Impact of Death Penalty in Santa Clara County Report

County of Santa Clara
Office of the Clerk of the Board of Supervisors
County Government Center, East Wing
70 West Hedding Street
San Jose, California 95110-1770
(408) 299-5001 FAX 298-8460 TDD 993-8272
Web site http://claraweb.co.santa-clara.ca.us/clerk/clrkhome.htm

SANTA CLARA COUNTY HUMAN RELATIONS COMMISSION (HRC)
IMPACT OF DEATH PENALTY IN SANTA CLARA COUNTY REPORT
(Version 5, 01/11/2012)

Prepared by: Mary Cheryl B. Nacionales, MPH, MBA
2010-12 Human Relations Commission Chair

Contributors:

• Kelly Estes, 2011-12 HRC Justice Committee Chair
• Marcel Pajuelo-Schwartz, HRC Justice Committee
• Narendra Pathak, HRC Justice Committee
• Holly Ullman, HRC Justice Committee
• Johnny Khamis, HRC Past Chair
• Professor Ellen Kreitzberg, Santa Clara University Law School
• Michael Donohoe, Santa Clara University Graduate Fellow
• Santa Clara County Coalition for Alternatives to the Death Penalty
o Gerard McGuire
o Terence McCaffrey

TABLE OF CONTENTS

I. Foreword...........................................................................................................................................2

II. Process to Review Impact of Death Penalty in Santa Clara County ...........................................3

III. Summaries of Testimonies..............................................................................................................3

IV. Data Review ......................................................................................................................................5
a. State
b. County

V. Pro & Con Fact Sheet.......................................................................................................................7

VI. Conclusion........................................................................................................................................9

Appendix
A. 9-28-2010 Letter from President Dave Cortese
B. Testimonies
C. Santa Clara County Coalition for Alternatives to the Death Penalty (SCCCADP) Factsheet
D. Excerpt of California Senate Bill 490
E. References

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I. Foreword

Thirty-five years ago, the Santa Clara County Human Relations Commission was established to serve as
“an advocate for human rights issues within Santa Clara County and works to promote respect for diversity
and inclusion of all people…following the spirit of the Universal Declaration of Human Rights.”

The opportunity to review the local impact of death penalty cases prosecuted in Santa Clara County this
past year is one of the multitude of critical community issues that the Human Relations Commission is
challenged to fulfill its mission. On September 28, 2010, President of the Board of Supervisors Dave
Cortese charged the Human Relations Commission and its Justice Review Committee to conduct a
documented study of how the existence of the death penalty shapes Santa Clara County (see Appendix for
copy of Letter).

Gerard McGuire and Terrance McCaffrey of the Santa Clara County Coalition for Alternatives to the Death
Penalty (SCCCADP), Professor Ellen Kreitzberg (Santa Clara University School of Law) and Santa Clara
University Graduate Fellow Michael Donohoe who substantially contributed to this report by providing
background data, summarizing testimonies, and sharing invaluable feedback. Ms. Michelle Pelayo-Osario
(Policy Aide to President Cortese) and Marilyn Anderson (Clerk of the Board Supervising Board Clerk)
offered guidance to ensure we followed a transparent and purposeful process. Former Commissioners and
Justice Review Chairs Tak Chang and Junaid Islam were critical in launching the review of this important
and sensitive issue. The Office of Human Relations staff, especially Delorme McKee-Stovall, Noemi
Alvarado, and Mary Jane Solis, facilitated administrative logistics minimizing bureaucratic hindrances and
maximizing community participation. I especially commend our current Justice Review Committee Chair,
Kelly Estes, for diligently leading her committee to collect information from both sides of the issue and
coordinating the October 13th Public Hearing.

Finally and most importantly, we are grateful to the community and key stakeholders representing law
enforcement, judicial system, faith organizations, and victims’ family members, for sharing their wisdom,
experiences, and passion regarding the impact of the death penalty in Santa Clara County.

Mary Cheryl B. Nacionales, MPH, MBA
Human Relations Commission Chair

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II. PROCESS TO REVIEW IMPACT OF DEATH PENALTY IN SANTA CLARA COUNTY

During a 12-month period 20 individuals and organizations were invited by the Human Relations
Commission to share professional experience and opinion as it relates the impact of the Death Penalty in
Santa Clara County. Invited testimonies were integrated as part of the regular Human Relations
Commission meeting throughout the past year culminating Public Hearing held on October 13, 2011 where
11 invited individuals and 10 general public provided verbal or written testimony.

The commission focused on following three areas:
 Identify costs related to death penalty from a county perspective;
 Explore the arguments for and against the use of death penalty; and
 Collect input from diverse stakeholders.

In addition to collecting testimony from experts and the general public, the HRC Justice Review Committee
met monthly to review findings working closely with community representatives, including the Santa Clara
County Coalition for Alternatives to the Death Penalty and Santa Clara University Law School. Findings and
data collected were shared with the HRC Executive Committee to prepare the report. The final report will
be presented to the full Human Relations Commission for approval in December 2011.

