Opinion: Santa Clara County DA Rosen’s flawed arguments to overturn murderers’ death sentences

Bait and switch. That’s how Santa Clara County District Attorney Jeff Rosen got a judge to strike the death sentences of two murderers this month. The victims’ surviving next-of-kin showed up in force to object, but their pleas made no difference.

How did evil murderers come to be spared the punishment their juries decided they richly deserve while compounded misery is heaped on bereft families of innocent victims? Could that really be what the law called for, and will that pattern repeat itself in the coming months as Rosen beseeches the courts to nullify even more death sentences?

Rosen is seeking to remove all 14 condemned South Bay prisoners from California’s death row. From the outset, he didn’t even pretend that his campaign to abolish the death penalty in Santa Clara County had anything to do with delivering justice in individual cases.

He sought sentence reductions across the board by attacking the state’s death penalty law on general policy grounds. The briefs that set his plan into motion in a dozen cases were essentially identical — loaded with the same rhetoric one would expect from an attention-seeker while devoid of any meaningful case-specific discussion.

The law ascribes no weight to musings like Rosen’s. Indeed, few things are less relevant to the prosecutor’s job than his personal opinions about the wisdom, necessity or effectiveness of the laws he swore to uphold.  Rosen surely knew that, yet he doubled down.

Reality did finally set in on Rosen, although it occurred only days before this month’s hearings. Then, for the first time in a surprise “supplemental” brief, Rosen began to pay lip service to the case-specific factors on which the law says sentence-reduction rulings must turn.

The judge immediately fell into line, resting his rulings not on Rosen’s personal disapproval of the death penalty but on what Rosen offered up only as an afterthought: The judge reasoned that because the two murderers had grown weaker and more rule-compliant as they aged and would pose no “unreasonable risk of danger to public safety” as long as they are never actually released from prison, their death sentences should be nullified.

The problems with this argument are obvious. And frightening.

First, the premise that confined prisoners pose no public danger is faulty, as “the public” includes prison staff as well as other prisoners.

Second, the premise indulges a policy judgment that California voters have roundly and repeatedly rejected, namely that life imprisonment of the worst murderers provides society with all the protection it needs and deserves. Judges, just like prosecutors, have no authority to elevate their personal opinions over those of the public they serve.

Third, the argument creates perverse incentives. Death-sentenced prisoners who are already motivated to drag out their appeals will be thrilled to learn that, under the judge’s logic, if they delay execution into their golden years they’ll never face execution at all.

Fourth, the argument is circular. If a murderer’s indefinite confinement suffices to ensure he poses no danger and that supposed lack of danger justifies sparing his life, then every death-sentenced murderer would be entitled to have his sentence reduced to life imprisonment.  The judge might just as well have said: “Because life imprisonment is always an option, it is the option that must always be selected.”

There surely will be times when it’s entirely appropriate to reduce a death sentence to life imprisonment, but such a ruling cannot sensibly be based on a circumstance present in virtually every case. When judges allow that to happen, they act not as judges but as rubber stamps.

In other cases scheduled for hearings through October, Rosen will continue to press his irrelevant views on the wisdom and morality of capital punishment. And while his nattering will never carry the day with conscientious judges, only time will tell whether the judges will still do what Rosen wants for pretextual reasons that are as divorced from logic as Rosen’s are from the law.

Now retired, Ron Matthias was California senior assistant attorney general and capital litigation coordinator from 2007-19.