By Lovepreet Dhinsa and Mia Machado
CALIFORNIA – The Committee on the Revision of the Penal Code is currently examining the death penalty in California for the first time in 13 years.
In 2008, the Committee conducted an extensive review into the death penalty.
Upon determining that it was ineffective, the Committee identified three areas of improvement: increasing funding, narrowing the scope of who receives the penalty, and repealing the penalty altogether.
California has yet to apply any of these recommendations.
The Committee on the Revision of the Penal Code reviewed recent literature and studies that were not previously available, and noted that California currently has the largest number in the country of individuals sentenced to death row, approximating 707 people.
The large majority of these individuals are currently awaiting appointment of counsel, which takes an average of over 30 years to complete all appellate procedures. Although no executions have occurred in the last 15 years, the penalty remains in the law, noted the Committee.
As a result, the majority of people do not complete their appellate procedures, often dying during the process. And yet the state continues to funnel over $5 billion tax dollars into the death 
penalty system.
In comparison to California, a majority of others states in the U.S. either have never used the death penalty or have not had it in the law.
Several state political leaders, such as Gov. Gavin Newsom, have voiced their opinions against the penalty, in which “no area of criminal law in California is more deeply confounding politically, legally, and morally,” said the Committee.
In 2019, the governor had filed an amicus brief in the California Supreme Court, arguing that the penalty was unconstitutional and the application process was racially biased.
Similarly, district attorneys in Los Angeles, Santa Clara, and other counties have also shown their support against the penalty, specifically in striking the penalty altogether.
In fact, a group of current and formerly elected prosecutors, the attorney general, and other law enforcement leaders have recently stated that “[m]any have tried for over 40 years to make America’s death penalty system just. Yet the reality is that our nation’s use of this sanction cannot be repaired, and it should be ended.”
Although California’s leaders have endorsed the elimination of the penalty, California’s voters remain conflicted on the penalty, specifically arguing that the penalty is a direct conjunction to providing justice for the victims involved.
However, a recent poll conducted by U.C. Berkeley’s Institute for Government Studies proved that a majority of voters supported the governor’s decision to eliminate the penalty, yet 61 percent of individuals supported keeping the death penalty as a possible punishment for serious crimes.
In analyzing the history of California’s death penalty, the Committee points to a series of challenges the state has faced with executions and with legal infirmities unique to California.
California’s original death penalty was struck down in 1972 by Supreme Court decision People v. Anderson (1972) because it was in direct violation of the 8th Amendment, the prohibition against cruel and unusual punishment.
During the decision of People v. Anderson, it was “concluded that capital punishment is impermissibly cruel. It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.”
One year later, California’s constitution was amended. In June 1972, Furman v. Georgia stipulated that the death penalty could not be applied in an arbitrary manner, which allowed the states to adopt statutes that may apply in certain circumstances.
In 1978, California voters approved this initiative, known as the “Briggs Initiative” after Senator John Briggs pushed for it. This expanded the scope of the death penalty to apply to all homicides. An additional amendment was also added, which allowed death and life in prison without the possibility of parole for special circumstances, such as killing a juror, car-jacking, drive-by-shootings, and gang-related murders.
The state of California has unique challenges with executions. After narrowly rejecting the repeal of the death penalty on two separate occasions, California voters attempted to “speed up” or “fix” the death penalty with the passage of Prop. 66.
However, since its passage, “the pace of litigations in death penalty cases has only slowed further.”
Despite reinstating the death penalty, no executions were carried out in California for the 25-year period from 1967 and 1992, until Robert Alton Harris became the first person executed during the modern death penalty era when he was put to death in the gas chamber in 1992.
But this method was soon banned by the courts, due to the execution style’s “cruel and inhumane” nature.
Despite then switching to lethal injection, “a federal district court ruled that “California’s lethal injection protocol – as actually administered in practice – create[d] an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment.”
This ruling resulted in a court-imposed moratorium on executions while the state sought to devise a new procedure. Although that case has since been settled by the parties, active litigation continues.
In 2019, Gov. Newsom issued an executive order imposing a moratorium on all executions, stating “California’s death penalty system is unfair, unjust, wasteful, protracted and does not make our state safer.”
In light of the governor’s moratorium, the parties settled the court challenge to California’s execution protocol, with the proviso that the case will automatically be reinstated should the moratorium be lifted.
However, litigation continues, as three elected prosecutors have attempted to intervene in the case, in an effort to set aside the settlement and to advocate that the state’s lethal injection protocol is constitutional.
California’s death penalty remains, technically, in effect, and the state’s Supreme Court has yet to address its many failures.
