OAKLAND -- Asked to recommend the death penalty for triple murderer David Mills, an Alameda County jury this month spent just one day in deliberations to do so. In recent years, few other juries in the county have faced a similar decision.
The current district attorney, Nancy O'Malley, has not sought the death penalty in a single case since taking the county's top law enforcement post 2 1/2 years ago. The Mills case was a holdover from the previous DA, Tom Orloff, who pursued 47 death penalty cases in his 15-year career.
In some ways, O'Malley reflects a statewide trend: Statistics suggest there has been a decline in death penalty prosecutions across California, as district attorneys confronting a difficult legal environment shy away from the huge commitment of time and resources that every death penalty case entails.
Even Orloff became disinclined to seek death as his career progressed, opting for the ultimate punishment just three times in his last five years in office. In November, Californians will decide whether to abolish the death penalty altogether.
But O'Malley, who insists she is not opposed to the death penalty, clearly is setting a high bar for pursuing an execution. In her tenure as district attorney, she has confronted more than 30 defendants who were eligible for capital punishment because of the nature of their crimes. Only once did she opt for death, and in that case she reversed the decision just before
"It's not a lightweight decision to make, we should be pondering this decision and looking at it from all angles," O'Malley said in a recent interview. "My own personal feeling is that if we make that recommendation, it would be rarely done because we want it to be reserved for the most heinous cases."
The California District Attorneys Association, which supports the death penalty, refrains from criticizing individual attorneys for their death penalty decisions.
"We don't think it is a penalty that should be taken away when you look at these worst cases," said Scott Thorpe, chief executive officer for the association. "But we trust in the discretion and how individual DAs make decisions for their counties. They reflect their voters. They reflect their jury pools."
But Harriet Salarno, chairwoman of Crime Victims United of California, an advocacy group that supports the death penalty, said her group is concerned about district attorneys who won't seek the death penalty.
"The law is the law and we as victims have to follow the law, (so) why aren't they?" Salarno asked. "We don't trust life without the possibility of parole."
Like many DAs, O'Malley reviews every case that is eligible for the death penalty with a panel of high-ranking attorneys in her office.
She said she has three criteria that must be met to recommend death: Death penalty cases must be a rarity, the crime must be heinous and there must be no doubt about the guilt of the defendant.
"For myself, it has to be these three criteria and that is playing out here," she said. "That standard in issuing the ultimate punishment is important."
O'Malley said she has only seen one case since taking office in 2009 that meets her threshold, a case in which a longtime companion stabbed his girlfriend to death with a screwdriver in a parking lot in front of her workplace. But O'Malley said she chose to reverse her original decision to seek death in that case after family members said they wanted a speedy resolution to the trial.
"Right now, capital punishment is California law and I will continue to follow the law and consider it," she said.
But O'Malley said she won't take a public position on the November ballot initiative that seeks to abolish the penalty in the state and resentence the more than 700 inmates on death row to life in prison without the possibility of parole.
Alameda County is not alone in its reluctance to opt for the death penalty. Statistics provided by some local district attorney's offices and the state Department of Corrections and Rehabilitation show that the penalty has become less popular throughout the state.
Explanations for the trend vary, but many experts who study the state death penalty and other prosecutors say the state's slow pace of executions and the costs associated with seeking the death penalty make it an exercise in futility. Recent calculations by this newspaper found that the cost of appeals proceedings alone in a single death penalty case can approach $1 million.
"The whole tenor in both the criminal justice system and in the community has changed in regard to the death penalty," said Laurie Levenson, a professor of law at Loyola Law School in Los Angeles. "Prosecutors realize, in the end, it might not be worth it."
Defendants who are eligible for the death penalty are already facing a punishment of life in prison without the possibility of parole. Given the long appeals process for death penalty cases in California, many death row inmates die as a result of natural causes, just as they would have with a sentence of life without the possibility of parole.
Alameda County has 42 inmates on death row, with only nine who have had all their appeals exhausted. The longest tenured death row inmate from Alameda County has been housed at San Quentin State Prison for more than 30 years.
"Prosecutors are increasingly willing to use the punishment of life without the possibility of parole and recognize that it is more acceptable to the general public," said Elisabeth Semel, a professor of law at UC Berkeley Law School. "The decreasing popularity of the death penalty ... has an influence in the decision."
According to statistics complied by the state Department of Corrections and Rehabilitation, only 10 criminal defendants across California were sent to death row last year, the lowest number statewide since 2004. Over the past three decades, juries throughout the state have sent an average of 23 defendants to death row each year.
Contra Costa District Attorney Mark Peterson said his office's decisions on whether to seek death against a defendant take community opinions into account.
"People here want us to be tough on crime, but they want us to be smart on crime," he said. "Even though we might personally believe a defendant deserves the death penalty, it doesn't do us any good to take a hard stance if the community isn't going to support it."
Contra Costa County has only one death penalty case pending and hasn't seen a death penalty verdict against a defendant in more than two years.
"The statistics bear out that the number of death penalty cases has gone down over the years," Peterson said. "It's been almost two years without a death verdict and for the ninth largest county in the state, I think that says a lot.
"For the vast majority of eligible cases," Peterson said, "we don't seek the death penalty."
Staff writer Malaika Fraley contributed to this report.