Despite a broad trend toward increasing skepticism and opposition around capital punishment, California’s ballot initiative ending the practice faces a steep climb heading into November. 

The Institute for Social Research at Sacramento State University, through the CALSPEAKS public-opinion project, found that respondents “opposed Proposition 62, which would end the death penalty in the state, 45-37. All other propositions in the poll had comfortable support,” KPBS noted — a dual anomaly, given Californians’ history of generally sinking ballot measures instead of voting them through. 

The numbers cut against a persistent U.S. trend in public opinion away from the death penalty. “A Pew Research poll published late last month revealed that only 49 percent of Americans now favor executing murderers, a seven-point decline from March 2015,” the Marshall Project observed. “Those poll numbers may reflect growing public concern about botched executions, the high costs of operating death rows, and the suspicion that states may have executed innocent people.”

A unique decision

California was not the only state to prompt a referendum on the practice. “Meanwhile, voters in Nebraska will be asked whether they want to reinstate the death penalty and Oklahoma residents will decide whether to make it harder to abolish it,” according to the Associated Press. Last year, the Nebraska Legislature scrapped capital punishment, raising questions about whether voters would have done the same; Oklahomans saw a freeze in executions after two consecutive errors.

“The votes for the three states come amid an evolution for capital punishment in the U.S. Executions have mostly been in decline since the turn of the century and last year reached their lowest level in 25 years, with 28 prisoners killed. Capital punishment has been either legislatively or judicially repealed in eight states since 2000,” the wire noted, citing Robert Dunham, executive director of the Death Penalty Information Center.

But dueling measures made it onto California’s ballot this year, driving financial backing from rival groups. Silicon Valley has shaped up to be the champion of the ban, while law enforcement organizations have lined up against it. “Stanford Prof. McKeown tops the list of donors to Proposition 62, followed by Netflix CEO Reed Hastings, Mr. Graham, and Laurene Powell Jobs, widow of the former Apple Inc. CEO.,” the Christian Science Monitor reported. “Their support, totaling $4.2 million, puts them in opposition with Proposition 66, another ballot initiative that seeks to speed up the death penalty system. The latter is supported by many police associations, prosecutors and sheriffs, and has contributions totaling $4.3 million.”

Mobilizing former inmates 

Support for Prop. 62 has focused around the kind of flaws apparent in Oklahoma, rather than the more abstractly principled objection to capital punishment that has traditionally driven political activism. “In the nearly 40 years since California revived the death penalty, executioners at San Quentin have put 13 convicted murderers to death,” the Los Angeles Times editorialized. “But were they all truly the ‘worst of the worst’ of the state’s killers? Were they all even killers? There’s a strong argument to be made that at least one of the executed inmates, Thomas Thompson of Laguna Beach, may, in fact, not have been guilty of murder.”

California has also attracted outside opponents to capital punishment. Juan Melendez, an ex-death row inmate, visited the Thomas Jefferson School of Law in San Diego to level a far broader kind of criticism than Prop. 62’s supporters have typically offered. “People need to know that it is racist,” he said, according to U-T San Diego. “People need to know that it costs too much. People need to know it does not deter crime. People need to know that it’s cruel and unnecessary. We have alternatives!” In Los Angeles, meanwhile, other former inmates pressed the issue with a religious audience. “Death row exonerees Nate Fields and Sabrina Butler joined a diverse group of faith leaders to talk about the importance of ending California’s death penalty during an interfaith breakfast hosted at Holman United Methodist Church,” the L.A. Sentinel reported.

Tobacco tax one of the most heated ballot measures

Good morning! Happy hump day. We’re talking about ballot measures first this morning. 

There’s broad agreement that the 17 initiatives on the statewide ballot on November 8 cover some of the most significant public-policy issues to come before voters in more than a decade.

For instance, voters will have a chance to legalize marijuana, outlaw the death penalty, put an end to the state’s virtual ban on bilingual education, approve a broad gun-control package and reduce prison sentences for some non-violent felons.

