've been an attorney going on thirty years, and I have never seen a client more remorseful. He's devastated. He was on suicide watch at the jail. I don't think this should be a death penalty case. And I plan to go to Ms. O'Malley and the death committee asking, begging them, to please reconsider the death decision."