President of the Board of Supervisors Dave Cortese’s office was periodically updated on the Commission’s
progress regarding the study.

III. SUMMARY OF INVITED TESTIMONIES

Preamble
This document is issued for the purpose of summarizing the essence of invited speaker testimony collected
during the Death Penalty Forum conducted at the Santa Clara County Board Chambers on Thursday,
October 13, 2011.

Offering testimony in support of their respective position(s) on the Death Penalty were Darryl Stallworth
(former Alameda County Deputy DA), Deborah J. Ross (Daughter of Homicide Victim), Claude Ezran
(former Chair of Palo Alto, HCR), Michael Marshall (former Prison Warden), and Father Brendan McGuire
(Catholic Diocese – San Jose, CA),

Additional testimonies presented prior to and outside of the Death Penalty Forum conducted October 13,
2011 included those offered by Professor Ellen Kreitzberg (Santa Clara University School of Law), Richard
Konda (Asian Law Alliance, Attorney), The Honorable LaDoris Cordell (Santa Clara County Superior Court
Judge), Mary Kay Rafferty (Mother of Homicide Victim), Brian Welch (SCC District Attorney’s Office), and
Marc Class (Founder of Polly Class Foundation).

Specific details of speakers and/or contributory testimonies are captured in the appendix of this report.

Summary of Testimony
The invited speakers and participants discussed their respective views and opinions pertaining to the
subject of the Death Penalty.
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Testimonies from surviving family members of homicide victims and the fiscal perspective associated with
the Death Penalty serve to clarify that two points are at issue - one Moral and one Fiscal. For those who
believe that capital punishment should be abolished, the view on morality is one of compassion for the poor
upbringing a convicted killer endured as a young person, having often witnessed violence themselves. It is
also one of understanding that “an eye for an eye” may not yield the satisfaction for families. The
testimonies from victims’ families pointed out that they are still left with emptiness in their hearts continues
despite death of the one who caused that pain.

Another perspective shared from relatives and individuals is the guilt that hey feel for contributing to the
death of another human being, sometimes equating their actions with that of the convicted murderer.

Finally, the testimonies expressed the concern that many innocent people were and will be placed on death
row puts more burden on those involved in the process. Furthermore, the question was raised if the justice
system can endure the consequences of these mistakes. Once these moral dilemmas are presented, the
decision to put someone to death becomes more complicated.

Alternatively, the moral argument of testimonies advocating for the death penalty’s continued existence is
one of justice. These individuals shared their experience of the painful repercussions of the loss of a loved
one. They expressed their frustration that the person convicted or suspected of the heinous crime is still
living while their loved one’s life was cut dramatically short. For these individuals, they believe that the
justice system has the right and the duty to punish these offenses with death rather than consider the
reasons why someone killed as a defense of their actions.

For these contributors, their loved one and their family has a right to justice and that justice will not be
served until the killer is put to death. While these testimonies shared that no one should advocate for the
execution of innocent people, the likelihood of innocents being executed with the existence of today’s
technology is slim and that media (such as fictional television programs) has altered public perception to
believe that more innocent men and women exist on death row than there actually are.

In the legal arena, certain offenses are more apt to be considered for death penalty as the special
circumstances involved make them eligible for capital punishment. However, this decision is handled by the
justice system, allowing for emotional and moral consideration of a crime, but handled with care in terms of
the severity and consequences of such a decision.

Proponents for both sides of the issue also presented arguments for fiscal ramifications of the continuance
of capital punishment. Opponents of capital punishment presented detailed facts of both state-wide and
county level costs that are ultimately funded by tax payers as the housing of a death row inmate is almost
double that of an individual sentenced to life in prison as this individual requires specialized living quarters
and other necessities. The testimonies pointed out that his is money that could be better spent on
preventing crime by utilizing the money saved for the funding of after-school sports and education,
alternatives to a life of crime for potential offenders.

An initiative that is considered for the upcoming November 2012 election proposes that the money saved
by abolishing the death penalty in the State of California will be utilized to fund education and law
enforcement in an effort to deter crimes before they occur so that murders may decrease throughout the
state once alternatives to criminal activity are available in a person’s life. While this may not prevent all
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capital crimes from occurring, it is noted as a step in the right direction by many former death penalty
advocates.

The fiscal argument held by proponents of the death penalty is that the appeals process is too lengthy,
especially considering today’s technology, which if decreased could actually save the state money in the
long run. It is also believed that many of the costs associated with the death penalty have been
overestimated by opponents of capital punishment to make many Californians believe that it is too costly to
seek the moral justice many families desire.

While these testimonies were concise and appreciated, it is clear that many questions still remain for both
sides.