But two months before the election, one of the highest-visibility measures also is fairly narrow in scope. Proposition 56 would raise California’s relatively low tobacco tax (relative to other states) by $2 a cigarette pack – and increase taxes by an equivalent amount on all other tobacco products (cigars, chewing tobacco, etc.).

It also would significantly increase taxes on electronic cigarettes and vaping products. It has high visibility right now because of a series of advertisements opponents are running on radio stations across the state.

CalWatchdog has more.  

In other news:

• “Orange County plans to open a temporary homeless shelter in a former Santa Ana bus terminal within 30 days in an effort to address mounting pressure to reduce a large homeless encampment that has engulfed nearby government offices, causing health and safety problems. The action came just hours before the Santa Ana City Council approved a resolution declaring ‘a public health and safety homeless crisis.’” The Orange County Register has more. 

• “California voters face two capital punishment choices on the November ballot: End the death penalty or speed the way for execution. On death row, inmates are conflicted on the prospects of one-shot appeals, mandated lawyer assignments and simplified execution rules meant to rekindle a capital punishment system that hasn’t executed anyone in a decade, or the simple alternative, throw out the death penalty in favor of life without parole.” The Los Angeles Times has more. 

• Lynwood is the first city in Los Angeles County to approve marijuana cultivation, reports LA Weekly.

• “The mighty grizzly bear ruled California’s valleys, forests and coasts with fierce claws and jaws until people shot the last ones nearly a century ago. Now an environmental group is asking the state to consider bringing it back,” reports The San Jose Mercury News, which is showing off its flashy new website this morning.
• Quote of the day: “Reintroducing grizzly bears to California would be idiotic,” said Pete Margiotta, a Walnut Creek resident and longtime hunter. “Somebody is going to get killed.” 

Legislature: 

• Gone ’til December.

Gov. Brown:

• Speaking at 12:30 p.m. at the California Independent System Operator’s eighth annual stakeholder symposium in Sacramento.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @_RDeLaRosa

“The case was brought by Richard D. Boyer, who has cited the stress of his long wait on death row after being sentenced in 1984 for the murders of an elderly couple” in the California city of Fullerton, the New York Times noted. The California Supreme Court had overturned Boyer’s sentence “because of a police error,” as the Los Angeles Times reported, “but he was tried and convicted again and sentenced to death in 1992.”

Justice Steven Breyer filed a fierce dissent. “More California death row inmates had committed suicide than had been executed by the state,” he wrote, according to the Times. 

“Indeed, only a small, apparently random set of death row inmates had been executed. Put simply, California’s costly ‘administration of the death penalty’ likely embodies ‘three fundamental defects’ about which I have previously written: (1) serious unreliability, (2) arbitrariness in application and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”

Breyer cited a 2008 report issued by the California Commission on the Fair Administration of Justice that condemned the state’s laborious and ineffective capital punishment regime. It found, The Hill reported, “that more than 10 percent of the capital sentences issued in California since 1978 had been reversed. Many prisoners had died of natural causes before their sentences were carried out and more California death row inmates had committed suicide than had been executed by the state.”

A lone dissenter

Breyer, a well-known opponent of the death penalty, rehearsed arguments he fleshed out recently in another dissent. “Last year, Breyer, joined by Justice Ruth Bader Ginsburg, said he believed capital punishment as practiced in America was unconstitutional because the system has proven to be unreliable and random,” the Los Angeles Times added.

But on this occasion, Ginsburg did not join in Breyer’s dissent. And the court disagreed that the dysfunction Breyer invoked rose to the level of an infringement of Boyer’s constitutional rights — leaving prior rulings the final word on the matter for now. In a similar 1999 case, as the Times recalled, Justice Clarence Thomas doubted the existence of “any support in the American constitutional tradition or in this court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

Justice deferred

Ironically, Boyer’s suit arose from the fact that executions in California have been exceedingly rare. “The last execution in California took place in 2006, when the state executed 76-year-old Clarence Ray Allen for three counts of first-degree murder,” according to the Washington Post. “Even before the current decade-long hiatus — prompted by concerns over lethal injection protocols — it was still rare for the state to put someone to death. Since 1976, the year the U.S. Supreme Court reinstated the death penalty, California has executed 13 of its death row inmates; Texas, far and away the country’s most active death-penalty state, executed 13 inmates last year alone.”

