By Franklin Zimring, San Francisco Chronicle
The measure that qualified last week for November’s ballot to replace death sentences with life imprisonment without parole is the latest chapter in the peculiar career of the death penalty in California. This 2012 initiative campaign, ironically, will use in its efforts to end the death penalty the same process that created the current broad penalty in 1978. Citizens who detest the policy of state execution and those who embrace it completely agree on only one point: The California system is a dismal failure: expensive, slow, arbitrary, complicated and inconclusive.
Not all the costs of California’s brand of capital punishment have been financial. The politics of death almost destroyed the separation of powers in California government in 1986 when a sitting governor provoked an election campaign that removed three of seven California Supreme Court justices because they had reversed too many death sentences.
Those three justices quickly were replaced by far less aggressive civil libertarians. Almost overnight, the state’s Supreme Court went from having one of the nation’s highest rates of death penalty reversal to one with the lowest rate of any major state – even lower than Texas’.
But even shuffling the justices never produced a steady stream of executions. After 34 years, California now has – by far – the largest Death Row of any state in American history and the most expensive death penalty litigation process in world history. With more than 720 condemned prisoners on Death Row, the state has executed only 13 since 1978, when Proposition 7 reinstated the death penalty.
Lawyers and litigation have consumed more than $4 billion in public funds in defense and appeals of Death Row inmates, yet execution is only the third-leading cause of death for persons under a death sentence – most of the aging prisoners die of natural causes. Suicides have been more frequent than executions.
Thus, the state has had fewer than 1 execution for every 4,000 homicides. If the public cost of the system were calculated by dividing the total additional spending on the process by the 13 men put to death, the expense for each execution would build one public hospital or two community colleges. Why are executions so hard to achieve (and so expensive) in California, when Texas can execute 30 or 40 times as many prisoners for only a few million dollars apiece?
In part, because public funds support better lawyers in California. High-execution states have a nasty habit of providing indigent capital defendants with inadequate defense resources and then using procedural mistakes to smooth the path to the execution gurney. We, too, could have a cheaper system if we dropped any pretense of preserving justice.
The second reason for few executions is strategic delay, and not just by defense lawyers. The 1986, state Supreme Court unpacking scared justices from reversing many capital cases. So the justices slowed down the front end of appeals – endless delay is politically less risky than strict scrutiny.
Will November’s ballot initiative extract California from its misery? Probably not, because it won’t pass.
More than 100 nations have abandoned killing as a state punishment, but none did so by a popular vote. The democratic process is a very risky venue for deciding questions of punishment policy, and nowhere more so than in California, where the popular vote often determines the law. The California initiative process has been a vehicle for extremely harsh penal adventures – the death penalty (Proposition 7, 1978), restriction of criminal defenses (Proposition 8, 1982), crackdowns on juvenile courts (Proposition 21, 2000), “three strikes and you’re out” (Proposition 184, 1994), and Jessica’s Law for sex offenders (Proposition 83, 2006).
The reason ballot measures provoke this brand of repression is that they become a referendum on public sentiment toward crime and criminals. A politician opposed to ending the death penalty will argue that the November ballot measure is really a choice between supporting killers or siding with victims.
The abolition of the death penalty in democracies the world over has proceeded when governmental leaders – presidents, judges, senior legislators – assume responsibility for campaigns to end the death penalty, usually when 60 percent of the public wants to retain it. But the public will acquiesce to decisions made by respected leadership. That kind of leadership has found the way out in Illinois, New York, New Jersey, and, just last week, Connecticut, which have ended their own expensive and futile adventures with the death penalty.
Without moral leadership from respected California politicians, this initiative probably is doomed. Prosecutors embrace a California death penalty, not because they like or expect executions, but because it enhances their plea-bargaining power and provides them with a starring role in the high-stakes public drama of a capital trial. The opposition of prosecutors – and a few million dollars invested in angry TV commercials – usually defeats criminal justice reforms by initiative.
Just as it took an anticommunist, President Richard Nixon, to go to China, the most credible moral leadership for ending California’s death penalty would come from its historical supporters – people like Arnold Schwarzenegger, Dianne Feinstein, George Deukmejian, Pete Wilson or former Chief Justices Ronald George and Malcolm Lucas. True, being the first high-status leader onboard for this effort would take real courage.
When criminal justice reforms fail to survive the initiative process, we usually blame populist slogans and an uninformed public. But what could doom the death penalty initiative this fall is the failure of moral leadership by political elites.