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Sadly and politically, this is what California is dealing with:
Sent to a thousand or so folks in California, inclusive of media and prosecutors, March, 2019
Gov. Newson: Dead Wrong on Death Penalty
Newsom said he respected the citizens choice in supporting executions and speeding up appeals. He lied and, then, he lied:
“As a gubernatorial candidate, Newsom solemnly pledged to abide by the voters’ death-penalty decisions, despite disagreeing with them. He promised to be “accountable to the will of the voters” and not let his “personal opinions” interfere with “the public’s right to make a determination” about capital punishment. His spokesman last year told the San Francisco Chronicle that Newsom “recognizes that California voters have spoken on the issue and [would] respect the will of the electorate.” In editorial-board meetings, Newsom agreed that “it would be an affront for a governor to say ‘Here’s what I’m going to do by fiat.’ ” (Gavin Newsom’s death-row betrayal, by Jeff Jacoby, The Boston Globe March 20, 2019)
Newsom’s, alleged, concerns over the death penalty, in bold, with my rebuttal thereafter:
Bias by race:
Nationally, white murderers are twice as likely to be executed, as are black murderers (1) and have an execution rate 41% higher than black death row inmates (2).
From 1980-2008, crime statistics show that “for the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape. (3)
Robbery/murders and rape/murders are the most common death penalty crimes (4).
There is no race of the defendant nor race of the victim bias effect when looking at capital murders (5).
Bias against the poor
We execute 0.2% of our murderers (6). It is, solely, dependent upon one’s definitions of poor and rich, as to whether the rich, a vast minority of those who commit robbery/murders and rape/murders, are executed at rates higher or lower than the poor, the vast majority of capital murderers.
We, the people, spared no expense in defending Oklahoma City bomber Timothy McVeigh (7). He was executed four years after sentencing (8).
Too expensive
The two recent Ca studies for death penalty vs life costs are a sham (9).
Both studies included a cost of $15,000/yr for lifers, when, at that time, the “average” cell cost was $45,000/yr (10), with high security cells at $70,000- $174,000/yr.(11), which would equate to about $5 million, for 50 years, at $100,000/yr, for capital murderer lifers, which does not include pre trial, trial, nor appeals costs, nor specific geriatric care for elderly lifers, which can be 3-9 times the cost of an average cell (12) – likely, adding millions more to the total, which results in life being more expensive than the death penalty, all left out of those “studies”.
Innocents at risk
Newsom parrots a study that “predicts” that 1 out of 25 on death row (4%)”might” be innocent. The foundation of that “study” is this:
The current claim by death penalty opponents (DPO) is that 164 (1.8%) (13) were “exonerated” from death row, which is an extension of the 69 “exonerated” fraud, from 1997 (14), when DPO thought it a good idea to redefine both “innocent” and “exonerated” (15), as if they had redefined lie as truth, and then stuck a bunch of cases into those “revised” definitions.
That deception is the foundation of the 1 out of 25 “study” (16).
In 2005, New York times reporter Adam Liptak estimated that the false innocence claims from death row amounted to 71%, or 116 of the, now, 164 claimed “exonerated”, which equals 48 proven innocent, or 0.6%, all of whom have been released (17). Other studies find it to be slightly less or slightly more (18) – likely, the most accurate sanction, as its super due process would predict.
We might have proof that innocents were executed as recently as 1913 – two brothers from South Carolina (19). Tragic.
The major innocents problem, nationally, as within California, is this:
Since 1973:
16,000 innocents have been murdered by those KNOWN murderers that we have allowed to murder, again – recidivist murderers (20);
400,000 innocents have been murdered by those KNOWN criminals that we have allowed to harm, again – recidivist criminals (20).
Living murderers harm and murder, again. Executed ones do not.
Where are the innocents at risk?
No deterrence
The deterrent effect of severe sanctions and severe negative incentives has never been negated and cannot be. The evidence that some are deterred is overwhelming (21). The evidence that none are deterred is non existent.
Therefore, without the death penalty/executions, we risk sacrificing more innocent lives. With the death penalty/executions, we “risk” saving more innocent lives.
Bias against the mentally ill
Newsom is well aware that competency is considered pre trial, trial and within appeals, all to determine if the defendant/convicted party is, legally, competent to be held responsible for their crimes.
Polling
If the poll describes an actual death penalty crime, support goes to 70-80% (22) For example, ask: Do you support jurors having the option between a life or death sentence in cases wherein children have been raped/tortured/murdered? With answer options of — sometimes — always — never. Just do the poll.
Execution support was 81% for Oklahoma City bomber Timothy McVeigh, with near equal support over all demographics (23).
Death penalty problems? Nope. Management problems.
Newson blames the death penalty for creating all of its own problems, oblivious to the fact that human management has been irresponsible, not the death penalty.
