Why Hasn't the Government Killed This Man?

Darwin Hall couldn't contain himself as he watched Randy Steven Kraft, the man just sentenced to death for torturing and killing Hall's son, being led out of a southern California courtroom. Leaping to his feet, Hall shouted, "Burn in hell, Kraft!"

As Hall later told the Los Angeles Times, "I hope this ends it." But it didn't. Not by a long shot. Today is the 25th anniversary of Kraft's death sentence. And Kraft is still alive.

Even when compared to other serial killers, Kraft's crimes were appalling. The slightly built former computer programmer tortured, raped, and slaughtered young men, many of them Marines, during the 1970s and '80s. He often picked up his victims while they were hitchhiking near southern California's many military bases. There's no real question about his guilt: He was caught in his car with the half-naked corpse of a 25-year-old Marine in the passenger seat next to him. Kraft was ultimately convicted of 16 murders. There's an excellent chance he committed dozens more.

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The death penalty is employed by 32 states and by the federal government and military. Setting aside ethical and moral questions about the death penalty, there has rarely been a case that more clearly merited it than Kraft's; he was a plainly guilty and exceptionally cruel serial murderer and rapist. But thanks to the fantastically convoluted legal machinery that has grown up around capital punishment, Kraft has kept his execution at bay for decades. Now 69 years old, he's more likely to die in his cell in San Quentin State Prison than in the execution chamber.

If the government can't execute someone like Kraft, who can it execute? The answer is, almost no one. Despite having by far the nation's largest death row — population 750 and counting — California hasn't put anyone to death since 2006. In fact, since 1978 the state has condemned more than 900 people but executed only 13. And yet California's courts keep sending people to San Quentin; 24 death sentences were handed down in the state last year alone.

This state of affairs is not unique to California. Across the country, executions are the exception, not the rule. There are more than 3,000 condemned inmates in the United States, and dozens more are added each year. But in a typical year, only about 1 percent are put to death. Even Texas, America's most prolific executioner by a wide margin, has put to death 10 inmates so far this year out of a death row population of nearly 300. The average time from sentence to execution in the Lone Star State is over 10 years. Nationwide, hundreds of prisoners have sat on death row for 20 years or more.

The wheels of justice are designed to slow down when the stakes are so high — there is no rectifying the execution of an innocent person. So capital trials take longer than those of other murder case because they are more complex and more closely scrutinized.

"As soon as someone says 'death penalty,' the battle is on," says Richard Power, who was Kraft's appeal lawyer for several years. "There are a lot of delays because of all the special preparations that are required — forensic stuff, background stuff."

After Kraft's arrest in 1983, investigators connected him to one body after another; he was ultimately accused of 45 killings. It took five years for his trial to even start, and many months more before a jury found him guilty.

In California — as in most states with the death penalty — a guilty verdict in a capital trial triggers a subsequent phase in which a separate ruling is required on what the penalty should be. All told, it took more than a year from the trial's beginning until the day Darwin Hall listened as the judge sentenced Kraft to die.

That's when Kraft's appeals began. In every state, death sentences are automatically appealed to the state's highest court. The condemned prisoner is guaranteed a state-funded defense attorney for this process, but finding someone both willing and qualified to take on those jobs can be tough. Three years passed before Power stepped in as Kraft's appeals lawyer. It took Power several more years to file his opening brief, and three more before the California Supreme Court heard the appeal in 2000.

"This was a huge case," Power tells VICE News. "The records ran over 38,000 pages." Power, whose practice at the time was called Appeals Unlimited, added his own 700-page opening brief.

Like most death row inmates, Kraft moved on to federal courts after he lost his state-level appeals. Like all death penalty appellants, he was given a government-funded lawyer.

"You just have to say, 'I want to file a federal appeal,' and they have to find someone," says Richard Dieter, head of the Washington, DC-based Death Penalty Information Center. "That can take time." Especially if the prisoner then fires his lawyer — something Kraft has done repeatedly.

It's been clear for a long time that the glacial speed with which death penalty cases proceed is problematic. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act aimed at speeding up executions. At the time, the average delay between sentence and execution was 10 years and five months.

As of 2012, it was 15 years and 10 months.

"The biggest reason for that is exonerations," Dieter says. Thanks in part to DNA testing, 109 men and women have been released from death row since 1990. "We know that mistakes happen. That means you have to look at everything more carefully. That has slowed the whole system down."

All of which also means these cases cost a fortune. Orange Coast magazine estimated last year that the full bill to California taxpayers for Kraft's court cases and incarceration stands at about $15 million. A 2011 study found that condemned inmates have cost California $4 billion since 1978. Those figures point to the reasons why a growing number of prominent conservatives have in recent years begun calling for capital punishment to be abolished.

Controversy over the methods used to kill prisoners has also delayed cases. Since lethal injection was introduced in the 1970s, virtually every state adopted a protocol using a combination of three drugs: one to put the condemned to sleep, the next to paralyze his muscles, and the last to stop his heart. That protocol has come under fire, however, thanks to a growing body of evidence indicating the supposedly painless process is sometimes anything but. The prisoner may remain conscious but paralyzed, unable to talk or move as his heart is slowly squeezed to a stop.

Defense lawyers have used these findings in a barrage of motions claiming lethal injection is unconstitutional because it amounts to cruel and unusual punishment. As a result, in 2007 executions were put on hold nationwide. They have since resumed, with occasionally gruesome results, in at least a half-dozen states. California is not one of them.

The final twist came this summer, when the legal issue of long-delayed executions became a delay itself. In July, a federal judge ruled that the decades-long waits on California's death row and the uncertainty about whether condemned inmates will ever actually be put to death amounts to cruel and unusual punishment, and so must be stopped.

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"The dysfunctional administration of California's death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution," wrote judge Cormac Carney. "Indeed, for most, systemic delay has made their execution so unlikely that the death sentence… has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose."

Carney's ruling will be appealed. Until then, all executions are on hold in California.

Meanwhile, Kraft reportedly spends his time listening to music and playing cards in addition to filing legal briefs. He sent a petition to a federal appeals court last summer, attempting once again to fire his court-appointed lawyer.

Follow Vince Beiser on Twitter: @vincelb