The Office of the State Public Defender (OSPD) represents defendants without funds in death penalty appeals cases. Although this office started out handling a broad range of indigent appeals cases, since 1990 it has only handled appeals in death penalty cases. California has executed 13 people since 1976, out of 1,252 nationwide. But its 702 death row inmates are almost twice the size of the next largest state, Florida. More than one in five U.S. prisoners on death row resides in California and at one time or another many of them want a lawyer. 

The 1963 landmark U.S. Supreme Court decision Gideon vs. Wainright guaranteed the right of legal counsel to people lacking money to hire representation. California complied with this legal decision by providing private attorneys on a total or partial public service basis. The complete pro bono practice was discontinued in the ‘60s and all appointed lawyers were paid by the courts in amounts considerably less than fees charged by private attorneys.

In 1976, after a successful pilot program in San Diego showed the advantages of an office of advocates delivering legal services to the poor, the state Legislature created the Office of the State Public Defender. It came on the heels of a 1970 legislative report that said appointed legal representation was poor because “most of today’s appointments are handled by recent admittees to the bar, marginal lawyers who have done poorly in private practice and are willing to work for substandard fees, and retired lawyers.”

During its early years, the OSPD's workload was predominantly complex non-capital felonies on appeal to the Courts of Appeal, with a handful of capital murder cases in the mix. During its first six years of operation, the OSPD grew from a budget of $2.4 million and 94 authorized positions to $7 million and 154 positions.

Charles M. Sevilla, who opened the Los Angeles regional office in July 1976, said the state public defenders had an immediate impact. In addition to providing counsel to clients, the state office ran training seminars, published how-to-do-it manuals and created a brief bank to make its work product available to others. Statewide, the quality of legal services to the poor quickly and measurably improved, according to Sevilla, and the state Attorney General’s Office had a worthy courtroom adversary. The statewide reversal rate on general appeals cases soon doubled.

“California criminal law underwent a change not unlike the Warren Court legal revolution of the previous decade. We won a series of significant legal victories including decisions protecting against unfair lineups, coerced confessions, and discriminatory prosecutorial challenges to potential jurors. There was a broadening of the insanity standard and an important decision giving teeth to Gideon by defining the performance minimums for the effective assistance of trial counsel. Particularly impressive was our record in death penalty cases. The State Public Defender office led the way in attacking death judgments and obtained relief for all of its clients.”

These accomplishments did not go unnoticed, and in 1983 newly-elected Republican Governor George Deukmejian, a former state attorney general and death penalty proponent, cut the State Public Defender office in half, closing the Los Angeles and San Diego offices. The original goal for the Public Defender’s office when created in 1976 was that it handle all indigents who appeal their criminal convictions. But the office had only been able to service 30% of those cases in its best year and was down to 10% by 1988.

The Administrative Office of the Courts was given the task of hiring private counsel for indigent applicants. The State Public Defender’s office was told to reduce its caseload to exclusively representing clients in death penalty appeals and complex non-capital criminal appellate cases and by 1990 had largely made the change.

In 1997, the Legislature expanded the office to 128 positions to alleviate the growing backlog of death penalty cases. But in 2003, the office suffered a cut of 43 positions and another 10% were cut in 2009. As of 2009, there was a delay of three to five years before a death row inmate had counsel appointed to handle his or her direct appeal.

The office has appeared before the California Supreme Court in over 250 cases and before the U.S. Supreme Court in a half dozen cases. It has been responsible for major developments in the areas of capital litigation, due process, right to counsel, confessions, jury selection, search and seizure, sentencing and many other issues.