For example, responsible management exists in Virginia, wherein, since 1976, they have executed 112 murderers, within 7 years of FULL appeals, prior to execution (24).
Had California management been responsible, there would, now, be 100 murderers on death row, not 737.
Newson has shown his contempt for citizens, innocent rape/torture/murder victims and their survivors.
Murderers and their advocates are jubilant.
1) 56% of those executed are white, 34% black (a). The Black level is 12.7 times greater than the White level for homicide (fn 2).
(a) although a very untrusted anti death penalty site, this stat is correct – DPIC, Facts About The Death Penalty, March 12, 2019, https://deathpenaltyinfo.org/documents/FactSheet.pdf
NOTE: 2016 – 20 prisoners were executed, 16 white, 2 Hispanic, 2 black. 70 prisoners released from under sentence of death by means other than execution, p 2, Highlights, BJS Capital Punishment Report, 2016, April, 2018,
2) From 1977-2012, white death row murderers have been executed at a rate 41% higher than are black death row murderers, 19.3% vs 13.7%, respectively. ( Table 12, Executions and other dispositions of inmates sentenced to death, by race and Hispanic origin, 1977–2012, Capital Punishment 2012, Bureau of Justice Statistics, last edited 11/3/14)
3) REASSESSING TRENDS IN BLACK VIOLENT CRIME, 1980.2008: SORTING OUT THE “HISPANIC EFFECT” IN UNIFORM CRIME REPORTS ARRESTS, NATIONAL CRIME VICTIMIZATION SURVEY OFFENDER ESTIMATES, AND U.S. PRISONER COUNTS, See pages 208-209, FN 5, DARRELL STEFFENSMEIER, BEN FELDMEYER, CASEY T. HARRIS, JEFFERY T. ULMER, Criminology, Volume 49, Issue 1, Article first published online: 24 FEB 2011 http://onlinelibrary.wiley.com/doi/10.1111/j.1745-9125.2010.00222.x/pdf
4) You have to go through each “Offender Information” link, Death Row Information, Offenders on Death Row, Texas Department of Criminal Justice,
https://www.tdcj.texas.gov/death_row/dr_offenders_on_dr.html
5) paragraphs 1, 2, 4, 5, 6, 7 & 8
RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
http://prodpinnc.blogspot.com/2012/07/rebuttal-death-penalty-racism-claims.html
6) Using average of 18,000 murders per year (1973-2018), with 1493 executions, or 0.18%, see FBI data at Disaster Center, http://www.disastercenter.com/crime/uscrime.htm
7) McVeigh defense cost U.S. $15 million
https://www.chicagotribune.com/news/ct-xpm-2001-10-28-0110280258-story.html
8) 1997-2001
9) Death Penalty Costs: California
http://prodpinnc.blogspot.com/2012/08/death-penalty-costs-california.html
10) ibid
11) ibid
12) Older prisoners (2005 and 2011) cost 3-9 times more than younger prisoners, from: Human Rights Watch. Old Behind Bars: The Aging Prison Population in the United States.Human Rights Watch; Jan 27, 2012 & American Civil Liberties Union. At America’s Expense: The Mass Incarceration of the Elderly. American Civil Liberties Union; New York, NY: Jun, 2012
13) The Innocence List, DPIC, as of November, 2018,
https://deathpenaltyinfo.org/innocence-list-those-freed-death-row
14) ibid, see first 69, up to 1997. NOTE – The modern era of death penalty cases did not begin until after Gregg v Georgia, 1976, meaning the list is not relevant, to modern standards, until the 16th case, Larry Hicks, in 1978.
15) see sections 3 and 4
The Innocent Frauds: Standard Anti Death Penalty Strategy
http://prodpinnc.blogspot.com/2013/04/the-innocent-frauds-standard-anti-death.html
and
The “Innocent”, the “Exonerated” and Death Row:
An Open Fraud in the Death Penalty Debate: How Death Penalty Opponents Lie
http://prodpinnc.blogspot.com/2013/03/the-innocent-exonerated-and-death-row_19.html
16) The 4.1% “Innocent” on Death Row: More Nonsense
https://prodpinnc.blogspot.com/2015/04/the-41-innocent-on-death-row.html
17) The Death of Innocents’: A Reasonable Doubt, By Adam Liptak, NY Times, JAN. 23, 2005,
18) ibid fn 15
19) South Carolina pardons black brothers convicted of 1913 killing, By Alex Spilliu, The Telegraph, 18 Oct 2009, https://www.telegraph.co.uk/news/worldnews/northamerica/usa/6366628/South-Carolina-pardons-black-brothers-convicted-of-1913-killing.html