But California has amassed a backlog of 743 inmates on what is “by far the nation’s biggest death row,” the Los Angeles Times observed. Although the state’s moratorium on executions was lifted in November, as the San Jose Mercury News noted, controversy has already arisen over one high-profile case in which a death row inmate has sought clemency from Gov. Jerry Brown. The inmate, Kevin Cooper, who was sentenced to die on May 15, 1985 and has spent 31 years on death row at San Quentin Prison, “has maintained his innocence since his arrest on July 30, 1983,” according to the paper. 

With a widespread shortage of execution drugs used in the now-familiar “cocktails,” officials have now aimed to “let corrections officials choose from four types of powerful barbiturates to execute prisoners,” according to KCRA Sacramento. “A choice would be made for each execution, depending on which drug is available. The single drug would replace the series of three drugs that were last used in 2006, when 76-year-old Clarence Ray Allen was executed for ordering a triple murder.”

“The plan to use barbiturates to execute inmates sentenced to die in the most populous U.S. state drew fire from religious activists, who called capital punishment grisly and anti-democratic at a hearing in Sacramento,” Reuters reported. “Law-and-order advocates urged its adoption.”

“If the new protocol is adopted by corrections officials and voters do not outlaw the death penalty next November, the state could theoretically begin executing 18 prisoners who have exhausted their appeals. Legal challenges to the lethal injection drug, however, could drag on for years.”

Opponents of the new plan insisted that it amounted to a trial-and-error approach. “The American Civil Liberties Union of Northern California is suing to obtain at least 79,000 corrections department documents related to lethal injections,” KCRA noted. “It says the regulations may lack enough safeguards to prevent the state from using backdoor ways to obtain execution drugs that manufacturers never intended for that purpose.” Past cocktails have been harshly criticized for sometimes failing to execute inmates as quickly and painlessly as lethal injection was intended to do.

Languishing inmates

Much of the frustration around the issue stems from the unique backlog that has built up on the state’s Death Row. “It’s been 10 years since California executed its last death row inmate. Since then, the death row population has grown to 745,” KQED noted. “Since 1978, 117 death row inmates have died, the vast majority from natural causes and suicide.”

Although California’s Death Row has ballooned to an extraordinary size over the years, other states have found themselves burdened by court requirements in similar ways. Florida, second to California in the size of its death row population, recently faced a Supreme Court ruling that has thrown the status of its condemned inmates into question. “Death penalty prosecutions are stalled, and state lawmakers are hustling to write and pass a new death penalty law before their session ends in six weeks,” the New York Times reported. “Also in question is whether the 390 inmates awaiting execution in Florida will remain on death row or be resentenced to life in prison.” The predicament, which has gained the attention of reformers and activists across  the political spectrum, has contributed to the rise of execution reform as a hot-button issue around the country.

Divided opinion

California’s own controversy has strengthened amid a sharp divide in statewide public opinion over capital punishment. Voters, a new poll found, have “now equally divided between scrapping the death penalty altogether and speeding up the path to executing inmates on the nation’s largest death row,” according to the San Jose Mercury News. “The poll found that 47 percent of voters favor replacing the death penalty with life in prison without the possibility of parole in California, up from 40 percent in 2014. But at the same time, the poll shows that 48 percent of registered voters would support proposals to accelerate the state’s notoriously slow system of resolving death penalty appeals to pick up the pace of executions.” Both those proposals were likely to wind up on this election year’s ballot in the form of initiatives.

Opinions have split even among Death Row inmates themselves. “Opinions vary, just like I’m sure they vary on the outside,” one inmate, Charles Crawford II, told KQED. “Some of us are against it, some of us not so much. Some of us, it’s like if they’re going to do it, do it and not have us sittin’ here for 20 or 30 years.”

