It’s no big surprise that the Prop 62 campaign, which calls for the death penalty repeal, is working hard to build a coalition across political lines. Because of that, the campaign rhetoric understandably aims at reassuring undecided voters that, even with abolition, they will remain safe; and its two main arguments, the obscene costs ($150 million a year) and the risks of wrongful convictions, are arguments that should appeal to all of us, regardless of our political convictions. But lately I’ve been hearing from some folks on the very left edge of the political map–progressives and radicals–who are thinking of voting no on 62 for various progressive reasons. If you are one of these people, this blog post is addressed to you.
First of all, friend who cares about progressive causes and criminal justice reform: I hear you. I hear that you are frustrated because you need the system to change at a faster pace and that some provisions in these propositions aren’t exactly what you’d hope for, and that you are concerned that if we pass these it’ll stall further steps. I hear that the democratic process is not moving things far enough and soon enough for you. I hear that you are giving this a lot of thought and are genuinely concerned about aspects of the proposed reform. I believe you that your dilemma is real. I understand that you are trying to do what you think is best for people in vulnerable situations.
I hope you can hear me when I say that, when you tell me you might be voting to keep the death penalty in place, it really, really frightens me.
I am frightened because I’ve been thinking, writing, and speaking about criminal justice reform for twenty years, five as a practitioner and sixteen as an academic, and the one thing I learned is this: in criminal justice, the perfect is the enemy of the good. And I am really afraid that in our quest to attain a perfect criminal justice system we might opt out of a crucial step on the way to where we want to be.
Please allow me to address your concerns one by one.
“If we get rid of the death penalty, aren’t we entrenching life without parole? I think life without parole is horrible, and we are affirming it as the upper range of punishment.”
You feel that life without parole is a hopeless, soul-destroying punishment, which offers a person no prospect of ever seeing life outside prison. And you feel this is especially cruel for very young people (a big chunk of our prison population) who become incarcerated in their twenties and are looking at a very long stretch behind bars.
You know what? I agree with you. Life without parole is, indeed, an extreme form of punishment. Like you, I am committed to a struggle to bring a possibility of hope–an exit possibility–to any prison sentence.
Unfortunately, we can’t start our fight against life without parole until we win our fight against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and with a big base of consensus.
I wish there were a critical mass of Californians of all political persuasions convinced that our criminal justice system needs to be immediately reformed. Not just at the edges, not just for nonviolent inmates, not just for juveniles, but for everyone. But that is not the world we live in. The political reality is that, in order to make change, incremental steps have to be taken. Remember same-sex marriage? That didn’t happen overnight. There were revolutionaries calling for marriage back in the seventies, when it was unthinkable. Then, the movement had to regroup, advocate for lesser protections (domestic partnerships, workplace protection). Yes, domestic partnership was less than marriage in important ways. But this is why public opinion changed, between the mid-1990s and the early 2010s. Incremental change is what led to the triumph of that movement.
For an even more relevant example, see what is happening with juvenile justice. Life without parole for juveniles is horrible, right? And look at how close we are to eradicating it–because in 2005, in Roper v. Simmons (2005) the Supreme Court abolished the death penalty for juveniles. It was the first step in a long series of reforms. In Graham v. Florida (2010) the Supreme Court felt comfortable relying on the same arguments to abolish life without parole for nonhomicide crimes. In Miller v. Alabama (2012) the Supreme Court relied on that logic to abolish mandatory life without parole for all juveniles, and then felt comfortable making that ruling retroactive in Montgomery v. Louisiana (2016). We are now within striking distance of abolishing life without parole for juveniles. None of this would have been possible without Roper v. Simmons.
This is even truer for legislative/public campaigns than for judicial change. To make reform happen, we need wide public consensus–not just an agreement among progressives. We need our conservative and moderate friends to live with the new situation for a while, realize that the sky doesn’t fall if punishment is less extreme, and accustom themselves to the idea of further reform. A classic example is marijuana legalization. Recreational marijuana would not be on the ballot–within reach and polling great so far–if Californians of all persuasions didn’t have a chance to live with medical marijuana for years and realize that it was not the end of the world. Do you think we would have been here, at this point in time, if progressive voters had declined to vote for medical marijuana, claiming that limiting legalization to medical patients wasn’t good enough? Similarly, conservatives and centrists grew accustomed to same sex marriages because they lived with domestic partnerships. They will be willing to consider a reform of life without parole if and when they see that the death penalty was abolished and it didn’t lead to a rise in crime rates, a decline in public safety, or any other negative consequences. You and I already know that giving reformed, aging folks a chance at parole is also not a safety risk. But not everyone knows that, and we need our friends across the political map to agree with us. We can’t make change otherwise.
