About 2,000 homicides were committed in Santa Clara County since 1978, but only 15 killers — the worst of the worst — are under sentence of death for the murders they committed over that period. District Attorney Jeff Rosen wants to dismantle those sentences. His reasons are incoherent, contrived and legally baseless.
Earlier this month, Rosen realized, apparently for the first time, that the death penalty is irreversible. In his view, this causes capital punishment to violate due process. The Supreme Courts of both the United States and California, however, have found otherwise. While Rosen is free to disagree with those decisions, his responsibilities to the public are properly defined not by his personal opinions but by the law as enacted by the voters and interpreted by the courts.
Rosen thinks it is unfair to maintain death sentences imposed by Santa Clara juries between 1978 and 2020 because for the last four years he has refused to seek that penalty against anyone, no matter how heinous their crimes. He believes “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.” Therefore, he argues, all murderers must now be spared in order to treat people who have committed similar crimes similarly.
But the dissimilar treatment Rosen laments is entirely of his own making. Giving the back of his hand since 2020 to a law he doesn’t like was his first mistake. That’s the one he should correct going forward, not compound by extending it to earlier verdicts.
Justice can be slow
Rosen also insists that the ever-slowing pace of resolution of capital cases requires upending every death sentence. This makes no sense. Some delay in capital litigation is necessary to ensure fairness, but excessive delay is mostly engineered for its own sake by death-sentenced prisoners and their lawyers. Stalls along the path to justice are unfortunate, if sometimes required; canceling the entire journey on account of their occurrence is beyond absurd.
The district attorney has tried to assure the public that prisoners whose death sentences he hopes to reduce will remain incarcerated without any possibility of release. But since 2020, the governor has granted clemency to 15 prisoners serving life sentences — supposedly without the possibility of parole — in order that they be paroled or at least be given a chance for parole.
Rosen has no reason to believe any of the murderers sentenced to death by Santa Clara juries are innocent, and he concedes that each may well deserve the punishment. Yet he seeks to undo the juries’ penalty verdicts and decades of tireless review by scores of state and federal judges because he has lost confidence in the reliability and fairness of the death penalty.
Claiming to be uncertain that those verdicts weren’t “attained without racial bias,” Rosen assumes that they were, surmising “that implicit bias and structural racism played some role.” But suspicions like those floated by Rosen could be confirmed or dispelled by following the procedures spelled out for that exact purpose in California’s Racial Justice Act. Rosen has not explained why he feels prisoners should bypass that provision or why anyone should to jump to the conclusion that racism infected the sentences imposed on all 15 of his county’s capital murderers — more than half of whom happen to be white.
Voters have decided
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Something else is going on here, and during a recent interview Rosen gave it up: “I just began to feel like we don’t have the moral authority as a society to execute someone.”
California voters, however, feel differently. They said as much when they adopted the state’s current death penalty law in 1978, again when they rejected a ballot measure to abolish that law in 2012, and yet again in 2016 when they not only rejected a second repeal measure but approved a competing one designed to fast-track capital cases.
In our democracy, it is the voters’ views, not prosecutors’ personal policy preferences, that have controlling moral and legal force. District attorneys are allowed — indeed, required — to evaluate the circumstances of individual cases with a view toward achieving justice. But they hold no power to summarily cancel the broader policy judgments entrusted to the citizens they have sworn to serve. Rosen needs to show a little humility and begin acting as if he understands that.
Now retired, Ron Matthias was senior assistant attorney general and capital litigation coordinator from 2007 to 2019. He served as lead counsel for the state in many capital appeals, including that of William Dennis, whose pending death sentence is among those Rosen is seeking to have reduced.