IV. DATA REVIEW
A. State1,2
1. $173 million additional spending in 2010 on the death penalty in California, which includes:
a. $29 million in trials - Death penalty trials and investigations cost nearly $1 million more
b. $72 million in housing – Housing on death row costs at least $100,000 more
c. $72 million in appeals – Funding for post-conviction prosecution and defense attorneys
costs $100,000 per death row inmate per year

2. Reasons for the difference in costs
a. Death Penalty Trials:
When a District Attorney decides to seek the death penalty rather than the alternative
punishment of life without the possibility of parole, the county is forced to pay for a trial that is
likely to cost 20 times more than a trial for life without the possibility of parole.
 Lengthy legal process: Death penalty trials require a long, deliberate process to guard
against a fatal miscarriage of justice.
 Double trial: Two trials are required, a regular trial and “penalty” trial. This requires more
work by the prosecution team, and more attorneys, investigators, and experts.
Furthermore, the defense must double up, with a minimum of two attorneys and
investigators, plus experts.
 Special jury and special judge: A specially qualified judge and jury must be selected.

b. Death Row Housing:
California rules require that death row inmates be housed alone instead of 2-3 to a cell and
enforce a higher level of security than a prisoner sentenced to life without the possibility of
parole. It is estimated that the California Department of Corrections and Rehabilitation spends
an additional $100,000 per year, per inmate to house someone on death row, which is three
times the costs.

1 Santa Clara County Coalition for Alternatives to the Death Penalty (SCCCADP)
2 SAFE (Savings Accountability and Full Enforcement) California

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c. Death Penalty Appeals:
In each death penalty case there are mandatory appellate reviews, causing costly and nearly
endless appeals. Because each case is different, it is difficult to arrive at a single cost estimate
per case, however, in examining the budgets of the state agencies that handle these cases,
including: Office of the State Public Defender, the Habeas Corpus Resource Center, the
California Appellate Project, the Office of the Attorney General, and the California Supreme
Court, we know that in 2010, we spent $58 million total on reviewing death penalty cases.

Additional costs can be extrapolated based on information from an article by Justice Arthur L. Alarcon and
Paula M Mitchell: “Executing the Will of the Voters?: A Roadmap to Mend or End the California
Legislature’s Multi-Billion Dollar Death Penalty Debacle.”

The paper founded on belief that the electorate has a right to demand an accounting of the real costs
associated with the death penalty. It also advocates either provide enough funding for an effective system
or abolish the death penalty completely:
 “Continued funding of this broken system in California is occurring at the expense o f other important
criminal justice and public safety considerations. “
 “California spends more on staffing the California Department of Corrections and Rehabilitation
(CDCR) than any of the state’s other 150 department- $4.78 billion in 2009- obtaining data concerning
how much the administration of California ‘s death penalty actually costs state and federal taxpayers
has not been easy.”

Justice Alarcon recounts his difficulty in obtaining data citing the refusal of state and federal officials to go
on record concerning the cost of the death penalty. Alarcon cited government officials who stated that costs
associated with the death penalty are not collected, tracked or reported to anyone.

Justice Alarcon also attempted to calculate the pre-trial and trial phases of the death penalty in California.
He estimates “California taxpayers have spent approximately $1.94 billion on pre-trial and trial costs
associated with the prosecution of approximately 1,940 death penalty trials conducted since 1978.” The
following are other efforts at identifying death penalty costs:
 California Commission for the Fair Administration of Justice: death penalty trials last longer and cost
considerably more than non-death penalty trials.
 Legislature’s Joint Committee on Prison Construction and Operation reported in 1992 that an ‘average
death penalty murder trial can cost more than six times the $93,000 spent on non-capital murder
cases. In 1993 the estimate cited that capital cases “often cost 10-20 times more than murder trials
that don’t involve the death penalty.
 Study by David Erikson (1993) Capital Punishment At what Price, An Analysis of the Cost Issue in a
Strategy to Abolish the Death penalty concluded a death penalty trial was at least “1.2 million more
than a comparable murder trial pursuing life in prison without parole.
 San Diego Union Tribune conducted a study and reported that ‘defense costs alone in half of the cases
were $1 million more’. The San Diego District Attorney’s Office release figures in some of the same
cases that reported additional trial costs “between $255,000 and $979,000 per case.”

B. County
The exact financial impact of the death penalty in Santa Clara County is not clear at this time based on
inquiries to the offices of the Santa Clara County District Attorney, Public Defender, and Sheriff. However,
based on HRC Justice Review Committee deliberation and previously cited article by Justice Alarcon; the
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following are potential trial related cost items incurred by our county:
 Typically two death penalty qualified attorneys per side.
 Death penalty trials require that defendant’s counsel obtain several investigators.
 Defense typically employs multiple experts.
 Jury selection takes much longer.
 Death penalty cases involve two trials -- the second trial only addresses the issue of punishment.
 Death penalty trials a court reporter prepare and certify a daily transcript of all proceedings.
 Housing the defendant in the county jail.
 Health care costs of defendant while housed in county jail.
 Transporting defendant during trial.

