DA Rosen's flawed arguments to overturn death sentences against murderers

Bait and switch. This month, Santa Clara County District Attorney Jeff Rosen persuaded a judge to overturn the death sentences of two murderers. The victims' surviving relatives turned out in large numbers to object, but their pleas fell on deaf ears.

How did evil murderers get spared the punishment that juries felt they more than deserved, while the families of innocent victims endured even more suffering? Could this really be what the law demands, and will this pattern repeat itself in the coming months as Rosen implores the courts to overturn even more death sentences?

Rosen wants to remove all 14 convicted South Bay inmates from California's death row. From the beginning, he has not even claimed that his campaign to abolish the death penalty in Santa Clara County is about individual justice.

He sought a general reduction in sentences by attacking the state's death penalty law on broad political grounds. The briefs that set his plan in motion in a dozen cases were essentially identical—laden with the same rhetoric you'd expect from an attention-seeker and devoid of any meaningful case-specific discussion.

The law does not give weight to considerations such as those of Rosen. In fact, few things fewer In the work of the prosecutor, his personal views on the wisdom, necessity, or effectiveness of the laws he is sworn to uphold are of greater importance than his personal views on the wisdom, necessity, or effectiveness of the laws he is sworn to uphold. Rosen certainly knew this, but he persisted.

Reality finally caught up with Rosen, but only days before this month's hearings. Then, in a surprise “supplemental” brief, Rosen began mentioning for the first time the case-specific factors on which the law says sentence reductions must depend.

The judge immediately followed this line and based his verdicts not on Rosen's personal opposition to the death penalty, but on something that Rosen only mentioned in passing: The judge argued that the death sentences of the two murderers should be overturned because they had become weaker and more law-abiding with age and therefore did not pose an “unreasonable threat to public safety” as long as they were never released from prison.

The problems with this argument are obvious. And they are frightening.

First, the assumption that incarcerated prisoners pose no danger to the public is false, since the “public” includes both prison staff and other prisoners.

Second, this premise satisfies a political belief that California voters have repeatedly and decisively rejected: namely, that life sentences for the worst murderers provide society with all the protection it needs and deserves. Judges, like prosecutors, have no power to put their personal opinions above those of the public they serve.

Third, the argument creates perverse incentives. Death row inmates, already motivated to delay their appeal, will be delighted to learn that, according to the judge's logic, if they delay execution until their golden years, they will never face execution.

Fourth, the argument is circular. If indefinite imprisonment of a murderer is enough to ensure that he is not dangerous, and that supposed harmlessness justifies sparing his life, then any murderer sentenced to death would be entitled to have his sentence reduced to life imprisonment. The judge might as well have said, “Because life imprisonment is always an option, it is the option that must always be chosen.”

There will certainly be cases where it is entirely appropriate to reduce a death sentence to life imprisonment, but such a sentence cannot reasonably be based on a circumstance that is present in virtually every case. When judges allow this to happen, they are acting not as judges but as rubber-stampers.

In other cases, with hearings scheduled through October, Rosen will continue to espouse his irrelevant views on the wisdom and morality of the death penalty. And while his blather will never win over conscientious judges, only time will tell whether the judges will still do what Rosen wants, for spurious reasons that are as far removed from logic as Rosen's arguments are from the law.

Ron Matthias, now retired, served as California's Chief Deputy Attorney General and Capital Litigation Coordinator from 2007 to 2019.

Originally published: August 20, 2024 at 5:30 am