Rosen’s Lawless War Against The Death Penalty, Part II

Three months ago, Santa Clara County District Attorney Jeff Rosen unveiled his controversial scheme to have the death sentences of 14 South Bay murderers reduced to prison terms. Although his plan faltered out of the gate because he failed to coordinate scheduling with the courts, the misstep bought him valuable time that he could have used to correct course. He blew the chance.

It, therefore, might seem odd that Rosen’s proposed orders contain not one word of justification for reducing anyone’s death sentence; they simply announce the reductions as accomplished facts, done deals.  That won’t work because the law requires courts to “state on the record the reasons” for reducing anyone’s sentence. No self-respecting judge, therefore, would even consider signing the legally defective orders Rosen has drafted. And that’s Rosen’s dilemma: He couldn’t include his actual reason for reducing all 14 death sentences because it is no more legally sustainable than no reason at all.

Rosen claims that he only recently “just began to feel like we don’t have the moral authority as a society to execute someone.” Only “God should decide when” those 14 murders should die, he insists. He thinks the public doesn’t  “deserve” the prerogative it rightly enjoys to disagree with him. The law, however, is clear: Rosen’s personal policy preferences are legally irrelevant.

Here are some things the law says could be relevant:  the murderer’s behavior while in prison, the danger he continues to pose to others, the fairness and integrity of his particular trial or sentence, and whether he suffered childhood trauma or similar abuse before committing murder. Every factor listed is of the sort that the California Supreme Court, in a closely related context, has called “intrinsic” to the sentencing process. Such factors are “case-specific and defendant-specific.” They differ from forbidden “extrinsic” factors, such as “idiosyncratic views of justice” informed by the prosecutor’s or the court’s “bare antipathy” for the particular law involved.

To be sure, the statute also says permissible factors “include, but are not limited to” those specifically mentioned. But that won’t allow Rosen to nullify all death sentences based on his disapproval of capital punishment.  Unmentioned things “included” by such language are only things “that are similar to those which are enumerated specifically.” Rosen’s personal opinions are nothing remotely like the case- and offender-specific factors mentioned in the statute.

Thus, it is also of no moment that Rosen now claims he has no “faith in the integrity” of any death sentences because he is uncertain whether any was “attained without racial bias.” While alleging that “implicit bias and structural racism” played “some role,” he can’t say what role that was and he admits he has no basis for accusing anyone involved with being a racist. His only point is purely hypothetical—“if the structure was infected with racial bias, then we cannot have faith in the integrity of the ultimate sentence.” Rosen’s unproved hypothesis might well be worth exploring, but until then it cannot logically or legally provide a basis for nullifying all the sentences imposed on every capital murderer in the county — more than half of whom are white.

Rosen concedes there’s no reason to believe any of the 14 murderers are innocent, but he wants their sentences reduced anyway because he cannot “deny the possibility of error.” These speculative musings too are just another way of saying he believes capital punishment is bad policy, a viewpoint California voters have repeatedly rejected.

Rosen also insists “it offends equality under the law to have people serving a capital sentence when they would not receive such a sentence for the same conduct today.” But this insult to “equality” is entirely of his own making, the result of his decision, beginning in 2020, never to seek the death penalty for any murderer no matter the circumstances. His argument might not quite match the level of chutzpah displayed by the man who murdered his parents and then begged for mercy on the ground that he’s an orphan, but it’s close.

Nor does it help Rosen to continue arguing that reducing sentences will “expedite” all litigation generated by the murderers and “pave the way” to finality. Easing court congestion, like gratifying Rosen’s hostility toward capital punishment, is “extrinsic” to the considerations on which individualized sentencing decisions must properly turn.

At any rate, Rosen’s rosy predictions are unfounded, and incorporating them into his proposed orders would have only highlighted his duplicity. After all, if Rosen really wanted those 14 cases to wind down, he’d demand that the 14 murderers waive further litigation in exchange for reduced punishment. He hasn’t. Far worse, he has inserted into some proposed orders language that guarantees the murderers will continue to “pursue claims related to the convictions in current and future state and federal litigation” even if their sentences were reduced.

Rosen’s campaign against the death penalty is an exercise in showmanship that plays well with anti-death penalty activists. But Rosen should expect―and the public certainly deserves―a far more skeptical reception from the courts. After all, ours is “a government of laws, and not of men.”

This article was originally published in the Silicon Vally Voice and is re-published with permission.