Furthermore, post-trial costs are distributed statewide to all California taxpayers. Therefore, Santa Clara
county taxpayers are paying post-trial costs from those who are sentenced to death in LA County,
Riverside County and Orange County. These counties are responsible for 48% of the death sentences in
the state.

V. PRO & CON FACTSHEET3
A. Summary of Arguments FOR Death Penalty
The death penalty is appropriate for egregious first degree murders:
The state has the right and the duty to invoke the ultimate punishment for the most extremely cruel
murders. These are egregious first degree murders either involving multiple victims or the intentional
infliction of a high degree of suffering on the victim at the hands of the perpetrator.

The death penalty treats the defendant as a free moral actor:
A defendant has control of his or her own destiny for good or for ill. The death penalty does not treat the
individual as a creature with no moral sense.

The death penalty does not establish itself objectively as cruel and unusual:
Whenever a method of execution has been challenged in the Court as cruel and unusual, the Court has
rejected the challenge. Our society has steadily moved to more humane methods of carrying out capital
punishment.

The death penalty will deter murder:
People fear nothing more than death. Therefore, nothing will deter a criminal more than the fear of death
and life in prison is less feared. Murderers prefer to be sentenced to life in prison instead of death.
Murderers must be executed as long as it is merely possible that their execution protects citizens from
future murder.

The death penalty protects society by restoring just order:
Deserved punishment protects society morally by making the wrongdoer pay a price equivalent to the harm
he has done. This is retribution, not to be confused with revenge. In retribution the spur is the virtue of
indignation, which answers injury with injury for public good.

3 ProCon.org. "Should The Death Penalty Be Allowed?" DeathPenalty.ProCon.org. ProCon.org, 13 Apr 2011. Web. 22 Nov. 2011.

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No credible evidence to show that any innocent persons have been executed:
Our justice system demands a higher standard for death penalty cases. However, the risk of making a
mistake with the extraordinary due process applied in death penalty cases is very small.

Over time death penalty costs are less costly:
Without doubt, up front costs of the death penalty are significantly higher than for equivalent life without
parole cases. Over time, equivalent life without parole cases can cost $1-4 million more than equivalent
death penalty cases.

The death penalty is not discriminatory:
The fact that Blacks and Hispanics are charged with capital crimes out of proportion to their numbers in the
general population may mean that Blacks and Hispanics commit capital crimes out of proportion to the
general population. Poverty breeds crime, and if the poor are disproportionately represented as Blacks and
Hispanics, then it must follow that they will be “overrepresented” among criminals.

The public defender system is formidable in death penalty cases for the poor:
The past few decades have seen the establishment of public defender systems that rival some of the best
lawyers retained privately. Many prestigious law firms in large cities across America provide pro-bono
counsel in capital cases and offer partnerships to lawyers whose sole job is to promote capital defense for
the poor.

B. Summary of Arguments AGAINST Death Penalty
The death penalty is irreversible:
The possibility of wrongful conviction can never be eliminated. The error cannot be corrected once the
defendant has been executed.

The death penalty is cruel in theory and unfair in practice:
It is based on primitive concept of revenge and undermines our current socially based inhibitions against
the use of force. All methods of implementing the death penalty are repugnant and inherently cruel.

Most other countries in the civilized world have dispensed with the death penalty:
In its failure the outlaw the death penalty, the United States is in the company of tyrannical dictatorships
such as Iran, Saudi Arabia, Yemen, China, and North Korea.

The death penalty is not a deterrent to murder:
Statistically, it has been shown proven that homicide is not reduced in death penalty states. Most criminals
rely on not getting caught. Effective law enforcement ultimately will be the best deterrent to crime of all
kinds, including homicide.

Being caught and imprisoned for life is a severe enough penalty to deter any rational person from crime. In
some cases, the death penalty actually encourages crime, as in the case of political terrorists, who act in
the name of an ideology that honors martyrs.

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Seeking the death penalty can result in the a guilty perpetrator going free:
As the recent Casey Anthony case illustrates, juries are less likely to find a defendant guilty when the result
is a matter of life or death. Death penalty cases attract top-talent high profile attorneys who are able to
successfully argue against defendants conviction.

The death penalty cannot “balance the scales” for families of victims and often prolongs their pain:
No penalty can bring the victim back to life. The death penalty, with its extremely lengthy delays between
the sentence and the execution, deprives the victim’s family of closure as opposed to a timely sentence to
life without parole.

The death penalty is enormously costly as opposed to the penalty of life imprisonment without
parole:
Costly trials, lengthy appeals, and housing on Death Row, make the process enormously costly. The
current cost to California taxpayers of implementing the death penalty is $184 million per year. Housing on
Death Row costs $90 thousand a year per inmate over and above the cost of housing among the general
prison population. Since the death penalty was reinstated in 1978, California has spent $4 billion to carry
out a total of only 13 actual executions.

The death penalty is applied unfairly and disproportionately based on race and ethnicity, and
economic status:
People of color receive the death penalty far more frequently than whites, particularly when the victim is
white. Poor defendants, who cannot afford to hire private attorneys, are far more likely to be sentenced to
death.