I’ve been studying criminal justice reforms for the last sixteen years. I have not seen a single criminal justice reform that sprang perfectly from nothing. Every change we’ve seen since 2008–and we’ve seen plenty, believe me–was the product of incremental, bipartisan reform. This will be no exception. We can’t get from A to Z skipping steps along the way. I know you’re ready for Z. So am I. But the people whose hearts and minds we have to change so that Z happens–and we can’t make it happen without them–need us to go through all the steps so that we can have a coalition. What we want won’t happen otherwise.
“We are not really executing people in California anyway, and the delays are lengthy, so our death penalty really is just life without parole, with or without an execution at the end. So what would abolition actually achieve?”
Our peculiar situation in California is that we have about 750 folks in limbo. We could execute them, but through litigation efforts and mobilization we’re trying to stall their executions. Being on death row, friend, is not the same as being in general populations. Folks on death row are also in solitary confinement, do not work, and do not have access to the social and educational opportunities available in general populations. Our death row is notoriously dilapidated.
Also, can you imagine living with the uncertainty of whether you’ll be executed by the state some day? Ernest Dwayne Jones couldn’t. And in Jones v. Chappell (2014), a conservative District Court judge from Orange County agreed with him. Based on sound research on the effects of uncertainty, and the horrible thing it is to live with the prospect of being killed by your fellow men, the judge found the death penalty unconstitutional. We didn’t win that fight, even though we tried very hard: the Attorney General decided to appeal, and the Ninth Circuit reversed for technical reasons. But the reasoning behind Jones is sound: it is very different to be a death row inmate than a lifer.
But let’s assume for a minute that these two experiences are comparable (after all, we always compare them to each other.) If you really can’t see that the death penalty is worse than life without parole, how about a tie breaker? We don’t like to talk much about savings in the progressive left–it’s an argument that some of us think is designed to appeal to centrists. But we’re talking about a lot of money here: $150 million a year, to be precise. If you really have no preference between the death penalty and life without parole, does this obscene waste of money not tip the scale in the repeal direction for you? Think about all the things you care about: education, health care, roads. Is it really a progressive move to keep something happening, in which you see no virtue, and spend this much on it when we could spend it on the things you care for?
Finally, I know you’d like to see the death penalty go away not only in California, but also in other places. You know where people on death row do get executed? In Texas, for example. Unfortunately, change in Texas is not going to spring to life, fully formed, out of nowhere. We have the biggest death row in the country and have been the vanguard of criminal justice innovation, for better and for worse. Determinate sentencing? Us. Enhancements? Us. The most punitive version of Three Strikes? Yup, we started that one, too. But we can use this power we have, as a huge and influential state, to make changes in other places as well. We adopted Realignment; we reformed Three Strikes; we passed Prop. 47. These things have a ripple effect in other states. We have to make the first step here. The death penalty doesn’t take the same shape in all states, but it is abhorrent in all of them. Reform in Texas begins here, with you.
“If we abolish the death penalty, aren’t we depriving people of valuable and free legal representation? Only death row inmates get two free lawyers paid for by the state, and that increases their odds of exoneration.”
It’s true: The California Constitution awards death row inmates two free attorneys to represent them in their appellate and habeas proceedings. But what does this mean in practice? We have hundreds of inmates on death row who are unrepresented and unable to benefit in any way from this constitutional provision.
As of August 2016, 46 inmates are awaiting appointment of both an appellate attorney and a habeas corpus attorney. 310 inmates have been appointed an appellate attorney, but are still awaiting appointment of a habeas corpus attorney. This is almost half of all death row inmates, and there are only 34 attorneys employed by the Habeas Corpus Resource Center. You could do what tough-on-crimes conservatives might do and vote yes on 66, but to actually close the huge representation gap we’d have to train and appoint 402 defense attorneys just for the cases now pending. This is a huge expense, and it would come with the added price tag of speedy proceedings that run the risk of executing innocent people. And that is something neither of us wants (I really hope you’re voting no on 66. It’s a horrible and draconian proposition.) So, if we’re staying with the existing situation, what guarantees of exoneration do we really have?
Ask Shujaa Graham, who spent 16 years in San Quentin for a crime he did not commit. Yes, he was exonerated at the end, but what a huge risk he ran while he was still there! Beyond the horrible conditions, the cruelty, the loneliness, the boredom–an innocent person on death row lives every hour or every day of his life with the fear that the miscarriage of justice that happened to him will be irreversible. For that matter, ask any of the 150 exonerees whether they’d trade what happened to them with a guarantee that they won’t be in a situation where the horrible wrong done to them can never be rectified.
“Hey, wasn’t there some survey of death row inmates four years ago where they said they preferred to keep the attorneys they have? Why would we oppose something that the inmates themselves support?”
