What Does Narrow Loss of Prop 34 Mean for Death Penalty in California?

In the immediate aftermath of the loss of Proposition 34, the ballot measure that would have ended California’s death penalty and replaced it with life without parole, its ballot sponsors took solace in the relative closeness of the election.

“The mere fact that the state is evenly divided is nothing short of extraordinary. In 1978, 71% of the electorate supported the Briggs Death Penalty Initiative and now, after hearing the facts, voters are almost evenly split,” said Jeanne Woodford, the official proponent of the SAFE California Campaign and former Warden at San Quentin State Prison where she oversaw four executions.

“This is a dramatic shift in public opinion. Millions of Californians now prefer the sentence of life in prison without possibility of parole to a wasteful and risky death penalty that has no benefit.”

There is something to be said for that viewpoint.  After all, it was not that long ago that the death penalty was off limits for political discussion, with public support favoring it by 2 to 1 if not 3 to 1 margins.  The last presidential candidate to oppose it, at least publicly, was Michael Dukakis who famously was asked what if his wife and daughter were viciously murdered and proceeded to coldly explain his view against the death penalty.

At the same time, polling in the closing days of the campaign showed that perhaps the measure would pass.

“While we are disappointed by this narrow loss, the conversation on the death penalty in California has changed forever. For the first time ever, millions of voters know that the death penalty is exorbitantly costly, and that it costs far more than a sentence of life in prison without the possibility of parole,” said Ms. Woodford.

The backers of the measure studied the polls, and calculated that the public would back them on an economic rather than a moral argument.

That seemed to be bolstered by the Field Poll that came out the week before the vote.

The pollsters noted fiscal considerations seemed to be driving the late support, and the proponents of the measure have noted that the death penalty is more expensive than alternatives.  The poll found that a growing number of respondents now agree with this notion.

“When asked about this in the current survey, 53% of likely voters now say the death penalty is more expensive than life in prison, while 31% think it is more expensive to house a convicted felon for life,” the pollsters write.

They note, “This represents a significant change in voter opinion compared to past Field Poll measures.”

A September, 2011, Field Poll found slightly more believing life in prison was more expensive than the death penalty (43% to 41%), while in 1989 greater than a two to one majority felt this way (54% to 26%).

“When voters hear our message and they hear the facts, they are much more likely to support the initiative,” said Natasha Minsker, campaign manager. “It really shows that the voters are learning the death penalty is all cost and no benefit.”

But for all of that solace, there are some rather chilling revelations for those who favor ending the death penalty.  The measure failed by just over 500,000 votes.  While that is a relatively narrow margin, an analysis is somewhat sobering.

First, the measure (much like the passage of Prop 8 in 2008) failed in an electorate that would overwhelmingly vote for President Barack Obama.  President Obama would win California by 2.1 million votes, more than a 20% spread.

There was little drop off in the number votes in the Prop 34 ballot, but it received 1.4 million fewer yes votes than Barack Obama did.  If supporters of ending the death penalty wish to be successful in California, they have to understand where than 1.4 million vote drop off is coming from and why.

Part of that answer may lie in the county by county numbers.  Los Angeles County ended up supporting the proposition but only by a 53.8 to 46.2 margin.  That is not enough to overcome opposition in the more conservative parts of the state.

Yolo County only supported the measure 55.8 percent to 44.2 percent.  That’s a ten point drop off from its 65% support of Barack Obama.  Davis strongly went for the measure with more than 70% of support, but that means the rest of the county opposed it slightly.

There was also a divide within the anti-death penalty community over Prop 34 itself.  Proponents of the Proposition 34 crafted it much as Prop 36, which ended portions of the state’s three strikes law as a modest proposal.

That meant that the measure automatically converted death row sentences to life without parole.  The money savings would go to help victims rather than help those wrongly accused or potentially wrongfully accused of committing murder.

And it would end state funding for automatic appeals.

This led to a story in the San Francisco Chronicle in October in which it was reported, “Like other state prisoners, the 725 inmates on California’s Death Row can’t vote. But if they could, there’s evidence that most of them would vote against a November ballot initiative to abolish the death penalty.”

The article adds, “It’s not that they want to die, attorney Robert Bryan said. They just want to hang on to the possibility of proving that they’re innocent, or at least that they were wrongly convicted. That would require state funding for lawyers and investigators – funding that Proposition 34 would eliminate for many Death Row inmates after the first round of appeals.”

