Why California Should Abolish Its Death Penalty and Why It Matters What That State Does

Posted in: Criminal Law

If asked to identify the state with the most people on its death row, most Americans would likely say Texas or maybe Oklahoma. Few would suspect that that dubious distinction would belong to California.

It has 704 prisoners on its death row, more than twice as many as Florida (343) and about three and a half times more than Texas (205).

However, unlike Texas, Oklahoma, or Florida, California is one of 11 death penalty states not to have carried out an execution in more than a decade. It hasn’t executed anyone since 2006, when it put Clarence Allen Ray to death for killing three people. Allen, who was sentenced in 1982, spent 26 years on death row and was 76 years old when he was executed.

Since the mid-1970s, California’s death penalty has been legendarily expensive and ineffective. Financially burdensome appeals, long delays, and difficulty procuring drugs for lethal injection have made death sentences in the state little more than a costly formality.

To be sure, the state has a history of notorious executions, including the 1960 case of Caryl Chessman. His death sentence evoked protests around the world and his execution incited a wave of Anti-American protests in several countries. A similar uproar accompanied the 2005 execution of Stanley ‘Tookie’ Williams, once a leader of the Crips street gang who became a dedicated anti-gang activist while on death row.

And because California has executed only 13 people since the Supreme Court reinstated capital punishment in 1976, its death row population is aging and older than one would find in a state that conducts more executions.

As David Carpenter, who has been on death row in California for 36 years, observes, “Because no one has been executed in California, death row inmates (in this state) have grown older with each passing year. If California was like Texas, [which] executes people shortly after being found guilty and [sentenced to death] I would have been executed years ago.”

Despite the rarity of its executions, the recommendation to end California’s death penalty made on November 17 by the state’s Commission on Revision of the Penal Code is significant both for that state and for the country as a whole.

It is significant because the state continues to be among the most active in handing out death sentences. 1140 people have received such sentences in California since 1976. And, in 2020, it handed out more death sentences than any state other than Florida.

The Death Penalty Information Center reports, “Fewer than 2% of counties in the U.S. account for more than half of the nation’s death-row population and more than 4/5ths of U.S. counties have no one on death row.” Two California counties, Riverside and Los Angeles, have led the country in death sentencing since 2013.

The Commission recommendation is important for another reason, namely as a counterweight to the fact that California voters did not vote to abolish the death penalty when that issue was put on the ballot in 2012 and again in 2016.

In both years, abolitionists turned to direct legislation to try to do away with the state’s death penalty.

As my co-authors and I noted in The Death Penalty on the Ballot: American Democracy and the Fate of Capital Punishment, the 2012 effort was spurred by a study of the state’s death penalty system authored by Judge Arthur Alarcón of the U.S. Court of Appeals for the Ninth Circuit and Paula Mitchell, a professor at Loyola of Los Angeles Law School. They reported that since California reinstated the death penalty in 1978, it had spent $4 billion to keep its capital punishment system functioning and that it spent over $300 million per execution.

The Alarcón-Mitchell report sent shockwaves through the California political world. But it did not spur legislative action to repeal the state’s death penalty

Alarcón and Mitchell took that inaction as a sign that the time was ripe to put the death penalty on the ballot. As they said, “it (is) clear that the future of California’s death penalty is now up to the voters.”

Despite favorable poll results during much of the 2012 ballot campaign and the help of national anti-death penalty groups, putting capital punishment on the ballot did not serve the abolitionists’ cause. Their Prop 34 was defeated, with 52% of the electorate voting no and 48% supporting the death penalty’s repeal and replacement with life imprisonment without the possibility of parole.

A similar story of dashed abolitionist hopes unfolded four years later in 2016. Reacting to unsuccessful litigation challenging the state’s death penalty, Mike Farrell, an actor and long-time abolitionist, filed a new initiative proposal (Proposition 62) to repeal capital punishment.

Prop 62 closely mirrored Prop 34. It would have repealed the death penalty, converted all active death sentences to life without parole, and required inmates to work and pay restitution.

In 2012, retentionists asked California voters to “Mend, not end” capital punishment. In 2016, they gave them a vehicle to do just that.

They put a counter-initiative on the ballot. Proposition 66, as it was called, shortened filing deadlines, ordered courts to announce opinions in death penalty appeals within 210 days of the initial briefing, required execution teams to carry out the sentence within ten days after a judgment became final, and prohibited public defenders from opting out of capital cases.

In the end, California’s voters struck a one-two blow to abolitionists’ hopes, rejecting Proposition 62 while approving Proposition 66. Proposition 62 garnered only 46% of the vote, while Proposition 66 was endorsed by 51% of the voters.

Much has happened with California’s death penalty since 2016, including most importantly the moratorium on executions imposed by Gov. Gavin Newsom in 2019 and the refusal of the State Supreme Court in August 2021 “to raise the bar for when a jury can sentence a defendant to capital punishment.”

But the Commission on Revision of the Penal Code’s report and recommendations, with its detailed findings about the death penalty’s racism, arbitrariness, complexity, and cost, offers the latest blueprint for arguments that abolitionists in California and elsewhere need to keep making against America’s death penalty.

Progress will depend, among other things, on their ability to address the public’s concern about escalating violent crime. Voters need to be convinced that the death penalty has not made, and cannot make, them any safer than would life without parole sentences.

But there are other important lessons for abolitionists to learn. Success in California is more likely to come about as it has in the 11 states that have abolished the death penalty since 2007—by appealing to elected officials rather than directly to the people.

The ball is now in Governor Newsom’s court. He should ask California’s legislature to pass a bill endorsing the end of capital punishment. Support by the governor and legislature might be just what is needed to push abolition across the finish line.

Some may call this strategy undemocratic. But if the experience of abolition in those states and in Europe is to be heeded, government officials responding to findings like those of the California Commission have to initiate and push for abolition. They have to muster the courage to lead.

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