Gideon and the Short Happy Life of California's Public Defender Office (by Charles M. Sevilla, Champion Magazine (National Association of Criminal Defense Lawyers)

About Us (Public Defender’s website)

Death Penalty Appeals and Habeas Proceedings (by Gerald F. Uelmen, Marquette Law Review)

The State Public Defender has an exclusive focus on death penalty cases, and represents more than 130 people on California’s death row. OSPD litigates these cases both on appeal and habeas corpus. The office has appeared in the California Supreme Court in more than 250 cases and in the United States Supreme Court in a half dozen cases where certiorari review was granted. They have been responsible for major developments in the areas of capital litigation, due process, right to counsel, confessions, jury selection, search and seizure, sentencing and many other issues.

As of early 2011, the State Public Defender office represented more than 130 men and women on California’s death row. (By the time a defendant gets to death row, anyone except an extremely wealthy person would be indigent anyway due to the cost of legal fees.) OSPD attorneys are in-house or, more often, contract attorneys hired and overseen by the office. The State Public Defender operates regional offices in San Francisco and Sacramento.

About Us (Public Defender's website)

The office of the State Public Defender uses the services of contract criminal attorneys and law firms, investigators, experts, paralegals, forensic labs, and database research services. They also pay for other research tools, data processing, and travel expenses.

All of the office’s money comes from the state General Fund.

3-Year Budget (pdf)

Uneven Justice

On April 8, 2008, the California Commission on the Fair Administration of Justice issued the Report and Recommendations on Funding of Defense Services in California. The commission studied all aspects of California public defenders, including the representation of the indigent in appeals. The conclusion overall was a damning one:

“The quality of representation afforded indigent accused is far from uniform in California and sometimes falls short of the constitutional minimum.”

Professor Larry Benner of the California Western School of Law conducted a statewide survey of judges and lawyers in appeals cases, the province of the State Public Defender, for the 2008 commission. He studied 2,500 reported appeals decisions in which ineffective assistance of counsel claims were raised from 1997 through 2006. Benner’s study reported that courts found ineffective assistance of counsel in 121 of 2,500 appeals cases. In 104 of them the verdict was reversed and a new trial was ordered. In 44% of the 121 cases, failure to investigate was reported as the most common performance deficiency.

Nearly all the state public defenders, contract defenders and certified criminal specialists surveyed by Benner agreed that lack of resources for investigation was a serious problem.

The Benner Survey also examined the issue of attorney workloads. All public defender offices except one reported that attorney workloads were a problem in their office.

The 2008 commission also found that flat-fee contracting is a problem. Services needed for a proper defense must be taken off the top when contracts are paid a flat fee. This one-size-fits-all approach can hurt the defendant’s defense, because the contract defender may feel that he or she has to cut back on investigative or other services in order to make a profit. Flat-fee contracts may also hurt the defendant’s right to a jury trial, since the contract attorney would not be paid more for preparing and presenting a case for trial.

The commission concluded that flat-fee contracts in California should separately reimburse the contracting attorneys for the expenses of adequate investigation and needed experts.

Systemic Factors Affecting the Quality of Criminal Defense Representation (by Laurence A. Benner, Lorenda S. Stern and Alex Avakian) (pdf)

Conviction Overturned

In March 2011, Francisco "Franky" Carrillo was released from jail after a team of lawyers led by state Deputy Public Defender Ellen J. Eggers worked to overturn his murder conviction and sentence of two life terms. Carrillo was convicted of a drive-by shooting in 1992 that left a man dead. Witnesses to the shooting recanted their testimony and a reconstruction of the scene raised doubts about whether they would have been able to see the shooter.

Man Freed After 20 Years Behind Bars (Los Angeles Times)

California Stays Flexible

Capital punishment cases take a long time in California. Longer than in most states. And one of the reasons is that, unlike most states, California does not have a specific deadline for how long prisoners have to challenge their convictions. In February 2011, the U.S. Supreme Court upheld California’s right to be flexible and the end result was an end to an appeal by convicted killer Charles W. Martin.

Martin had filed his habeas corpus petition with the California Supreme Court for a hearing of his appeal five years after his murder conviction had become final. The court said he waited too long. Martin’s attorney argued that lack of a specific deadline left his client in the dark about how long he could wait.

