Opinion by Jay Gaskill, former Alameda County Public Defender
A 650 word version of this piece was published in the Oakland Tribune on 11-30-02. Link: http://www.oaklandtribune.com/Stories/0,1413,82%257E1751%257E1022277,00.html?search=filter
Murder In Oakland
Oakland’s climbing murder rate is a wake up call. Here’s something to ponder:
Yes, the annual murder rate in Oakland has passed the one hundred mark, a sharp increase from prior years. But there is a much more important number. Far fewer than half of these murders have resulted in an arrest of the perpetrator. As of Halloween, there were 95 homicides in the city and only 31 of them had been solved. Put another way, at least 67% of the known murders in the city of Oakland in the current year remain unsolved; and all those killers are still at large.
It’s common knowledge among law enforcement professionals that the largest plurality of this year’s homicides are turf fights within the criminal sub communities, struggles over gang and drug territories that have generated killings and counter killings. Does this make the crimes harder to solve? To the extent that the criminal cohorts aren’t talking and the innocent civilian witnesses are intimidated, it certainly does. Regrettably, it may also make them a lower priority, especially when police resources are as scarce as they are today. The fact that some of the bad guys are killing each other is cold comfort in the face of the larger trend. Their mutual mayhem poses a danger to the rest of us, to our sense of peace and safety, and risks economic damage. A dismal public safety trend leads a dismal investment trend.
Can Oakland reverse this homicide outbreak? Of course. This is not rocket science. Like so many other social problems, crime will yield to more concentrated resources and greater determination. Strapped Oakland police resources were temporarily overmatched by the scale of the problem. Yet the recent roving deployments of concentrated police resources have begun to produce results. Which proves the point.
But there is another pressing issue. Most repeat criminals in Oakland are comfortable in two societies: among their “home boys” around town, and in prison, where the same guys are doing time. Gangs flourish behind bars, which is one reason that Oakland’s prison graduates are under-deterred. Think about it: Neither the prospect of an arrest, statistically improbable at present, nor the threat of a mere prison sentence (in effect the prospect of spending more time pumping iron with buddies behind bars) is going to stop this group of criminals from pulling the trigger when it suits them. Can this situation can be changed? Of course it can. We need some changes in the law and changes in current thinking. We need the will to overcome.
Oakland is neither a pro police nor a pro law-and-order town. More to the point, Oakland is not a death penalty friendly jurisdiction. Let me make a disclaimer. I don’t like the death penalty, but reality teaches some harsh lessons. As Public Defender, I worked hard to prevent any of my clients from going to death row. But that makes my point. They didn’t want to go. Thirty years of experience, of confidential interviews with thousands of criminals is a great reality check. As a realist, I now support the death penalty for certain murders, especially for the criminals who have gotten used to prison life, because the credible threat of that ultimate punishment saves innocent lives.
On this topic, many of my good hearted humanitarian friends are deeply out of touch with the common wisdom. This notion that cold blooded murderers are entitled to keep on living at our expense in air conditioned rooms with good medical care, three meals, access to exercise equipment and television is a relatively modern development. I have listened to all the arguments that the death penalty is not a deterrent. Death penalty opponents usually talk about crimes of passion, pointing out that the jealous husband was too filled with rage to give a thought to penalty, or on the homicidal maniac who is on a suicidal run. This is all beside the point. Whole other categories of criminals are deterred. Think of those carjackings where the victim is in the trunk. Some are shot, others not. Of course some criminals think of the consequences. Very few look forward to death row, let alone the “green room.” Most criminals who don’t kill don’t want to be executed. It really is that simple.
The death penalty deters that entire class of murders where there is a moment to reflect before killing. This includes most drug dealer turf shootings, gang warfare, witness killings, robbery murders, and so on. The dirty little secret is that most murders committed in the city of Oakland could be deterred as long as two conditions are met: (1) the arrest risk must reach a more credible level; (2) there must be a genuine prospect of the death penalty for the convicted. The problem remains that, under current law, some Oakland murders aren’t death penalty eligible because “special circumstances” can’t be proved. Witness killings, killings while “lying in wait,” and killings in the course of listed felonies are special circumstance murders eligible for the death penalty. I would advocate adding a new one: any first degree murder by someone who has spent time in state prison. The list of special circumstances seems to grow every time the legislature meets; this legislative change is needed for Oakland. Our governor is a death penalty supporter and our Supreme Court long ago found it constitutional. The City of Oakland should support this legislation; declare zero tolerance for killings; and ask the prosecutor to seek the death penalty in every Oakland case whenever legally appropriate.
I know there are other painful problems worthy of attention, the failure of the families to keep together, the lack of education, jobs, and healthy role models. All that acknowledged, I can’t help but notice that out of the thousands of dispossessed youth, of all the hard luck cases, very, very few of this unfortunate group actually kill. Despite all the pressures on them, only a comparatively handful out of these thousands actually pick up a gun and blow away a fellow human being. Remember: when we deter a potential killer, we help several people, the would-be killer among them. Being tough on murder is ultimately a humane stance. In fact, not all murder convicts need be ultimately executed for the penalty to be an effective deterrent, since the alternative is life without parole. The strong message is the key: That Oakland is fed up with murder; that enough is enough; that if you take a life in “Oaktown”, you may forfeit your own.
Yes, resources and motivation really do produce results. Recall the cold blooded freeway overpass shooting of OPD officer James Williams. I will never forget the solemn majesty of his funeral, the rows and rows of uniformed men and women. That crime was solved within hours by concentrated, highly motivated police work, the kind that is normally available for the most extreme offenses against the public order. OPD’s homicide division is as overworked now as at any time in recent memory. The vigorous Williams’ investigation was the kind of special, aggressive attention to a single crime that is considered a luxury, given current budgetary restraints. But it worked. Without question, most murders would benefit from similar attention, especially done within the critical first few hours when leads are hot.
So we know it can be done. Are we willing to pay the price? Will we give our law enforcement authorities the tools they need to do the job, the staffing, the resources, the community support? The defeat of the recent measure to fund an additional 100 police positions was great news for Oakland’s armed crooks. I’d like to see them get a different message. I am proud of the progress Oakland has made in realizing the promise of this wonderful city. Will we let that promise slip away because of a few thugs with weapons? Stay tuned….
Copyright ã 2002 Jay B. Gaskill