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After 35 years on Death Row, Bernard Hamilton died of "natural causes" at the age of 64. How profoundly messed up is our system of criminal justice that I could even write such a sentence? What an enormous waste of judicial resources. What an enormous waste of taxpayer money. What an enormous waste of time, emotion and hard work for the countless people who have tried to kill him and those who tried to save him.

Dysfunctional Death Penalty

Another Poster Child For California's Dysfunctional Death Penalty—Andy Love

California's death penalty system is so dysfunctional that even after 35 years, issues regarding the reliability of his conviction and the fairness of his death sentence have not been resolved. And now they never will be because Bernard Hamilton has died of "natural causes" at the age of 64.

What madness.

California's death penalty system is so dysfunctional that even after 35 years, issues regarding the reliability of his conviction and the fairness of his death sentence have not been resolved. And now they never will be because Bernard Hamilton has died of "natural causes" at the age of 64.

In 1981, Bernard Hamilton was found guilty of the murder of a woman named Eleanore Buchanan and sentenced to death. Although the facts of the crime are quite gruesome, the trial itself was a travesty. (Most notably, Bernard was shackled throughout the trial, originally at his own lawyer's suggestion, calling into question both whether his lawyer could possibly represent him impartially and whether the jury would view him as anything but uncontrollably dangerous.)

In the early 1990s, as a relatively young lawyer, I was assigned to work on Bernard's case. By then, there had already been several dramatic twists and turns that were not untypical of the death penalty post-conviction process in California.

In 1985, the California Supreme Court reversed Bernard's death sentence because the jury was never instructed that it had to find an intent to kill before finding him eligible for the death penalty. (The jury had found him guilty of intent to rob and kidnap, but not that the murder itself was intentional.) The U.S. Supreme Court vacated that decision and sent the case back to the California Supreme Court for reconsideration. Unfortunately, by the time the case returned, the California Supreme Court's three liberal justices, including Chief Justice Rose Bird, had been recalled and replaced with three extremely conservative justices. Not surprisingly, the newly transformed court reinstated Bernard's death sentence.

After state court remedies are exhausted, challenges can be made in federal court and that is where I became involved.�� Ultimately, in 1994, we were able to win a reversal of Bernard's death sentence based on another instructional error. The federal appellate court (The Ninth Circuit) agreed that the jury sentenced Bernard to death after having been misled about the likelihood that the governor could commute his sentence if the jury gave him life without possibility of parole (LWOP) instead of death. (In fact, the governor did not have the power to do so.)

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The San Diego District Attorney did not have to seek another death sentence. Had he done nothing, Bernard would have been sentenced to LWOP. Even back then, Bernard was in very poor physical health and showed signs of serious mental illness. And despite the fears that led to his shackling during the first trial, Bernard had been a model prisoner in his years on the row. But the D.A. sought death again, and Bernard was retried in 1995. Remarkably, despite his impairments, he was permitted to represent himself and was again sentenced to death. It took another 14 years for the California Supreme Court to review and uphold his death sentence on appeal. Substantial challenges to his conviction and sentence were pending when he died.

In 2008, the California Commission for the Fair Administration of Justice (CCFAJ), after its extensive study of the state's death penalty system, concluded that the process for reviewing death sentences was “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the California Supreme Court's review. Since the publication of this report, it has only gotten worse. For the reasons explained here, California's death penalty scheme is irrevocably broken and the delay is due to the inherently dysfunctional nature of the process.

U.S. Court of Appeals Judge Arthur L. Alarcon and law professor Paula Mitchell co-authored a ground-breaking study in 2011, concluding that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions." A year later, an updated study revealed that "if the current system is maintained, Californians will spend an additional $5 billion to $7 billion over the cost of LWOP to fund the broken system between now and 2050. In that time, roughly 740 more inmates will be added to death row, an additional fourteen executions will be carried out, and more than five hundred death-row inmates will die of old age or other causes before the state executes them."


There are currently nearly 750 men and women on California's death row. Like Bernard, they are far more likely to die of natural causes than to be executed. Indeed, since 1978, 70 condemned inmates have died from natural causes and 8 from other causes. 25 have committed suicide. 13 have been executed.

What madness.

California's death penalty is a costly government program that doesn't work and can't be fixed. But it can be replaced. Headed for the ballot in 2016 is the Justice That Works initiative to replace the death penalty with LWOP—and require defendants sentenced to LWOP to work in prison, with 60% of their wages going to victim restitution. A Legislative Analyst's Office has determined that replacing the death penalty with LWOP would save California $150 million a year, by reducing the costs of trials and subsequent appeals.

andy love

To find out more, to volunteer and/or to donate click on this link: Justice That Works.

Andy Love
Fair and Unbalanced