Last week, Jeff Rosen, the District Attorney in California’s Santa Clara County, asked the superior court to resentence all of the people from his county who are now on the state’s death row. This request is a genuinely unprecedented and important step in the ongoing fight against capital punishment in the United States.
Prosecutors, who play a critical role as gatekeepers in the death penalty system, generally try to put people on death row rather than take them off it. According to the Los Angeles Times, Rosen is “the only prosecutor in California to have made such a blanket request.”
As the Times said, “[W]hile many prosecutors around the state in the nation have stopped the use of the death penalty moving forward, Rosen is the first to look back and answer the question—with collective action—if it isn’t fair now, how could have been fair then?”
Other prosecutors in California and around the nation should ask themselves that question and follow Rosen’s example.
Prosecutors set the tone for the way the death penalty is or is not used in the jurisdictions where they serve. As the Death Penalty Information Center said in 2013, “Each decision to seek the death penalty is made by a single county district attorney, who is answerable only to the voters of that county.”
As the DPIC noted, the way prosecutors have used that discretion meant:
Only 2% of the counties in the U.S. have been responsible for the majority of cases leading to executions since 1976. Likewise, only 2% of the counties are responsible for the majority of today’s death row population and recent death sentences. To put it another way, all of the state executions since the death penalty was reinstated stem from cases in just 15% of the counties in the U.S. All of the 3,125 inmates on death row as of January 1, 2013 came from just 20% of the counties.
For a long time, Philadelphia, Pennsylvania, was one of those counties. It offers a stark example of the difference a single prosecutor can make in the world of the death penalty.
Lynne Abraham, who served as Philadelphia District Attorney from 1991 to 2010, earned the title of one of the “deadliest DAs” in the United States for her enthusiastic pursuit of death sentences. As the Philly Voice put it, “While in office, Abraham obtained 108 death sentences.”
Under her leadership, about 40% of murder convictions in Philadelphia started as death cases, and a disproportionate number of the people for whom she sought such a sentence were Black.
At various times Abraham described herself as a “passionate” supporter of capital punishment and that she felt “nothing” about pursuing it.
Abraham was not alone. An article in The Intercept says that “The annals of the American death penalty are riddled with such prosecutors.”
The Intercept singles out prosecutors like “‘Cowboy’ Bob Macy, who spent 21 years as the district attorney in Oklahoma County, Oklahoma, and personally secured 54 death sentences, kept a personalized set of baseball cards on his desk that featured his ‘accomplishments’” and “Donald Myers, who secured 39 death sentences over a 40-year career as the top prosecutor in Lexington County, South Carolina, [and] was known as ‘Doctor Death.’”
Looking again at Philadelphia shows how changing the DA can dramatically change the death penalty.
Fast forward to 2017. Seth Williams, who was then DA, sought a death sentence in only 12% of murder cases.
Williams’s successor, Larry Krasner has gone much further. He promised during his first campaign for DA that he would never seek the death penalty.
Not only has he made good on that promise, but in 2019 Kasner asked Pennsylvania’s Supreme Court to declare capital punishment unconstitutional. He called it “unreliable and arbitrary because it has historically, and unevenly, targeted men of color.”
As The Intercept reports:
To come to that conclusion, his office had studied 155 death sentences handed down in Philadelphia between 1978 and the end of 2017…. The results were dismal: A majority of the defendants were poor and had received deficient legal representation. Seventy-two percent of the cases were eventually overturned, the majority resulting in a lesser sentence.
Throughout his time as Philadelphia DA, Krasner has been very open about saying that the death penalty “really is not about the worst offenders. It really is about poverty. It really is about race.”
Krasner is a leading reform prosecutor, and he is one among many in that group who have come out against the death penalty. In 2022, as NBC News reported, “Fifty-six elected prosecutors from 26 states pledged to work to effectively end the death penalty, including by refusing to support the execution of people with intellectual disabilities, seeking commutations, and helping to overturn sentences in cases of racial bias, negligent defense counsel or other misconduct.”
Santa Clara Country’s Jeff Rosen is not one of them. In fact, he once supported the death penalty.
But, in some ways, what he is doing is even more consequential than what someone like Krasner has done. He is confessing error and trying to right wrongs that may have been done to those prosecuted and sentenced to death in the past.
As Rosen explained in his request for the court to resentence the 14 death row inmates from Santa Clara County, “We are not confident that these sentences were attained without racial bias. We cannot defend the sentences and we believe that implicit bias and structural racism some role in the death sentence.”
Rosen told the Los Angeles Times that his request for resentencing does not mean that things “are as bad today as they were 50 years ago. I completely reject that idea. But,” Rosen observed, “I also trusted that as a society we could ensure fundamental fairness of the legal process for all people. With every exoneration, with every story racial injustice, becomes clear to me that this is not the world we live in.”
Rosen believes that because of this country’s changing death penalty attitudes, “many of the crimes that led to the death penalty decades ago would not have garnered the same punishment today. Some of the perpetrators were convicted as teenagers, some were accessories to the crime at a time when laws made fewer distinctions. Many have been in prison for more than 30 years. Some had unfair trials.”
What Rosen is hoping to accomplish by reopening old cases is to right wrongs and make the past accountable to the present. His effort is a reminder that doing justice, and ensuring that justice is done, has no statute of limitations.
It is a lesson that other prosecutors should learn.