Mr. Bryan said, “Many of them say, ‘I’d rather gamble and have the death penalty dangling there but be able to fight to right a wrong.’ “

Reported the Chronicle: “All criminal defendants who can’t afford to hire a lawyer have a right to legal representation, at state expense, for their trial and appeal. But only those sentenced to death are guaranteed a state-funded legal team for the post-appellate proceedings known as habeas corpus.”

“Habeas corpus allows inmates to challenge their convictions or sentence for reasons outside the trial record – typically, incompetent legal representation, misconduct by a judge or juror, or newly discovered evidence. Such challenges are reviewed by both state and federal courts.”

The article continued, “For condemned prisoners, it often represents their best chance to stave off execution by presenting their claims to federal judges, who are appointed for life, rather than elected state judges. A ruling that leads to their acquittal, or even a finding of innocence, is also more likely in habeas corpus than in the earlier direct appeal.”

These people argue that Prop 34 would simply have sent more than 700 people to life without parole instead of the death penalty, without any counsel for which the state is willing to pay for.

Moreover, many oppose the notion of life without parole.

Christine Thomas, whose husband sits on California’s death row, argued, “Those who would replace executions with life without parole give up on murderers in exactly the same way. Abolitionists have something here to learn from the Prop 34 opponents whose itch for vengeance roars so hot that they’ll break the bank to scratch it. Where the death penalty is concerned, moral foundations matter, and you don’t show you respect for human dignity by being willing to lock up every last murderer and throw away the key.”

I view this as somewhat shortsighted.  I have a problem with the notion of keeping the death penalty in place in order to keep automatic habeas corpus appeals alive.  We are talking about a relatively small population of 700 people who, in a system in which there are no executions, are ironically somewhat privileged.

Unlike their life without parole counterparts, they get their free appeals, they get their private cells, and so they have nothing to lose by keeping the death penalty alive.

The answer to me seems rather simple.  The only way California’s death penalty is getting overturned is either by a Supreme Court ruling that makes the death penalty unconstitutional – something that is not going to happen in the foreseeable future – or by ballot initiative.

The problem of state funding should be taken up.  There are enough innocent people who are serving lengthy prison sentences that we ought to do it.  But that funding can be achieved through legislative action.

It makes little sense to keep the death penalty in place so that the state can spend $184 million a year on a system that is not working so that a few people but not others can get free appeals.

Despite the setback, Richard Dieter wrote in Monday’s Huffington Post, “Around the country the signs are clear that capital punishment is slowly on the way out. Even in California, the close defeat of the referendum to repeal the death penalty marks a significant milestone: in a state where almost three-quarters of the people supported the death penalty 30 years ago, now almost half the voters want it replaced.”

He adds, “Although California’s recent vote means the death penalty will remain, the 47% of voters who favored replacing it indicates many Californians have had a change of heart regarding capital punishment. By contrast, the initiative that reinstated the death penalty in 1978 garnered the support of 71% of voters.”

Indeed, he notes that Rose Bird was removed by 67% of the voters from her position as California’s Chief Justice “because she was perceived as blocking the death penalty.”

Mr. Dieter notes, “California’s use of the death penalty has declined in recent years: the state has not carried out an execution since 2006, and death sentences have dropped from 40 in 1981 to only 10 in 2011. Executions are not likely to resume soon because key issues remain unresolved. Questions related to California’s lethal injection process linger in state and federal courts, and challenges to the overall fairness of the death penalty are still being considered.”

Gil Garcetti, the former District Attorney of Los Angeles, shifted his position on the death penalty when he became aware of flaws in the system. A leading proponent of Proposition 34, Garcetti said, “Much like millions of other voters, I changed my mind on the death penalty when I understood that it serves no useful purpose, that spending $184 million annually on it is obscenely expensive, and that some of California’s condemned are likely to be innocent.”

So is California’s death penalty on the way out?  I would like to believe that’s the case.  But I cannot get over the fact that despite an electorate that voted overwhelmingly for Barack Obama and even to tax itself, we could not get rid of the death penalty.

That is a lost opportunity in a perfect storm.  Maybe conditions will be right again in four years, but who knows, with the crime rate ticking back up, what things will look like then.

—David M. Greenwald reporting

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