Four years ago, indeed, the Chronicle published a survey with death row inmates who said something like this. But the Chronicle did not disclose the methodology of the survey, nor did it share the questions they were asked. How does one even conduct a valid survey on death row? And how do we know whether the people who asked the questions weren’t only those who are represented–and not the hundreds of people who wait, on average, 16 years to even get an attorney so they can begin the proceedings?
Of course we care what death row inmates think. And former death row inmates who have been exonerated have been aggressively campaigning against the death penalty and on behalf of Prop 62. Have you heard a single exoneree publicly praising his good luck in being sentenced to death? Maybe there’s a reason for that and we should listen to them.
You know who else is worth listening to? Lifers. I teach lifers in San Quentin and what I hear from them is uniform, wall-to-wall support of death penalty repeal. They think that the death penalty is a massive waste of resources. And, while they yearn for the day we fight against life without parole, they are relieved to be in general population, studying, working, and interacting with others, rather than on death row. Most importantly: they know that we are spending a lot of effort on a policy that affects only 750 people instead of focusing on the thousands of lifers out there. And they know that we can’t get to other penal reforms before we make this one happen. You want us to get to the business of reforming LWOP? Great, me too! Let’s repeal the death penalty so we can get there sooner – there are no shortcuts that don’t pass through death penalty repeal.
“Prop. 62 is mandating that the folks we commute to life without parole work and give money to victims. That’s forced labor and I don’t support that.”
I know how the concept of work in prison makes you feel. It’s a grim reminder of how, when we abolished slavery, we threw in a little exception: forced labor is allowed in prisons. It is something that we have come to abhor, because it means that our prison regime perpetuates, in a new guise, abhorrent forms of coercion and racial domination.
But abolishing labor in prisons is not on the ballot. Abolishing the death penalty is.
Some progressive voters bristle at the campaign’s emphasis on making lifers work to compensate victim families. You can be forgiven for mistakenly thinking that the proposition “creates forced labor.” But that is, simply, not factually true. Section 2700 of the Penal Code, which requires that inmates work, has existed for a very long time, and already applies to everyone on life without parole. Prop 62 doesn’t hasn’t invented anything new and does not change that section; it would merely apply to a few hundred more lifers–for the simple reason that they would now be lifers, not death row inmates.
The only modification that Prop. 62 would make is increasing to the maximum restitution withholding from wages (not family donations), from the 50% (which is already in effect) to 60%. Is objecting to an increase in victim restitution from wages really a progressive cause you feel proud to fight for? Considering the enormous change we can effect here, this is a fairly small matter to stand in the way.
Even if you are uncomfortable with this small increase in restitution, I want to remind you that it is not enough for confirmed progressives to vote Yes on 62. We have to have a majority of Californian voters, and that includes conservatives and centrists. It also includes families of victims that are campaigning against the death penalty. And one of the things that is a convincing argument for them–and not unreasonably so–is that the proposition addresses concerns about victims. Compromising on this point is part and parcel of getting things done in the political reality in which we live. And this is the world in which we have to vote.
“I’m against the initiative process. This, and other propositions, are a flawed feature of California lawmaking. I vote “no” in principle on all propositions.”
Friend, I hear you. Every election season it’s the same thing: money, deceptive ads, easily manipulated voters, a polarized state. Yes, this is a bad way to make a lot of decisions. For example, this is a bad way to create nuanced criminal justice reform.
But I want to ask you to really think about what’s at stake here. The legislature is not going to repeal the death penalty on its own. We know; we tried. Our governor (who is personally against the death penalty) is not going to unilaterally commute everyone’s sentences to life without parole. We know; we tried. Our courts cannot get rid of the death penalty. We know; we tried, and we came close, and we failed because of habeas technicalities.
The only one who can get rid of the death penalty in California is YOU.
And compared to other propositions, this one is actually fairly well suited to an initiative process: as opposed to, say, medical or recreational marijuana regimes, parole regimes, registration requirements, etc., death penalty repeal is a fairly simple question, which has a straightforward yes-or-no answer: repeal or retain. This is one of the least objectionable uses of the referendum method.
You have to decide: when you look back at this election, which of your values will you be more proud that you upheld: your concerns about direct democracy, or your opposition to the death penalty?
Sometimes, with good intentions, we overthink things, and that leads us astray. Listen to your heart and your common sense. Are you against the death penalty? Good. So am I. For the reasons the campaign highlights, but also for all the traditional, good reasons to be against the death penalty: because it is barbaric, inhumane, risky, racially discriminatory, and obscenely expensive.
Are you against the death penalty? Then vote against the death penalty.
Vote Yes on 62.