A new coalition

The first group, Taxpayers for Sentencing Reform, has teed up the Justice That Works Act of 2016, an initiative that would fully repeal the Golden State’s use of capital punishment. Criminal sentencing would max out at life in prison without the possibility of parole, plus “a provision that requires them to work in prison and forward most of the wages to the families of victims,” as the group noted in a press release.

Taxpayers for Sentencing Reform has assembled a broader-than-expected coalition of interests, including some conservatives who see the current system as too dysfunctional to continue. “One supporter of the initiative to repeal capital punishment in California is Ron Briggs, who was a manager of the successful 1978 initiative campaign to expand the state’s death penalty law. That measure was sponsored by Briggs’ father, state Sen. John Briggs, R-Fullerton,” the San Francisco Chronicle reported. The younger Briggs described California’s capital punishment regime as “just another dysfunctional big-government program that wastes billions of dollars without achieving its goals,” according to the Chronicle.

Although officials in Sacramento have claimed a full repeal would save not more than $150 million yearly, Taxpayers for Sentencing Reform asserted in its release that the state of California spent “at least $5 billion in sentencing more than 900 people to death” since 1978, while actually executing “13 of those 900.”

The workings of the capital punishment have taken on a particular sense of statewide urgency as death sentences have risen in California while falling nationwide. Southern California alone has taken a national lead in sentencing the convicted to death. “All told, courts have sentenced eight people to death in Riverside County this year, more than any other county in the United States,” the Los Angeles Times reported, citing a report issued by the nonprofit Death Penalty Information Center. “The county accounts for 16 percent of all death sentences imposed in the United States this year, the report said.”

Injection trouble

The dip in U.S. executions has been driven in part by a series of lawsuits over botched and painful administrations of lethal injection drugs. “In the last few years, states around the U.S. have struggled to administer lethal injections to death row inmates after pharmaceutical companies stopped selling drugs to departments of corrections that were formerly in wide use,” as Time noted. “In response, states have turned to previously untried drugs like midazolam, which was used in several prolonged lethal injections in Oklahoma, Arizona and Ohio. The drug was at the heart of a Supreme Court case earlier this summer that ultimately found Oklahoma’s lethal injection protocol did not violate the Eighth Amendment’s ban on cruel and unusual punishment.”

California stopped executing Death Row inmates in 2006, when a federal judge determined “that flaws in lethal injections and staff training created an undue risk of a botched and agonizing execution,” the Chronicle recalled.

Mend it, don’t end it?

With an eye toward reforming California’s system without scrapping the death penalty completely, state district attorneys have created an initiative that would save money and reduce the agony of languishing on Death Row by accelerating inmates’ appeals. “It would also change the way they’re housed to save money,” as KPPC reported. Their Death Penalty Reform and Savings Act of 2016 “would limit inmate appeals, which can drag on for decades, and expedite executions,” according to KQED. Like the Justice That Works Act, the DA’s initiative “would also give the California Department of Corrections and Rehabilitation more latitude in housing condemned inmates and require them to work, with 70 percent of their wages going to crime victims,” the station added.

The turnaround arose from an unlikely place — the 9th Circuit Court of Appeals, itself overturned with such relative frequency that it has developed a reputation for adventuresome rulings. “In a unanimous decision, a three-judge panel of the U.S. 9th Circuit Court of Appeals rejected the argument on a technicality that it did not address the question of whether life on death row in California constituted cruel and unusual punishment,” as the Los Angeles Times reported. “Lawyers who argued on both sides of the case said the appellate ruling was decided on largely technical grounds and leaves unanswered the larger question of whether lengthy delays are unconstitutional.”

In the details

The ruling hinged on a procedural matter and a theoretical one. “Citing Supreme Court precedent, the panel said that in a habeas corpus petition, as was filed on behalf of a condemned prisoner in this case, the federal courts may not retroactively apply ‘new rules of constitutional criminal procedure’ to overrule a state criminal court’s decision,” the New York Times observed.