VI. CONCLUSION

The death penalty issue will continue to evoke philosophical, intellectual, and emotional debate. For Santa
Clara County this report is only the beginning. The Human Relation Commission hopes that his report will
offer fodder for further exploration by the Santa Clara Board of Supervisors and the community to:
 Conduct a detailed cost analysis of the impact of death penalty trials for Santa Clara County
 Recommend Santa Clara County Legislative Committee to assess Board of Supervisor support for
California State Senate Bill 490 (See appendix for bill excerpt) when re-introduced by Senator Loni
Hancock.
 Assess Board of Supervisor support regarding community driven a 2012 ballot initiative seeking
alternatives to death penalty.

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APPENDIX
A. September 28, 2010 Letter from President Dave Cortese

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B. Testimonies

1. Invited Testimonies (October 2010 – October 2011)
Claude Ezron (Chair, Palo Alto Human Rights Commission)
* Not speaking on behalf of PAHRC, but as a private citizen.
· Philosophical point of view
o Who are you?, Who are we? Who are we as:
§ Individuals? Society? Nation? or Members of mankind?
o What do we want to become?
· Judge who you are with the company we keep
o US is among top executioners in world:
1. China, 2. Iran, 3. N. Korea, 4. Yemen, 5. US, 6. Saudi Arabi, 7. Lybia,
8. Syria, 9. Bangladesh, 10. Somolia, 11. Sudan
a. Based on 2010 executions
b. 46 executions in 2010
c. 110 Death Sentences handed down in 2010

Are we proud to be in such company?
With countries that are against of democracy and human rights?
OTH: All European countries abolished DP 20 – 30 years ago
Beyond Europe 70% of countries around the world have abolished DP (or stopped using it)
Examine the trajectory of humankind: Dawn of humanity to present time
Trend towards less violence
§ Abraham and end of human sacrifice
§ Skapegoating in archaic societies where victims were innocent
§ Rule of law established and institutions
§ International institutions
§ Use diplomacy to resolve conflicts
§ War is useless
· US is most powerful nation on earth and we can’t win a war
Practice of DP must be examined in light of this evolution of humanity
DP is rooted deeply in human’s violent origin/past, along with rape, torture and war
Barbaric way for society to exact revenge
Again: Who are we?
o Firmly rooted in dark ages, or
o Forward looking understanding the message DP conveys to society

Humanity’s destiny is to continue its journey toward greater wisdom and peace, then CP is heavy
baggage in need of being jettisoned
o DP is holding US back on journey towards greater wisdom & peace

2/3 of citizens in favor of DP
US is closer in spirit to nations that engage in stoning than our allies in Europe
Asking to go against the flow and show leadership and play a role in overturning the outdated, barbaric
and shameful practice
Handout published in Mercury News written a few years ago: “The Injustice of Death Penalty to Our
Community”
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Pastor Brendan McGuire (Catholic Diocese of San Jose, CA)
Thank you Commissioner. My name is Brendan McGuire. I am a Pastor of Holy Spirit Parish and I’m a
Roman Catholic Priest. Also, I am a Vicar General of the Diocese of San Jose, representing the Bishop’s
office.

I come before you not only as a Catholic Priest but as a concerned citizen and I want to speak to you from
my own experience of dealing with victims of crime. I also want to speak to you from the prospective of one
who visits people who have committed those crimes. In my experience, “…an eye for an eye” leaves
everyone blind. The reason why I want to say that is one of the things that I deal with a lot in my parish and
in the people I deal with is anger. Anger and unforgiveness! And what I suggest to you is that anger
seems to be the motivation for a death penalty. Often we are outraged and very angry over the heinous
crimes that occur. And because of the anger, we seek revenge; we seek atonement and some measure of
what we perceive as justice but I will go back to it—an eye for an eye leaves us all blind.

In dealing with anger, I have come to the conclusion that when we deal with it in a constructive manner it
leads naturally to forgiveness. When we do not deal with it in a constructive manner it leads to vengeance
and we most often demand some form of revenge.

Anger is real and there is actually nothing wrong with anger. Anger is a neutral emotion. Despite over the
years some members of the Catholic Church have said anger is wrong; there is really nothing wrong with
anger. It is what we do with anger that makes it right or wrong. As a priest I deal with anger and try to
move people to forgiveness. People forgive in three different categories of people.

The hardest person to forgive and people find it the hardest to forgive is actually themselves. This type of
anger I deal with inmates. I deal with them monthly and I give them talks on anger and forgiveness to be
able to move past that so they can forgive themselves and to move back to a healthy person again.

We deal with this in our own ordinary lives too. We find it very hard sometimes to forgive ourselves for
ordinary mistakes but when it comes to heinous or very difficult and hideous crimes the individual often will
return to that behavior and dump on themselves and create a cycle of violence inside themselves where
they will actually take it out by alcohol abuse and other forms of drug abuse and perpetuate what is a very
difficult situation in their own lives.

