PENALTY

a remarkable series of DNA exonerations, including in death penalty
cases. Jurisdictions in the United States are slowly learning from these
cases, and some have adopted reforms to prevent future wrongful
convictions. Jurisdictions outside the United States should similarly
take note. Eyewitness memory, confessions, informants and traditional
forensic comparisons are not very different around the world. The
same causes and practices may result in the same types of errors.
Much more remains to be done to prevent wrongful convictions, in
capital cases as well as other types of criminal cases. Getting it right
will take a sustained commitment.
IN THE UNITED STATES,
GROWING DOUBTS ABOUT
THE DEATH PENALTY
Gil Garcetti 1
The death penalty in the United States is applied through the state
systems of justice and, on far fewer occasions, through the federal
system. Under current federal law, each state has the authority to
impose a death penalty for murders involving actions or situations
that are usually referred to as “special circumstances.” Likewise, any
state is free to ban the death penalty. As of this writing, 18 states have
banned it, and three more—Washington, Oregon and Colorado—
have recently imposed moratoriums. One could also convincingly
argue that the nation’s largest state, California, effectively has a moratorium,
given that the last execution there was in 2006.
In the 29 states that do impose the death penalty, the decision on
whether to seek it is made by the county prosecutor (each state is
divided into counties). California has 57 counties, and each has an
elected prosecutor with the title of district attorney. Each of these
district attorneys has different criteria for deciding whether to seek
the death penalty in death-penalty-eligible cases. In Los Angeles,
the death penalty is sought in less than 15 per cent of all eligible
cases. In other California counties, this ratio is reversed. Without
doubt there are cases for which, if they were tried in two counties
in California, one county would seek the death penalty and the
other would not.
Los Angeles County, where I have the greatest experience and familiarity,
is the largest county in California and by population larger
than 43 states. Because of its size, courthouses are spread throughout
the county. Though the death-penalty decision-making process is
centralized, whether a jury returns a verdict of death depends to a
great extent on where in the county the case is tried. This has always
troubled me. Why should one defendant benefit or suffer simply
1 Gil Garcetti was Los Angeles County District Attorney from 1992 to 2000.
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