Also at issue was whether the very long delays in execution that many faced on California’s death row amounted to a form of torture, running afoul of the constitutional protection against cruel and unusual punishment. “A lower court had determined that the system constituted cruel and unusual punishment because of delays and uncertainty with appeals,” Reason explained. “California has hundreds of prisoners on death row but hasn’t executed anybody in nearly a decade over challenges.” The panel’s ruling left open the question of whether the state’s death penalty regime could be effectively fought on other grounds.

Seizing the initiative

But the battle lines have already shifted from the courts to the ballot box. An initial hurdle has been cleared in the effort to turn policy over to the people themselves. “Death penalty opponents led by former ‘M-A-S-H’ star Mike Farrell can begin collecting signatures for their latest attempt to repeal the ultimate penalty, increasing the chances that California voters will be faced with a choice between competing initiatives next year,” the Associated Press reported. “The secretary of state’s office said Friday that backers have until May 17 to gather nearly 366,000 signatures if the measure is to appear on the November 2016 general election ballot.”

As a result of the litigation, advocates for continuing capital punishment have been put in the unorthodox position of agitating to speed up executions in the name of due process. Before the court, prosecutors had said “delays resulted from its unusually careful efforts to protect the rights of the condemned, and said there was no evidence that the outcomes were random,” as the New York Times noted.

Now, according to the AP, death penalty supporters “are attempting to gather enough signatures for their proposal to speed up executions by providing more appellate lawyers and speedier appeals. That campaign was announced earlier this month by several prosecutors, police officers and family members of victims.” The effort gained steam early with the support of district attorneys statewide, the wire noted separately, “including Orange County’s Tony Rackauckas and San Bernardino County’s Mike Ramos.”

“There are currently 18 inmates who’ve exhausted all appeals and are cleared for death once a suitable form of execution is approved. Ramos estimates there are another 140 who are awaiting their final appeal before the state Supreme Court. The proposed overhaul would get the inmates to this final-appeal stage more quickly, but would do nothing about the growing backlog of cases awaiting the seven justices on the state’s high court.”

“The U.S. 9th Circuit Court of Appeals is scheduled to hold a hearing in Pasadena on a lower-court decision that found California’s death penalty system unconstitutional and plagued by delays that have robbed a death sentence of any value in deterring crime,” the Los Angeles Times reported. “The ruling overturned the death sentence of Ernest Jones, who was convicted of rape and murder.”

The closely-watched trial brought a close to months of anticipation in the wake of a controversial ruling against the state’s current practice of implementing capital punishment.

Pushing boundaries

Last year, as the Washington Post noted, Federal District Judge Cormac Carney “argued that because of the extremely low likelihood of execution and long delays on death row, the system was actually a penalty of life without parole with the remote possibility of death. His ruling declared that execution after such a long delay serves no retributive or deterrent purpose beyond the long prison term, and is therefore arbitrary and unconstitutional.”

According to Carney, although a better-managed program might produce a different legal result, the dysfunctional, irrational character of capital punishment in California led to a harsh judgment.

At stake was a new and broad interpretation of cruel and unusual punishment. “Jones said in his appeal that the state didn’t provide a fair and timely review of his case, the delay exceeded that in other states and death row’s conditions constituted torture,” the Times added. “He also said the uncertainty of his execution inflicts suffering and, if it ever goes forward, it will serve no legitimate purpose for retribution or deterring other criminals.”

Legal hurdles

Although activists have long criticized the implementation of the death penalty in California and other states as both inefficient and inhumane, even legal scholars with vociferous objections to capital punishment cautioned that the core structure of the federal judiciary could well prevent the 9th Circuit from upholding Judge Carney’s ruling against the death penalty.

Prof. Erwin Chemerinksy, dean of the UC Irvine Law School, told the Times that he believed Carney’s opinion to be “very strong as to why the system violates the 8th Amendment,” which prohibits the application of cruel and unusual punishment. But the panel of judges hearing the case faced tough strictures of a different sort, according to the Los Angeles Times: “Legal rules that limit the authority of federal judges in such cases.” For that reason, said Chemerinsky, “I think this court could decide the case on procedural reasons rather than the 8th Amendment,” leaving California’s institution of capital punishment intact.

