California’s Death Penalty: A Year in Review

On November 6, 2012, California voters narrowly defeated Proposition 34, a measure that would have replaced the state’s death penalty with the sentence of life without the possibility of parole (LWOP) as the state’s most severe punishment. Prop 34 failed to pass by about 250,000 votes.

Opponents of Prop 34 used a classic political technique to defeat the measure: fear mongering. They told voters that “instead of justice, killers [would] get lifetime housing/healthcare benefits” if Prop 34 passed. Voters were urged to keep the current system of capital punishment in place to “Protect California.” They convinced voters that the death penalty was needed to punish people like “Richard ‘The Night Stalker’ Ramirez [who] kidnapped, raped, tortured and mutilated 14 people and terrorized 11 more including children and senior citizens.”

The voters were duped. On June 17, 2013, after nearly a quarter of a century on death row at great expense to taxpayers, Richard Ramirez died peacefully at Marin General Hospital in Greenbrae, California, where he was receiving treatment for B-cell lymphoma.

For the last 35 years, California taxpayers have funded the state’s so-called “death penalty” to the tune of over $4 billion. Since voters decided to continue funding the state’s sham death penalty system last November, the situation has continued to deteriorate.

Over the last year:

• California has not carried out any more executions; there have been no executions now for nearly a decade.
• California taxpayers continue to pay a surcharge of $184 million per year to house and provide medical care for over 740 inmates on California’s death row, and to provide decades-long, publically-funded counsel for those inmates. Those expenditures are not incurred under an LWOP system.
• Over 135 men on death row are between 60 and 89 years old, many of whom have significant medical care needs.
• Six more California death row inmates died from either natural causes or suicide, bringing the total non-execution deaths to 90. By contrast, a total of 13 inmates have been executed by the state since 1978.
• For the 90 inmates who died while on death row, taxpayers provided the “lifetime housing/healthcare benefits” death penalty proponents warned voters they would be forced to pay if the state were to switch to LWOP as the state’s toughest penalty. And those housing and healthcare costs come at a premium because we now know that death row costs more than other maximum security facilities.
• These expenditures are likely to continue for the foreseeable future. California Supreme Court Chief Justice Cantil-Sakauye herself says she does not expect executions in California to resume for at least three years because of problems with the lethal injection process.
• Death penalty appeals continue to make up roughly one third of the California Supreme Court’s caseload.
• The backlog at the California Supreme Court is now so severe that it is taking almost 20 years for the court to decide direct appeals in death penalty cases. After that, death row inmates begin their state and federal habeas corpus proceedings, for which they are also provided publically funded counsel, and which typically drag on for at least another ten years.
• California continues to waste millions of dollars on death penalty trials, an estimated $40 million in the last year alone.
• California has sent 19 more defendants to death row:
  • The majority of defendants are people of color. 15 of the 19 defendants are Hispanic (11) or Black (4)
  • The majority of defendants come from two counties in the state. 13 of the 19 death sentences were imposed in Los Angeles (7) and Riverside (6) counties
  • None of the defendants sentenced in those counties are white: 9 are Hispanic, 3 are Black, 1 is “Other”

• The National Registry of Exonerations, a joint project launched by Michigan Law School and Northwestern Law School, has revealed that California ranks first in the nation in the number of wrongful convictions.
• Just last week, another California inmate was ordered released from prison after serving 34 years for a murder conviction that was obtained when prosecutors suppressed evidence that would have helped the defense.
• In July 2013, Governor Brown announced that the state would switch from three drug lethal injection protocol to a one-drug sodium thiopental protocol for lethal injections, already in use in other states.
• Because the one-drug protocol has to comply with California’s Administrative Procedures Act, the switch will delay the potential resumption of death-penalty executions in California for possibly several years.
• Meanwhile, the drug is already in very short supply. Earlier this year, the U.S. Court of Appeals for the District of Columbia ruled that the Food and Drug Administration was wrong to allow sodium thiopental to be imported for executions because it is an unapproved drug.

Despite the vote in California, the use of the death penalty is on the decline in the United States. In 2012, only nine states carried out executions—the lowest number to in 20 years.

On November 21, 2012, just a few weeks after California voted to keep the death penalty, the member states of the United Nations General Assembly voted 110 to 39 in favor of a “moratorium on the use of the death penalty . . . [giving] a further boost to the global goal of ending the use of capital punishment.” When the United Nations was founded in 1945, only eight of the then 51 U.N. member states had abolished the death penalty. Today, 94 states have abolished the death penalty for all crimes, and overall, 137 out of the 193 U.N. member states have ended the death penalty in law or practice. The U.S. joined countries that it routinely derides for human rights abuses—like China, Iran, North Korea, and Syria—in voting against the measure.

