California advocates of abolishing the death penalty got a jolt of momentum in March, when Gov. Gavin Newsom announced that he would not allow any executions to take place while he was in office.
But after trying twice this decade to persuade voters to end capital punishment, they have no plans to go to the ballot again in 2020. Rather than seeking to build on Newsom’s temporary reprieve for Death Row inmates, activists are taking their own pause.
Grappling with the legacy of their two failed initiatives, advocates are reassessing their strategy and retooling their message. Natasha Minsker, a political consultant who has long been involved with abolition efforts, said the governor’s moratorium has given advocates the opportunity to do long-term planning.
“There’s this excitement and energy in our movement that we haven’t had in a long time,” Minsker said.
Newsom’s executive order caught many Californians by surprise. Although he supported the unsuccessful ballot measures to abolish the death penalty in both 2012 and 2016, his gubernatorial campaign downplayed the issue last year and promised that Newsom would follow the law as governor.
But death penalty opponents pushed Newsom to take action. In March, he announced he would grant a reprieve to more than 730 inmates on Death Row, shut down the execution chamber at San Quentin State Prison and withdraw the state’s recently revised procedures for lethal injections. No one has been executed in California since a federal judge ruled in 2006 that the state’s methods could be subjecting condemned prisoners to a painful and torturous death.
Newsom said he was confronted with the reality that if the state’s new lethal injection protocol was accepted in court, he would oversee the executions of more than 20 inmates who had exhausted all appeals. He said it was something he could not bring himself to do.
“It’s pretty stark” to know you hold people’s lives in your hands, Minsker said.
After an initial splash of headlines, California’s capital punishment system has settled back into the legal limbo where it has been stuck for more than a decade — tied up in court while local prosecutors continue to seek death sentences in some most high-profile murder cases in the state.
A constitutional amendment to put the death penalty back before voters, introduced by Assemblyman Marc Levine following Newsom’s executive order, did not even get a committee hearing this year. A spokesman for Levine, a Marin County Democrat, said his office is “continuing to work with stakeholders,” but advocates said they were not trying to push anything through the Legislature now.
Much of activists’ energy has been redirected in recent months to the national level, where the Trump administration is planning to resume capital punishment in federal prisons. Three federal executions — the first in 16 years — are scheduled for early December, though a judge temporarily blocked them this month.
Andrew Rivas, executive director for the California Catholic Conference, said advocates worry that a third election loss on the state level could undermine their hopes of ever abolishing the death penalty in California.
In 2012, a death penalty repeal initiative failed, 48% to 52%. years later, a follow-up effort garnered only 47% support, while voters approved a competing measure to speed up executions. That law has been tied up in court challenges.
Rivas said there are differing opinions about why their coalition “slid back in 2016.” Some advocates believe their message was not compelling to voters. Others blame a late influx of anti-repeal campaign cash from the prison guards union or confusion over the two competing initiatives.
“Nobody seems to have a magic bullet in terms of an answer” for how to win over more voters, Rivas said.
Even after the governor announced his moratorium, advocates had little appetite to rush another measure onto the November 2020 ballot. They already knew voters would be asked to weigh in on several criminal justice issues, including a referendum to undo a California law eliminating cash bail and an initiative to roll back recent changes to shoplifting sentences and the parole system. The Legislature could also still qualify another measure allowing felons to vote while they are on parole.
The groups and donors in those campaigns overlap, potentially spreading resources thin, even without adding the death penalty to the mix.
“How much capacity does the criminal justice community have to fight on multiple fronts on the ballot?” Minsker said.
While death sentences are rarely sought and even less frequently awarded by juries in much of the state, there are pockets that remain committed to capital punishment. 5 Southern California counties — Los Angeles, Riverside, San Bernardino, Orange and Kern — have accounted for nearly 1/5 of all new death sentences in the U.S. since 2013.
Several local prosecutors who spoke out forcefully earlier this year against Newsom’s executive order have continued to seek death sentences, including for accused cop killers in Sacramento and Stanislaus counties.
The district attorneys for both counties declined interview requests. However, Mark Zahner, chief executive officer for the California District Attorneys Association, said frustration has eased over what prosecutors saw as the governor’s meddling in a local issue.
“All of that seems to have just settled down,” he said. “They all understand the governor’s moratorium.”
Michele Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County, said it would be inappropriate for prosecutors to consider the moratorium on executions when deciding whether to seek death. Because the reprieve is only temporary, she added, a death sentence issued today is going to be on appeal longer than Newsom will be in office.
“Nobody’s changed the law,” Hanisee said. “You do think long-term in death penalty cases.”
Nevertheless, California is on pace this year for a record low number of new death sentences, according to the Death Penalty Information Center, a nonprofit in Washington, D.C., that tracks capital punishment nationwide and is critical of how the process is administered. Two sentences have been imposed so far, both in Riverside County, while juries in four other cases have recommended death. Judges must review those sentences.
Newsom’s moratorium could eventually lead to an abolition, said the group’s executive director, Robert Dunham. Washington state, for example, abolished its death penalty last year, less than five years after the governor imposed a moratorium on executions.
“The fact that the governor has explained why he thinks the system is broken has an impact” on public sentiment, Dunham said. “While some of the more avid capital prosecutors are making loud noises about pursuing the death penalty and raising the political issue, juries are a different story.”
As they search for that elusive political message, abolition activists are taking smaller steps to change voters’ minds. Rivas said the Roman Catholic Church, which has traditionally focused on campaigns against abortion and assisted suicide, is working with California dioceses to involve their parishioners more in education around the death penalty as an issue of life, salvation and forgiveness.
“How do we get them to engage in Catholic teachings that changes their minds?” Rivas said. “Even if someone has committed a crime as horrible as murder, we believe that person still has value.”
The cautious approach frustrates some allies like Ron Briggs, who helped write the voter initiative that brought the death penalty back to California in 1978 but has since become an opponent of the death penalty. He said he didn’t understand why advocates weren’t pushing more aggressively on abolition while a governor sympathetic to their cause is in office and Democrats hold overwhelming power in the Legislature.
“Their pacifist ways don’t allow them to take hold of this issue during the Newsom years and kill it,” he said.
Briggs said activists should start organizing now for a ballot fight in 2022. He believes focusing on a financial argument — that eliminating capital punishment could save taxpayers more than $100 million per year on trials and appeals — could grab the last few percentage points that advocates need to ban executions.
“Time’s fragile, but we’ve got some right now,” he said. “We’re wasting it.”
Source: San Francisco Chronicle, Alexei Koseff, November 29, 2019
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