Adding to the difficulty of overturning the death penalty, Attorney General Kamala Harris lobbied the court to recognize that delays in executions have more to do with protecting prisoners’ rights than curtailing them. “Despite her own reservations about the death penalty,” the San Jose Mercury News reported, “Harris has urged the appeals court to reverse the decision, saying in court papers the ruling is ‘fundamentally misguided’ because any delays in reviewing the appeals of death row inmates are meant to ensure legal protections to avoid mistakes.”

Supreme possibilities

Nevertheless, some judiciary watchers suggested that the ultimate fate of California’s system of executions is poised to end up in the hands of the highest court in the land. “With at least 40 percent of the state’s death row inmates now awaiting execution for two decades or longer, legal experts say the time may be ripe for the Supreme Court to use the California example to decide whether such delays render a state’s death penalty law unconstitutional,” the Mercury News observed.

“Warning that there is little time to lose,” the Los Angeles Times reported, “Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison. The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.”

The law, on the ballot as Proposition 47, has made a significant impact on the California prison system already, dropping the number of felonies in state by some 40,000.

According to the Times, Brown’s bid was slated for a subcommittee hearing next month chaired by state Sen. Loni Hancock, D-Berkeley.

“California is in a Catch-22 situation,” she said in a statement provided to the Times. “We are required by the courts to address prison overcrowding and we are required by law to provide certain minimum conditions for housing death penalty inmates. The Legislature can’t avoid its responsibilities in these areas, even though the courts are currently considering the constitutionality of the death penalty, and I hope will agree to end it.”

Court complications

The Golden State’s death row has become the country’s largest, as KCRW reported, thanks to the uncertainty created by the judiciary:

“The capital punishment system has been in limbo since a court invalidated the state’s three-drug lethal injection system nearly a decade ago. No new protocols have been developed. Meanwhile, another judge has questioned the constitutionality of California’s capital punishment system. That judge ruled last year that the appeals process here takes so long that executions have become random.”

In that case, decided last year, Judge Cormac J. Carney wrote that “the execution of a death sentence is so infrequent, and the delays preceding it so extraordinary, that the death penalty is deprived of any deterrent or retributive effect it might once have had. Such an outcome is antithetical to any civilized notion of just punishment.”

On appeal, the case would go before judges on the U.S. Ninth Circuit Court of Appeals, considered the most liberal in the country.

A stubborn problem

For Brown, the ordeal was just the latest in a string of severe frustrations and challenges meted out by state and federal judges. Through his controversial policy of “realigning” inmates from state prison to county jail, Brown was able to meet court standards applied to a degree of overcrowding that was held unconstitutional.

As CalWatchdog.com previously reported, however, the passage of Prop. 47 made all the difference. By turning many felony drug possessions into a misdemeanors, and decreasing penalties and sentences for other crimes, Prop. 47 prevented the prison population from rising above the court-ordered cap.

California’s prisons and jails have been plagued with difficulties since the implementation of realignment, however. One result has been a “revolving door” effect, where inmates hit the streets before time served, commit subsequent crimes, then return to the system.

Although Brown has struggled to satisfy activists to his left on prison issues, the controversy surrounding California’s frozen capital punishment system has increased the likelihood that voters and officials simply will seek to scrap it altogether.

In a sign of California’s role as a national bellwether, widespread criticism of lethal injection drugs led the American Pharmacists Association officially to discourage members from providing those drugs, an announcement made this week at its annual meeting in San Diego. As lethal injection has lost its former cachet as a humane alternative to other methods of execution, the prospect of a replacement method in California has faded.

With Sacramento legislators in a hurry to fund Brown’s request, but shut down the state’s death row pileup, pressure likely will increase on the courts to release California from the obligation of keeping the system running at all.