Additionally, death penalty states here in the U.S. are feeling increased pressure from the European Union, which “holds a strong and principled position against the death penalty” and has made “its abolition . . . a key objective for the Union’s human rights policy.” The E.U.’s European Instrument for Democracy and Human Rights (EIDHR) has contributed millions of dollars in grants to American non-profits dedicated to ending capital punishment. Recipients of the funding include the American Bar Association’s Fund for Justice and Education, the National Coalition to Abolish the Death Penalty, and Equal Justice USA.

Last month, Governor Jay Nixon of Missouri postponed an execution after the European Union threatened to cut off shipments of propofol, a common surgical anesthetic, if the state moved forward with its plan to use the drug in its new lethal injection procedure. Had the E.U. ceased shipments of propofol to the U.S., it “could have had a widespread impact on hospitals.”

In late October 2013, a Gallup poll found that support for the death penalty in the U.S. has fallen from 80% to 60%, which is the lowest it has been since 1972, when 57% of those polled were in favor of it. Among the explanations for the decline in support for capital punishment are the compelling nature of highly publicized exonerations of death row prisoners (a total of 142 to date) and the lack of evidence that the death penalty deters crime. Where states have abolished the death penalty, there is no corresponding spike in violent crime.

What’s Next for California’s Death Penalty?

While California’s Governor and state legislature appear to be stalled out on ending the death penalty, we can look for guidance to the leadership demonstrated by governors and legislators in other states.

In May 2013, Maryland became the sixth state in the last six years to repeal the death penalty when Governor Martin O’Malley signed legislation abolishing capital punishment in the state, joining New Mexico, Illinois, New York, New Jersey, and Connecticut. Maryland is the first state south of the Mason Dixon line to end capital punishment. There are now 18 states without the death penalty.

On June 20, 2013, the Supreme Court of Oregon upheld Governor Kitzhaber’s issuance of an open-ended reprieve in all death penalty cases so long as he is governor. When Oregon death row inmate Gary D. Haugen dropped his appeals and his execution was imminent, Governor Kitzhaber was prompted to issue a reprieve, which read, in part:

WHEREAS, Oregon’s application of the death penalty is not fairly and consistently applied, and I do not believe that state-sponsored executions bring justice; NOW, THEREFORE, by virtue of the authority vested in me by Article V, Section 14 of the Oregon Constitution, I, John A. Kitzhaber, MD, Governor of the State of Oregon, hereby grant Gary D. Haugen a temporary reprieve of the aforementioned death sentence for the duration of my service as Governor.

The state challenged the Governor’s reprieve because Haugen had not asked for it, and because it was open-ended as to time. But the Supreme Court of Oregon held that the reprieve was within the Governor’s authority.

Unlike in Maryland, Governor Brown cannot repeal California’s voter-initiated death penalty law until another voter initiative repeals it. And Governor Brown may not have the authority to grant reprieves similar to the one authorized by Governor Kitzhaber. But Governor Brown knows better than anyone what a costly failure the state’s death penalty system has been. And yet he resists entering the debate. Governor Brown needs to follow the examples of Governors O’Malley and Kizhaber and demonstrate leadership on this urgent and important issue.

The California legislature has also fallen far short of its duty to reduce the millions of dollars wasted by enacting procedural reforms. Meanwhile, seventeen state legislatures have considered or are considering death penalty repeal bills in 2013 alone, including: Delaware (passed by the Senate (11-10), tabled in the House Judiciary Committee); Nebraska (passed in the Senate Judiciary Committee (7-0) but filibustered in unicameral legislature); and New Hampshire (bill to abolish the death penalty will be considered in the next legislative session and if passed, would take effect January 1, 2015, Governor Hassan supports repeal).

Without leadership from our elected officials, California’s system will eventually “fall of its own weight,” predicted former Chief Justice Ron George in 2008. In the meantime, “[t]he failures in the administration of California’s death penalty law create cynicism and disrespect for the rule of law, increase the duration and costs of confining death row inmates, weaken any possible deterrent benefits of capital punishment, increase the emotional trauma experienced by murder victims’ families, and delay the resolution of meritorious capital appeals.”

One year after California failed by a very narrow margin to replace the death penalty in this state—nothing has changed. California continues to pour millions of dollars down the drain to support a sentence that it does not carry out. Justice is not served. The death penalty remains an illusory promise that makes a mockery of our judicial system. Judges, police officers, victims, clergy, and every day people alike across our state are calling for this farce to end.