Document - USA: California vote allows death penalty experiment to continue

Thirty-five years after the US Supreme Court gave the green light for executions to resume in the USA after nearly a decade without them, the death penalty has been bordering on the shambolic


California vote allows death penalty experiment to continue

Principled human rights leadership needed for abolition across the country

Four decades after California’s Supreme Court abolished the death penalty, only to have it reinstated by popular vote, an effort to persuade the electorate to end the state’s experiment with judicial killing has narrowly failed. If passed, California would have become the 18th abolitionist state in the United States of America, and 726 inmates would have been removed from its death row, more than one in five of those under sentence of death in the USA.

There are already calls from death penalty advocates for executions to resume in California in the name of the “will of the people”. There is nothing that requires a state to carry out death sentences, however, even if its laws allow it. The decline in support for the death penalty illustrated in the California vote should be seized upon by officials across the USA; they should provide the principled human rights leadership necessary to bring abolition forward.

California’s ballot initiative for repeal, “Proposition 34”, emphasised the resource-wasting attributes of capital punishment and the risk of executing the innocent, and would have replaced the state’s death penalty with life imprisonment without the possibility of parole. Among those supporting the initiative was Jeanne Woodford, a former warden of San Quentin prison where California’s death row is housed: “The death penalty serves no one. It doesn’t serve the victims. It doesn’t serve prevention. It’s truly all about retribution.”

Among those who voted for abolition on 6 November 2012 was California’s Governor Jerry Brown. Two and a half years before he was elected in 1974 to his first term as governor (he is currently serving his third), the California Supreme Court had issued a landmark ruling against the death penalty. Its words are worth revisiting today as we reflect on the fall of Proposition 34. In its 1972 decision, the California Supreme Court said:

“We have concluded that capital punishment is impermissibly cruel. It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process. Our conclusion that the death penalty may no longer be exacted in California consistently with article 1, section 6 of our Constitution is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members.”

Even then, 40 years ago, the Court noted that the global “current” had turned towards abolition, and decided that California should join this trend. In the four decades since, dozens more countries have abolished the death penalty – bringing to 140 the number that are abolitionist in law or practice today. Abolition in California did not stick, however. Nine months after the state Supreme Court’s ruling, in the November 1972 elections, state voters adopted a constitutional amendment stating that the death penalty “shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments” within the meaning of California’s constitution.

The state legislature enacted a new capital law in 1973, but this was overturned by its Supreme Court in 1976 after the mandatory death penalty (which the California statute provided for) was outlawed by the US Supreme Court. In 1977, the legislature passed another capital law (overriding Governor Brown’s veto), and in the 1978 elections, voters approved “Proposition 7” which superseded the 1977 statute and is the law that remains in force today. One of the authors of Proposition 7, Ron Briggs, would three and a half decades later endorse Proposition 34, saying that “the ineffective legal beast created by California’s death penalty laws costs taxpayers more than $100 million annually and ties up the lives of prosecutors and victims who could be moving on to other things”.

In November 1978, Proposition 7 was approved by 71 to 29 per cent. In November 2012, Proposition 34 was rejected by 53 to 47 per cent. About nine million people voted on Proposition 34; in the final count there were about 500,000 votes dividing those in favour of abolition from those against it. This outcome, while regrettable, is another strong indicator of the waning enthusiasm for the death penalty in the USA, where four states – New Jersey (2007), New Mexico (2009), Illinois (2010), and Connecticut (2012) – have passed abolitionist bills into law in recent years, in addition to the demise of the death penalty in New York State following a judicial ruling in 2004 that its capital statute was unconstitutional. There the legislature has not enacted a new capital law.

Officials could learn from the four governors who signed abolitionist bills over the past five years and who echoed each other in their recognition of why the death penalty is and always will be the wrong policy. In Illinois, Governor Pat Quinn said that “our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment”. He referred to the “inherent” flaws of the death penalty and the “impossibility” of devising a system that is “consistent, free of discrimination on the basis of race, geography or economic circumstance” and that “always gets it right”. He had found “no credible evidence that the death penalty has a deterrent effect on the crime of murder”.

