By Mary Slosson
SAN QUENTIN STATE PRISON, California (Reuters) - Convicted murderer Douglas Stankewitz, who has spent more than three decades on death row, isn't pinning his hopes of survival on a referendum next month to abolish the death penalty in California - he knows that even if voters reject the measure, he may never be executed.
"They can't kill me because the system is messed up so bad," Stankewitz, California's longest-serving death row inmate, told Reuters in an interview at San Quentin State Prison. "The death penalty is a joke."
Stankewitz, a 54-year-old who arrived on death row at age 20 for killing a woman during a drug- and alcohol-fueled carjacking, is one of 726 inmates on death row in California. The state hosts nearly a quarter of the nation's condemned prisoners but has executed none in the last six years.
A federal judge halted all California executions in 2006, saying a three-drug lethal injection protocol risked causing inmates too much pain and suffering before death. California revised its protocol, but executions have not resumed.
Public opinion in many states has been shifting away from the death penalty, with five states abolishing capital punishment over the past decade. Seventeen states and the District of Columbia do not allow the death penalty.
In California, proponents of repealing the death penalty are basing their campaign not so much on moral grounds, but rather on the question of cost. They say the system, with mandated appeals that can take decades, costs so much that the financially troubled state could save hundreds of millions of dollars by instead jailing the worst killers for life.
Polls show the referendum - one of 11 ballot measures facing Californians on the same day as the presidential election, November 6 - faces an uphill fight. A majority of Californians, 51 percent, oppose abolishing capital punishment, according to a September USC Dornsife/Los Angeles Times poll of 1,504 people. Just 38 percent backed repeal, while the rest were undecided.
State offices do not track specific costs associated with prosecuting and housing death row inmates, but a number of studies have shown the burden is high.
A 2011 study by Ninth Circuit Court of Appeals senior judge Arthur Alarcón and Paula Mitchell, an adjunct law professor at Loyola Law School, said the death penalty has cost the state roughly $4 billion since 1978, when California voted to reinstate it following a nationwide pause.
It called California's capital punishment system "the most expensive and least effective" in the nation.
An independent budget watchdog, the Legislative Analyst's Office, has said repealing the death penalty could initially save the state $100 million a year, later growing to $130 million a year.
"It is a failed public policy that wastes so much public money. And it is an illusion. We haven't had an execution in over six years," Jeanne Woodford, a former San Quentin warden and a leading advocate of death penalty repeal, told Reuters.
Death penalty costs are driven by mandated appeals and a shortage of public lawyers qualified to handle capital cases, which means inmates can wait decades to make their way through the system.
Condemned inmates wait an average of five years to be given lawyers for an automatic appeal to the California Supreme Court, which is mandated by state law, Woodford said, and then another 12 years for an attorney to handle an automatic federal habeas petition, which is a formal request for a federal court to examine the legality of the petitioner's imprisonment.
The California Supreme Court spends a third of its time on death penalty appeals alone, she said.
Stankewitz, who has been on death row for 34 years, is among 44 inmates who have spent three decades or longer waiting to die.
Convicted in 1978, Stankewitz had his conviction and sentence reversed by the state Supreme Court in 1982 because his mental competence to stand trial had not been evaluated. He was then re-tried and re-convicted by a Fresno County court in 1983.
That trial spurred another automatic appeal to California's top court, which in 1990 declined to alter his conviction or sentence, according to court records. His first federal habeas appeal was filed in 1994.
By his own count, Stankewitz has gone through roughly a dozen public defenders, whom he refers to disparagingly as "dump trucks," and court records show more than 600 motions, orders and rulings in his case since 1991.
His appeals have run the gamut from questions over his own mental competence to the competence of his previous legal counsel and procedural and evidentiary complaints.
"I'm caught up in this game. I don't like this game," Stankewitz said in an interview inside a cramped visiting cell that was locked from the outside, monitored by guards and separated from the main visiting area.
Of the state's hundreds of death row inmates, just 13 have exhausted their appeals and are awaiting execution.
By 2050, California is projected to have sent 740 more inmates to death row, and more than 500 death row inmates will have died of old age or other causes before they can be executed, Alarcón and Mitchell said in their study.
Twenty-one inmates have committed suicide on California's death row since 1978, and 57 have died of natural causes, prison officials said.
An independent commission said in 2008 that the state's death penalty system was dysfunctional and warned that, if nothing were done to reverse structural delays in the appointment of counsel and appeals, the application of capital punishment in California could be declared cruel and unusual punishment and, ultimately, struck down as unconstitutional.
It said that a system with life without parole as the top punishment would cost only $11.5 million a year, well under the $137 million it pegs as the annual cost of capital punishment. The Alarcón-Mitchell report puts the cost of having the death penalty at $144 million a year.
The California Department of Corrections and Rehabilitation said housing an inmate costs around $55,500 annually per prisoner. It does not break that down by sentence or crime.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said capital punishment costs could be alleviated if sentencing appeals were not mandated, reducing the time from sentencing to execution to five or six years.
"That would cost less than we are spending now, and less than to incarcerate them for life," said Scheidegger, a co-chair of the coalition to keep the death penalty.
Opponents of ending capital punishment, including San Bernardino District Attorney Michael Ramos, are concerned about the danger of mixing death row inmates with the general prison population, arguing that such serious offenders need the additional security measures that are standard on death row.
Family members of victims of death row inmates have spoken out on both sides of the issue.
Sandy Friend, for example, wrote a public petition arguing that execution was the only fitting punishment for the man who kidnapped, tortured, raped and killed her 8-year-old son, Michael Lyons, in 1996.
"I believe that the only justice for these horrendous crimes these individuals have committed is the death penalty," Friend said in a video produced by repeal opponents. Her son was abducted on his way home from school by a man with two prior sex offense convictions, Friend said, and was tortured for 10 hours.
The man convicted of Lyons' death, Robert Rhoades, was sent to death row in 1999. His appeals are ongoing.
SAME SCRIPT, DIFFERENT NAME
Stankewitz's defense attorneys have largely based their appeals on questions about his intellect and childhood abuse. He suffered alcohol exposure in the womb, was removed from his home at age 6 after his mother beat him and bounced between foster care facilities where he was severely troubled and abused, court documents show.
He was 19 when he and a group of friends carjacked Theresa Graybeal, 22, from a K-Mart parking lot in Modesto and drove across California's rural heartland to Fresno, roughly 100 miles away.
There, Graybeal was shot and killed. Her family members could not be reached for comment.
One of Stankewitz's companions, 14-year-old Billy Brown, implicated him as the shooter in exchange for immunity from prosecution, records show. Stankewitz says he was framed by Brown. A federal judge granted him a new penalty phase trial - one that considers punishment only, not guilt or innocence - in 2009, but that remains under appeal.
"We are a script. Every person on death row is the same script with a different name," Stankewitz said.
(Reporting by Mary Slosson; Editing by Cynthia Johnston and Claudia Parsons)