The U.S. Supreme Court decision drew the support of liberals and conservatives on the bench. Justice Ruth Bader Ginsburg emphasized the advantages of flexibility while conservatives were happy the conservative state Supreme Court could set its own policy on the matter.

State’s Flexible Inmate Appeal Rule Upheld by High Court (by Michael Doyle, Sacramento Bee)

Abolish the State Public Defender’s Office

In 1988, five years after Governor Deukmejian and the Legislature directed the Public Defender’s office to focus solely on death penalty appeals, the independent Little Hoover Commission issued a report recommending it be abolished. The commission recommended that the functions of the office be combined with two entities (that still exist today) into a single autonomous agency located within the judicial branch, rather than the executive.

The new agency would absorb the private court-appointed counsel and the Appellate Project. The latter is a non-profit corporation established by the State Bar as a legal resource center to implement the constitution right to counsel for indigent people facing execution. It currently serves the largest population of condemned individuals in the country and is funded primarily by a contract with the Judicial Council of California.

Ten years after the commission issued its report, the Habeas Corpus Resource Center was established to further facilitate appointments, training and support of attorneys in state and federal proceedings. The center is a part of the judicial branch of California state government and has a budget nearly equal to the Public Defender’s office.

The commission also recommended that the new agency, which it dubbed the Appellate Defense Agency, would expand its activities to include legal representation of all indigent individuals convicted of felonies.

A Review of the Operation and Performance of the Office of the State Public Defender (Little Hoover Commission, 1988) (pdf)

Can California Afford the Death Penalty?

The State Public Defender budget has yo-yo’d up and down dramatically over its four-decade history. Its mission changed radically in the ‘80s when its avowed goal narrowed from defending all indigents on appeal to primarily representing death row inmates in their appeals. From time to time various government watchdogs have recommended re-expanding the scope of the office’s activities or narrowing it further as the office struggles, and generally fails, to accomplish its goals. But for now, the fate of the office is directly tied to the perpetuation of the death penalty whose existence continues to be a lightning rod for debate for reasons often not related to money. But in difficult economic times, when states wrestle with budget deficits and hard choices about public policy, there is a heightened sense of the price paid for state sanctioned executions.

Keep the Death Penalty

Proponents of the death penalty say the high costs often associated with it are generated by those people who obstruct its swift application for ideological reasons. They argue that millions of dollars are spent defending the worst people in society because death penalty foes can’t make an economic argument for stopping the practice unless they stretch the process out interminably. If justice were swift and brutal, the deterrent effect of capital punishment would be magnified, fewer people would kill and it would cost even less money to deal with the problem. The cost to society of having the perception that crime pays and goes unpunished is incalculable.

It’s the price of being wishy-washy, according to law professor Frank Zimring.

“What we are paying for at such great cost is essentially our own ambivalence about capital punishment. We try to maintain the apparatus of state killing and another apparatus that almost guarantees that it won't happen. The public pays for both sides.”

“[The] cost is not inherent in the [death] penalty, but imposed by judges,” Edwin Sutherland and Donald Cressey argued in their book “Criminology.” “It is not cheaper to keep a criminal confined, because most of the time he will appeal just as much causing as many costs as a convict under death sentence.”

Dudley Sharp of Justice for All argues that although up front costs of the death penalty are significantly higher than for equivalent life-without-parole cases, in the long run they are much cheaper. “Opponents ludicrously claim that the death penalty costs, over time, 3-10 times more than LWOP.”

Chris Clem, an attorney in Tennessee, sees executions as an almost free way to rid society of its worst problems. “Executions do not have to cost that much. We could hang them and re-use the rope. No cost! Or we could use firing squads and ask for volunteer firing squad members who would provide their own guns and ammunition. Again, no cost.”

