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CLOSING LOOPHOLES IN THE DEATH PENALTY PROPOSITION 18 WOULD ELIMINATE FINE POINTS THAT DEFEAT PURPOSE.

Byline: Adam B. Schiff Local View

IN the 1980s, a series of decisions by the California Supreme Court refusing to apply the death penalty resulted in the defeat of three members of the Rose Bird court. Decisions of that court on the death penalty have had a lasting influence, however, that long survives the change in court.

In some cases, the lengths to which the Bird court went to avoid application of the death penalty have contorted the law in ways that still lead to irrational results. For this reason, former Sen. (now Judge) Quentin Kopp and I authored Proposition 18, which appears on the March 7 ballot.

California's special circumstances death penalty law was drafted in response to United States Supreme Court case law, which held that in order to survive scrutiny under the U.S. Constitution, the imposition of the death penalty could not be arbitrary or it would violate the prohibition on cruel and unusual punishment.

Under California law, murder in the first degree (killing with malice aforethought) is punishable by imprisonment of 25 years to life unless ``special circumstances'' are charged and found to be true. When special circumstances apply, then the sentence is either death or life imprisonment without the possibility of parole.

One of the special circumstances that qualifies for the death penalty occurs when a killer kidnaps his victim or commits arson. In a bizarre result, however, the Bird court held that this special circumstance would only apply when the defendant kidnaps a victim or commits arson and only later decides to murder the victim. If, on the other hand, the defendant committed the kidnapping fully intending to murder the victim or set a building on fire with the specific intent to murder the person inside, this would not qualify for the death penalty or life without parole.

In one particular case, an estranged husband in Ventura County who arranged the kidnapping of his wife for the purpose of killing her was spared the death penalty or life without parole because he intended to kill her from the start! This was a peculiar and unjust result, particularly since he was no less culpable than if he had kidnapped his wife and only later decided to kill her.

Proposition 18 would overturn this arbitrary distinction, and make the death penalty or life without parole available whether there was an independent purpose for the kidnapping or arson, or whether the acts were committed for the express purpose of killing. Any other result merely circumvents the intent of the special circumstances law, which reserves the death penalty and life imprisonment for the most culpable killers.

The second problem addressed by Proposition 18 concerns the special circumstance of ``lying in wait,'' where a defendant plans his murder and conceals himself until the victim appears. Under the case law interpreting this provision, it is necessary for the killer to murder the victim almost immediately after confronting him or her. On the other hand, if the killer lies in wait, captures the victim, takes the victim somewhere remote and commits the murder, the special circumstance does not apply!

This makes no sense whatsoever, and from the perspective of one former prosecutor, I firmly believe that the latter circumstance is more premeditated and aggravated.

The opposition to Proposition 18 argues that obliterating the distinctions made in the Bird court's decisions will render the death penalty arbitrary and capricious in violation of U.S. Supreme Court law.

In fact, however, it is the present law that appears arbitrary, when it imposes the death penalty or life imprisonment for an arson that results in murder, but not for an arson whose primary intent (and effect) was murder.

Proposition 18 should strengthen California's law against further court challenge. And not surprisingly, the measure enjoys the strong support of the author of California's death penalty law, former Gov. George Deukmejian, as well as the entire law enforcement community.

The remainder of the opposition focuses exclusively on opposition to the death penalty itself. I understand that many people have a deeply rooted philosophical objection to the death penalty. I respect their view, although I do not share that view.

I have always believed that this most severe of sanctions does deter some criminals from the callous taking of a human life. And if just one innocent victim's life is spared, the death penalty or life without parole is justified as a deterrent. But we must ensure that enforcement of this penalty is not arbitrary. Proposition 18 is an important step in that direction.
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Publication:Daily News (Los Angeles, CA)
Article Type:Editorial
Date:Feb 24, 2000
Words:758
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