On May 29, 2007, Luis Alberto Hernandez borrowed his aunt's gray Honda sedan to stake out the parking lot of the Hayward medical center where his estranged girlfriend worked. In the weeks prior, Hernandez had been leaving threatening messages on Rose Goulart's phone, and she had made her two teenage children walk convoluted routes to and from school so their father wouldn't discover where she lived. "You can't hide from me," Hernandez had told her once on the phone; "I'll find you." That morning, he did.
When Goulart arrived, Hernandez pulled out of the parking spot where he'd been lurking and blocked her with his car. He got out, approached her, and, after a brief exchange, lunged at Goulart, stabbing her repeatedly in the abdomen with a sharpened screwdriver in front of almost a dozen witnesses. Goulart was rushed to Eden Trauma Center, where she was pronounced dead. Hernandez was taken into custody by the police.
Although his crime was one of hundreds of murders to occur in Alameda County that year, it was unique for another reason. On April 27 of this year, the District Attorney's Office indicated that it would seek the death penalty for Hernandez, the first time since 2006 that Alameda County prosecutors have sought that punishment in any case. Yet, evidence suggests that trying to send Hernandez to death row will be expensive for the taxpayers of Alameda County. Although they are disputed by some prosecutors, studies done by the American Civil Liberties Union suggest that the cost of seeking death for Hernandez should be at least $1.1 million more expensive than seeking his permanent imprisonment.
"A lot of people think the death penalty is cheaper, but that's a myth," said Natasha Minsker, death penalty policy director for the American Civil Liberties Union of Northern California and the head of the Alameda County Coalition for Alternatives to the Death Penalty. "We want to raise awareness about the costs because we think this is an issue people can find common ground on."
In this time of unprecedented fiscal crisis, the ACLU is making such costs the central focus of its latest campaign. On June 28 this year, the organization, in partnership with the Budget Justice Coalition and the Drug Policy Alliance, launched an effort to get state legislators and the governor to abolish the death penalty. A two-and-a-half minute video featuring a retired FBI agent, a former prosecutor, and the sister of a murder victim calling for an end to the death penalty began making the rounds on the Internet. The coalition claims that such prosecutions cost Californians more than $1 billion over five years.
With the state legislature currently deadlocked on how to close a $19 billion budget gap, focusing the public's attention on the cost of the death penalty may be a smart strategy. Typically the topic is debated on moral or other grounds.
Minsker said it's the first time the ACLU has made cost the primary focus of an effort to abolish the death penalty. Historically, the organization has drawn attention to wrongful convictions, systematic unfairness, and the questionable morality of state-sanctioned execution. In a sense, these earlier battles laid the groundwork for the current one. Mixed victories for both sides — reforms for the opponents and yet a still-legal death penalty for supporters — have resulted in a system that pleases neither, while sapping funds at a rate that should alarm anyone paying attention.
California's death penalty system is a failure by almost every measure. Due to a lack of qualified lawyers and a backlog in the courts, the average length of time from sentencing to execution is 25 years — more than anywhere else in the country. According to the California Commission on the Fair Administration of Justice — which was tasked to study California's death penalty and suggest reforms — in 2008 California spent more than $116 million housing death row inmates and passing them through a machine whose final mechanism is broken. Since 2006 there has been a moratorium on executions in California until the US Ninth Circuit Court of Appeals approves the state's execution procedure. Until that occurs, the state is likely to keep shelling out the extra $90,000 a year that the ACLU says it costs to house each of the state's 705 death row inmates.
"California's death penalty is dysfunctional," the commission's report concluded. And despite disagreement over why this is so and the feasibility of fixing it, most players in the death penalty system agree with that assessment.
The ACLU's solution is to replace the death penalty with life imprisonment without the possibility of parole. Death penalty opponents say permanent imprisonment is a solution that keeps society safe and satisfies the retributive urge of victims' families while also costing taxpayers drastically less — about $11.5 million per year, according to the commission's report.
But abolishing the death penalty appears to be a pipe dream for now. According to a recent Field Poll, 70 percent of Californians support the death penalty, although a small plurality — 42 to 41 percent — prefer permanent imprisonment to death when given the choice. This level of support for the death penalty isn't a record — that would be 83 percent, in 1986 — but it's a substantial increase from its ten-year low of 58 percent in 2002, according to a Los Angeles Times poll.
Nonetheless, Californians' strong endorsement for the death penalty should not necessarily be taken as approval of the way death sentences are currently sought or handed out, said Field Poll Director Mark DiCamillo. "That 70 percent majority — they're not all thinking about the death penalty the same way," he said. "Some people want to reserve it for the most extreme cases, the 9/11 hijackers and that kind of thing."