We Can’t Afford Executions

California reinstated the death penalty in 1978 and spends about $117 million a year on capital punishment, nearly half of it on prison expenses and the rest on court costs. The state spends $23 million alone on the budget for the State Public Defender’s office and the Habeas Corpus Resource Center. California was poised to build a new $356 million death row at San Quentin until Governor Jerry Brown nixed the idea in April 2011.

California has the broadest death penalty law in America, with an array of special circumstances that can be applied to 87% of the murders committed in the state and often is. As of 2008, there was a delay of three to five years before a California death row inmate has counsel appointed to handle their appeal. The average delay between appointment of counsel and the filing of briefs is 2.74 years. It takes six months for the attorney general to file its response and another six months for a response to the response. And then everyone waits for the state Supreme Court to schedule oral arguments.

And the meter is running throughout the process. “The costs mount because death penalty trials and appeals take far longer than others, involve more lawyers, investigators and expert witnesses, and displace other cases from courtrooms,” according to the California Commission on the Fair Administration of Justice. It is estimated that Michael Burgener, sentenced to death in 1981, will cost the state $3.68 million more for his confinement on death row by the time his appeals are exhausted in 2020 than if he were confined pursuant to a sentence of life without parole.

The biggest reason for the delay in California is that the demand for competent, experienced death penalty lawyers vastly exceeds the available supply. More than 40% of the 713 inmates on California's death row are still waiting for the appointment of a lawyer to handle the habeas corpus reviews to which they are constitutionally entitled. And every time the State Public Defender’s office takes a budget hit, that number grows.

Former Director of the California Department of Corrections and Rehabilitation Jeanne Woodford puts the true cost of capital punishment even higher, $200 million a year, and says the potential for irreversible error makes it a hugely expensive injustice that serves no one. "It doesn’t serve the public. It doesn’t serve prevention. It’s truly about retribution.” Woodford, who left the correctional institution to head the advocacy group, Death Penalty Focus, oversaw the carrying out of four death penalties while warden at San Quentin.

Death Penalty and Sentencing Information (by Dudley Sharp, Justice for All)

Does the Death Penalty Cost Less Than Life in Prison Without Parole? (ProCon.org)

Report and Recommendations on the Administration of the Death Penalty in California (California Commission on the Fair Administration of Justice) (pdf)

Eliminating the Death Penalty Can Save California Money (by Byron Williams, Huffington Post)

Death Row Report Sees Failed System (by Maura Dolan, Los Angeles Times)

California Warden Now Believes that Executions Don't Make us Safer (by Jeanne Woodford, Death Penalty Focus)

Can California Confront Costs of the Death Penalty? (by Gerald Uehlman, op-ed in Sacramento Bee)

Lynn Coffin, 2000 – 2004

Fern M. Laethem, 1989 – 1999

Harry Zall, 1988. He was appointed by Governor Deukmejian and served until the Senate refused to confirm him. Critics called him petty, vindictive and indecisive. Others noted that his support of the death penalty put him at odds with the office’s primary responsibility of defending death row inmates.

Frank O. Bell, 1984 – 1987

Quin Denvir, 1978 – 1984. After leaving state service, Denvir was lead counsel in the “Unabomber'”Theodore Kaczynski trial. He also represented former state schools chief William Honig in the appeal of his conflict of interest conviction, Michelle “Batgirl” Cummiskey, who was charged with the brutal slaying of a Sacramento man, and Reza Eslaminia, who was charged in the Billionaire Boys Club murder of the former Iranian official who was his father.

Paul N. Halvonik, 1976 – 1978. Halvonik, appointed by Governor Jerry Brown, was the first state public defender. After a few years, Governor Brown appointed Halvonik, considered a constitutional expert, to the State Court of Appeals. Shortly afterward, Halvonik and his wife Deborah reported a burglary at their home in Oakland. When police arrived they found numerous marijuana plants and arrested him. As part of a subsequent plea bargain he kept his law license but resigned his position on the court.