After signing Connecticut’s abolitionist bill into law in April 2012, Governor Dan Malloy said that his position on the death penalty had “evolved over a long period of time”. As a young man, he had supported it; then, during his years as a prosecutor, he had learned firsthand that “our system of justice is very imperfect” and “like most of human experience, it is subject to the fallibility of those who participate in it”. He said that he had seen defendants “who were poorly served by their counsel” or “wrongly accused or mistakenly identified”, and that he had witnessed discrimination. The end result was that he had come to believe that eradicating the death penalty was “the only way to ensure it would not be unfairly imposed”.

In New Mexico, Governor Bill Richardson said that he had long been a supporter of the death penalty, but that in recent years he had come to the conclusion that its irreversible nature rendered it an untenable punishment in an imperfect justice system. To carry out an irrevocable punishment, he said, “we must have ultimate confidence – I would say certitude – that the system is without flaw or prejudice.” This, he added, “is demonstrably not the case”. In New Jersey, Governor Jon Corzine suggested that “government cannot provide a foolproof death penalty that precludes the possibility of executing the innocent”. The death penalty, he said, had little if any deterrent value, while risking a brutalizing effect through its erosion of “our commitment to the sanctity of life”.

Forty years ago, the California Supreme Court had said much the same thing. On the question of retribution, it wrote that “it is incompatible with the dignity of an enlightened society to attempt to justify the taking of life for purposes of vengeance”. On deterrence, it pointed to evidence that eight out 10 convictions for first degree murder in California at that time resulted in life sentences, with the 20 percent that resulted in death sentences further reduced on appeal, so “far from being a certain penalty with acknowledged deterrent effect, capital punishment today is rarely imposed or implemented”. There was “no basis”, the Court said, on which to conclude that the death penalty was “any greater deterrent to crime than are other available forms of punishment” and “a punishment as extreme and as irrevocable as death cannot be predicated upon speculation as to what the deterrent effect might be if it were actually applied swiftly and with certainty”.

Today, California accounts for 13 of the 1,313 executions in the USA since 1976, when the US Supreme Court gave the go-ahead for judicial killing to resume under revised statutes. In the same period, there have been more than 90,000 murders in California. Across the USA, the process to decide the so-called “worst of the worst” – the crimes and defendants to be punished with the death penalty – is marked by arbitrariness, discrimination and error.

In 2008, the then most senior judge on the US Supreme Court, Justice John Paul Stevens, pointed to the flaws of the death penalty and announced that he had concluded, after more than three decades on the Court, that, with only “marginal contributions to any discernible social or public purposes”, capital punishment was “patently excessive and cruel.” Executions amount to the “pointless and needless extinction of life”, he wrote.

Perhaps the sort of learning process experienced by individual members of the judiciary such as Justice Stevens or of the elected branches of government such as Governors Molloy and Richardson also explains the steep decline in public support for the death penalty in California compared to 1978. It is to be regretted that it takes decades of experimentation with capital justice before people turn against this policy, and that the vote against Proposition 34 allows this experiment in cruelty to continue in California. Nevertheless, to reiterate: even if the death penalty remains available in law, it does not have to be used. It is a policy choice, not a legal requirement. Prosecutors can decline to pursue death sentences. Governors or other clemency officials can block executions. Legislators can pass laws against judicial killing.

The 36th execution in the USA this year, and the 1,313th since 1976, was carried out in Oklahoma on the evening of 6 November 2012, about an hour before polls there closed in the presidential election. Lawyers for Garry Allen had tried to stop the execution, arguing that the condemned man’s serious mental illness meant that he did not have a rational understanding of his predicament. According to media reports, the prisoner, strapped down for lethal injection, rambled unintelligibly about the presidential elections in the minutes before he was killed. “Obama won two out of three counties”, Garry Allen was quoted as saying. “It’s going to be a very close race.”

While the state of Oklahoma had been preparing to kill Garry Allen, voters in California were coming close to ending that state’s experiment with the death penalty. The near success of Proposition 34 should spur the sort of principled human rights leadership too often absent but much needed across the country, at local, state and federal level, including in the White House, to bring abolition closer. With more executions scheduled, such leadership – including support for an immediate moratorium on executions – is needed as a matter of urgency.

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