The other person who is very hard to forgive is when it has happened to some of our own family, not us.
Because when a crime happens to our child or parent or sibling or best friend, we rise up in anger and we
demand revenge. We want some accountability and that is where we issue the “eye for an eye”. The
problem is that it really does not deal with the anger because we are still angry after the person is dead.
There have been countless reports handed over the times for those cases. The part that is ironic and may
seem the strangest to this Commission—is the person who finds it the easiest to forgive is actually the one
with whom the sin, or the grievous offense has been perpetrated against. They find it easiest to forgive—
not easy—I didn’t say easy. I said easiest because they find that they will not get past the pain until they
forgive. And when they forgive, then they can be set free from their own pain.

I submit to the Commission that when we execute an individual, we imprison a new individual. And that
individual is the person who demands the death penalty because now we have set them in their own prison
of unforgiveness and they remain there for life. So the life sentence ironically gets twisted back on the
person who demands revenge whether that is a sibling, a parent, a child, or a close friend.
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The person who is the most unreasonable in my experience to deal with when it comes to anger and
revenge is the person who has very little to do with the crime itself but demands revenge anyway and the
reason that is because their anger has nothing to do with the perpetrator himself or herself. It is transferred
anger. It is transferred anger or associates anger but it has very little to do with the particular crime at
hand. They have not been affected personally by it but they have loaded all their own grievances, all their
own pain onto this particular incident and demands revenge for something that cannot be produced. So as
a result, they also lock themselves into another prison that they remain in for the rest of their lives because
unforgiveness is a mental prison that we cannot get out of until we allow somebody to set us free from
being unforgiving.

Now, this is not just a religious belief although I do believe it completely as a religious person. I think you
can tell from my own passion and conviction I really believe this teaching of our church as Catholics. But it
is also scientifically proven and it will behoove the Commission to take some insights from the Stanford
Forgiveness Project who has scientifically proven that forgiveness works. That forgiveness heals not just
an individual but literally forgiveness will bring about an actual healing in the community. Something I
submit that the death penalty can never do.

Now the Stanford Project is headed up a Dr. Fred Luskin. He has scientifically proven that forgiveness is
good for your health. I suggest to this Commission that forgiveness is good for our community health and
that if we do not partake in revenge in seeking the death penalty, then we will move our community to a
place of healing, a place where we find ourselves seeking to be reconciled which is the next step beyond
forgiveness. Forgiveness is the first step to reconciliation but we cannot have reconciliation until we have
forgiveness.

So I plead with this Commission to make its finding and strong findings that the death penalty has no place
in our County for the many reasons that will be presented here today among them the outrageous cost, the
moral imperative of avoiding violating the dignity of another human person, etc. But today I add my plead
for the community itself; allow us to heal through forgiveness and not lock us in a prison of unforgiveness; it
is a sin against our society when we insist on an eye for an eye. We lock ourselves in a prison and we
throw away the key. We cannot get out of that prison. We cannot get out ever.

So I plead with this Commission to find the death penalty has no place because it does not bring about
reconciliation. It does not bring about forgiveness. And it most certainly does not bring about a human
society and a society that pushes for goodness. We ought to push for the best out of human beings and
not the worst, which the death penalty is––our animal instincts of revenge.

I plead for you to make your findings for the best of the human person, not our lowest animal instincts of
revenge but the highest instincts that our divine creator calls us forth to be, to aspire to greatness and
healing. I ask this County to spend whatever monies we have on rehabilitation of society. This County has
already committed itself to work towards better programs for healing for victims and for perpetrators; let us
continue this good work with the money we save from executing people. May we work for healing and
forgiveness and not revenge

Thank you for your time.

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Mary Kay Raftery (Mother of homicide victim)
Thank you for giving me the opportunity to speak about the Death Penalty and why I oppose the use of the
death penalty.

My name is Mary Kay Raftery, and I live in San Jose. My son, Paul Anthony Raftery was murdered in
Helena, MT on Dec. 8, 2006 by two 18 year old men looking for money to buy drugs. He had no money on
him. He had recently graduated from law school and passed the bar in MT, and was clerking for a
Supreme Court Justice.

I’d like to share why I oppose the death penalty. As a teen I read an article supporting the death penalty,
and it made sense to me, and I really gave the issue no more thought. But on my way to work one day in
the 1990’s, I was listening to a live broadcast of an execution at San Quentin that was botched, and I was
appalled that the execution proceeded that afternoon. How barbaric! At the same time, Texas seemed to
be executing men hand over fist.

My initiation into this work occurred when the Board of Supervisors hosted a seminar on the Death Penalty
here in this chamber. I became an active member of the California People of Faith Working for a
Moratorium for the Death Penalty in 2002. The organization has since changed it’s name to California
People of Faith Working to Abolish the Death Penalty. When I heard the news of Paul’s murder, I distinctly
remember asking myself if I wanted the killer or killers to die. I decided that I had been such a vocal
opponent of the Death Penalty that I should put my money where my mouth was. I’ve never regretted my
decision. When we met with the prosecutor four days after the murder, the family was informed that the
death penalty was not on the table. I was relieved.

When I first became active in the CPF, I was having conversations with Paul about what I was doing. I was
trying to convert him. He quietly told me he too was opposed to the death penalty. By this time, Paul had
been a US Park Policeman for 3 years, and had served as a Deputy Sheriff in Sublette County, Wyoming
for eight years. I was surprised at his response, but very gratified. As a matter of fact, Paul’s father and
siblings also oppose the death penalty. The whole family felt justice had been served when the murderers
received life sentences with a possibility of parole after 55 years.

Thank you for your kind attention.

Deborah J. Ross (Daughter of homicide victim)
Twenty-five years ago, my mother was raped and beaten to death by a teenage neighbor on drugs, whose
brother had been a murder victim. I have never been a proponent of the death penalty and over the years, I
have become even more adamantly opposed to it. I believe that not only does the death penalty not deter
such horrendous crimes, but it increases the suffering of the families and loved ones of both victim and
perpetrator. In addition, the costs are crippling an already failing state budget, and the long delays and
appeals constitute such psychological torture as to undermine the moral authority of the criminal justice
system.

In the years after the murder of a loved one, survivors are desperate for anything that will ease their pain.
But state-sponsored premeditated killing cannot heal; it can only perpetuate the myth of restorative
violence. This illusion deprives those who suffer of the tools and skills necessary to become whole once
more. The death penalty keeps the survivors focused on punishment and revenge, and forces them to
14

remain emotionally engaged with the person who killed their loved one. It becomes impossible to let go of
hatred. We are told that the execution will "bring closure," as if some external event could substitute for the
internal emotional and spiritual work of grief and re-engagement with life. In my experience, it can't.

I'm happy to pay taxes to keep those who commit violent crimes behind bars. I am appalled at the idea that
the cycle of violence is being perpetuated as if by my consent and for my benefit.

Nothing you nor I nor my mother's killer can do will bring her back. But I have learned a great secret. She
isn't dead. When I act with compassion, treating each human being with dignity, she is alive in my deeds.
When I turn away from bitterness and embrace life, she is alive in my heart. And when we work together to
create a world of hope for even the most tortured and least fortunate, then she is alive in all of us.

Brian M. Welch (Supervising Deputy District Attorney)

Memorandum

To: Human Relations Commission
From: Brian M. Welch, Supervising Deputy District Attorney
Date: 07/22/11
Re: Death Penalty Review; Summary of Presentation on May 12, 2011

1. Current status of capital cases in the SCCDA’s Office
None pending. 2010 was an unusual year with 2 DP cases going to trial: Paniagua and Forte, both of
which resulted in the imposition of the death penalty. Historically, this county has sought DP rarely.

2. Cases where the prosecution may seek DP
Only those cases involving First Degree Murder
Examples: Murder that is premeditated and deliberate; Murder committed during the course of certain
enumerated felonies, such as rape and robbery; Murder committed while lying in wait.

And only those with at least one “Special Circumstance”
Examples: Murder committed during a kidnapping, rape, or robbery; Multiple murders; Murder for financial
gain; Murder of a Peace Officer.

And only when the “aggravating” factors substantially outweigh the “mitigating” factors. Aggravating factor
is one that aggravates the crime or the defendant. For example, an aggravating factor may be the
circumstances of the crime and whether the defendant has other felony convictions.

15

Mitigating factor mitigates the crime or defendant. For example, a mitigating factor may be an absence of a
criminal record, the presence of extreme mental or emotional disturbance, and whether the defendant
acted under extreme duress.

3. For the jury to impose the DP
Jury must convict a defendant of First Degree Murder, must find true at least one special circumstance,
must determine that the aggravating factors substantially outweigh the mitigating factors, before it may
impose death. However, jury is not required to impose death after making all those findings.

4. Review Process
Only the District Attorney may authorize an attorney to seek the DP. The District Attorney will make that
decision after reviewing the case with the assigned attorney, the supervisor of the homicide team, as well
as other experienced homicide prosecutors.

Defense counsel is invited to present mitigating evidence to the District Attorney prior to any decision being
made as to whether to seek the death penalty.

Testimony Summaries available upon request from the Office of Human Relations:
 Marc Klaas (Founder Polly Class Foundation)
 Richard Konda (Asian Law Alliance)
 Hon. Ladoris Cordell (Santa Clara County Superior Court Judge)
 Ellen Kreitzberg (Santa Clara University School of Law)
 Michael Marshall (former Prison Warden)
 Darryl Stallworth (former Alameda County Deputy District Attorney)

Additional organizations contacted to offer expert testimony:
 Charlene Hall – Prodeathpenalty.com
 North Valley Baptist Church
 Santa Clara County Department of Corrections
 Santa Clara County Probation Department
 Santa Clara County Public Defenders Office
 Santa Clara County Sheriff’s Office
 Santa Clara County Republican Headquarters
 Santa Clara University College Republicans

2. Public Testimonies (October 13, 2011)
In order of testimony shared:
 Ann Miller, Cupertino resident: Self/Member of Amnesty International
1. 139 nations have abolished death penalty
2. 58 nation have maintained the death penalty
3. 16 States have abolished the death penalty
4. The UN Declaration of Human Rights does not support the death penalty
5. It is unjust for those who are wrongfully convicted

 Daniel Hoffman, Saratoga resident: California People of Faith Working Against the Death Penalty
1. The ration of Black who kill Whites is 50:1 compared with white who kill Blacks
16

 Gerald McGuire, Palo Alto resident: Santa Clara County Coalition Against the Death Penalty
1. Moved by testimony
2. Initially, out of ignorance he once supported the Death Penalty
3. Nationally the Death Penalty has not achieved the outcome that was desired- deterrence.

 Terry McCaffrey, Palo Alto resident: California People of Faith Working Against the Death Penalty
1. We need to abolish the Death Penalty
2. Although he has sympathy for the victims of murder, the Death Penalty is not the answer
3. He urges the Commission to adopt a resolution against the prosecution of Death Penalty cases

 Pandit Kambhampati Bala Krishna Sarma, Sunnyvale resident: Hindu Community of the Bay Area
1. In the Hindu tradition the Baghdad Vita urges us to fight the good cause and to fight against errors
2. The Death Penalty is a form of terror

 Mary Connors, Palo Alto resident: Self, Thomas Merton Center and, People of Faith Against the Death
Penalty
1. Jury selection for Death Penalty cases is based on the individual indicating that he/she is not
against the Death Penalty
2. This policy biases juries to be in favor of supporting the Death Penalty
3. She expressed concern for the families of perpetrators and the victims

 Rev. Jim Friedrich, Saratoga resident: Prince of Peace Lutheran Church
1. The Lutheran Church stands in opposition of the Death Penalty
2. Application of the Death Penalty is not the answer.
3. Even when we want to be tough on crime restorative justice is not achieved through the Death
Penalty

 Aaron Resendez, San Jose resident: PAX Christi of East San Jose
1. Death Penalty cases are not allowed in Mexico
2. The cost of Death Penalty cases proves it is not the answer
3. DNA has found too many people innocent

 Susan Swope, Redwood City resident: California People of Faith (Cupertino, CA)
1. The American law model is too extreme
2. Death Penalty cannot be justified

 Alberto Carrillo, San Jose resident: American GI Forum
1. The GI Forum has a long standing position against the Death Penalty
2. Many other Veterans groups are against the Death Penalty
3. He is personally against the Death Penalty

17

C. Santa Clara County Coalition for Alternatives to Death Penalty Factsheet

18

D. Excerpt of California Senate Bill 490

19

E. References

Publications
2000-2007 Death by Geography: A County by County Analysis of the Road to Execution in California”
prepared by ACLU of Northern California.

The Hidden Death Tax: The Secret Costs of Seeking Execution in California prepared by ACLU of Northern
California.

Websites
Death Penalty Info

http://www.deathpenaltyinfo.org/

http://www.deathpenalty.org/

http://www.aclu.org/capital-punishment

Death Penalty Links
http://www.clarkprosecutor.org/html/links/dplinks.htm

http://www.gallup.com/poll/1606/death-penalty.aspx

History of Death Penalty
http://www.deathpenaltyinfo.org/history-death-penalty

Facts of Death Penalty
http://www.deathpenaltyinfo.org/FactSheet.pdf

Death Penalty Reports
http://www.deathpenaltyinfo.org/reports

Web sites
http://www.deathpenaltyinfo.org/death-penalty-related-web-sites

http://www.cdcr.ca.gov/

Capital Punishment California State
http://www.cdcr.ca.gov/Capital_Punishment/

Regulations California State
http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/4_LI_7-28-10.pdf

Legislative Activity
http://www.deathpenaltyinfo.org/recent-legislative-activity

California State information category
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http://www.deathpenaltyinfo.org/state_by_state

Recommendations
http://www.deathpenaltyinfo.org/documents/LoyolaCalifCosts.pdf

SF Gate
http://articles.sfgate.com/2011-07-17/opinion/29783482_1_professor-paula-m-mitchell-judge-arthur-l-
alarcon-death-penalty

Cost/execution chamber
http://www.guardian.co.uk/world/2011/jun/20/california-death-penalty-execution-costs

Against Death Penalty
http://users.rcn.com/mwood/deathpen.html

ABC 7 Report Live
http://abclocal.go.com/kabc/story?section=news/state&id=8202173

California Progress Report
http://www.californiaprogressreport.com/site/california%E2%80%99s-4-billion-death-penalty-law

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Impact of Death Penalty in Santa Clara County Report

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