How the Death Penalty Might Be Ended in California

In a recent op-ed in the San Francisco Chronicle, death penalty scholar Franklin Zimring suggested that the close (52-48%) vote in November on California’s Proposition 34 to end capital punishment means the repeal effort is far from over. Zimring, a law professor at the University of California, Berkeley, wrote, “For decades, it has been assumed that the death penalty was the third rail of California politics …. Measured against that reputation, the narrowly divided electorate on Prop. 34 is quite a surprise." He suggested two traditional ways--other than another referendum--that capital punishment might be abolished. One way involves a finding by the courts that California's law is unconstitutional: "A federal court has been considering whether the current California laundry list of aggravating circumstances is too promiscuous to meet minimum constitutional standards. If this current grab bag is struck down, the California Legislature then would have to consider whether and how to write a new death penalty statute. After courts struck down state statutes in New York and Massachusetts, the legislatures of each state decided the best course was no death penalty." A second alternative would be for the governor to declare a moratorium on executions, followed at a later time by complete abolition. Zimring concluded, “Whatever the endgame for state execution in California, the saga of 2012's Prop. 34 will have been an important step toward an outcome that now looks inevitable on the near horizon.” Read full op-ed below.

STUDIES: Reasons Behind the Abolition of the Death Penalty in Illinois

A new report by Rob Warden (pictured), Executive Director of the Center on Wrongful Convictions, explores the conditions that led to the end of Illinois's death penalty in 2011. Warden says abolition came about because of a series of fortuitous circumstances, but also because of the work of countless attorneys, academics, journalists and activists who took advantage of these developments. The cavalcade of exonerations from death row, including the high-profile release of Anthony Porter, who was freed through the work of journalism students, underscored the flaws in the death penalty. Police abuse and prosecutorial misconduct caused an erosion of public confidence in the death penalty system. Finally, the report of the Capital Punishment Reform Study Committee, finding that the state could have saved $200 million if it ended the death penalty in 2000, greatly impacted the movement for repeal. Warden noted that what happened in Illinois carried over to other states and said he believes, “The future of the movement [to end the death penalty] hinges on how the arguments that carried the day in Illinois, New Jersey, New Mexico, and Connecticut resonate in the thirty-three states where death penalties remain in force but have fallen increasingly into disuse.”  The report is published in the Journal of Law and Inequality.

ARTICLES: The Tensions Between Protecting the Innocent and the Objectives of Capital Punishment

A recent article in the Justice Quarterly by Professor James Acker (pictured) and Rose Bellandi of the University at Albany, New York, examined whether there is an irreconcilable conflict between recent reforms to prevent the execution of the innocent and the traditional goals of capital punishment. The authors studied recent changes to Maryland’s death penalty statute that were designed to reduce the risk of wrongful executions while trying to maintain the death penalty for the most heinous crimes.  Maryland's law requires either biological evidence of guilt, a videotaped confession, or a video conclusively linking the defendant to a murder as a prerequisite to seeking a death sentence.  The authors concluded that such a statute will not impose the death penalty on the worst offenders, but only on those whose cases contain certain evidence of guilt:  “No one supports executing the innocent. Yet, many support executing those who are guilty of heinous crimes. How to guard against the former risk while advancing the latter objective evokes special challenges, if not paradoxes of sufficient magnitude that suggest that the twin goals defy reconciliation.”  Acker and Bellandi further add that even these protections will not be infallible, and that the Maryland Commission on Capital Punishment recommended abolition of the death penalty.

RACE: Commentary on the Anniversary of McCleskey v. Kemp

In an op-ed written for the 25th anniversary of the U.S. Supreme Court’s decision in McCleskey v. Kemp, nationally acclaimed death penalty expert James Acker (pictured) called for a reassessment of how race is affecting death penalty decisions. Prof. Acker questioned the Court's refusal to find bias in the wake of the strong statistical evidence presented in that case.  He wrote, "The time has surely come for a sober reassessment of this ruling" and "we must question if justice truly has been served when racial prejudices influence capital case decisions."  Acker noted that the recent case involving the shooting of Trayvon Martin by George Zimmerman in Florida raises the question of "how confident [we can be] that the pernicious influence of race has been expunged from punishment by death?"  Read full commentary below.

DPIC IN THE NEWS: Media Coverage of Year End Report

Over 400 media outlets around the country reported on DPIC's recent 2011 Year-End Report.  Coverage included stories on the dramatic drop in death sentences, the decline in executions, and fewer states having the death penalty.  Articles appeared in the Washington Post, Wall Street Journal, Los Angeles Times, Associated Press, Reuters, USA Today, CNN, TIME, and many other papers.  National broadcast outlets such as NBC's Nightly News, National Public Radio's Morning Editiion, and CBS Radio ran pieces, and the headline news was noted on The Tonight Show with Jay Leno.  Other coverage appeared on over 100 local radio and TV stations.  Among the papers writing editorials on the trends cited in the report were, the Los Angeles Times, the Washington Post, and the Dallas Morning News.  The L.A. Times’s editorial noted, “The Death Penalty Information Center's annual report on capital punishment in America, released Thursday, showed that executions continued to drop in 2011, to 43; that's down from 85 in 2000 and 46 last year. More significantly, the number of death sentences across the country fell dramatically this year, to 78 from 112 in 2010.  And perhaps most significant of all, the percentage of Americans who say they support the death penalty, which was 80% in 1994, fell to 61%, the lowest ever.”  The Washington Post's editorial attributed the decline in death sentences in part to the decreasing confidence in the capital punishment system, noting, “The risk of executing an innocent person must weigh heavily in the debate. There can be no denying that the criminal justice system makes mistakes… Public safety and appropriate punishment for the worst crimes can be achieved through life sentences without the danger of taking an innocent life.”  The Dallas Morning News editorial echoed the same hesitation when it comes to the death penalty, saying “The justice system will never be foolproof, and, therefore, use of the death penalty is never justified.”

OP-ED: Mario Cuomo Calls Capital Punishment Corrosive to Society

In a recent op-ed in the New York Daily News, former New York Governor Mario Cuomo called the death penalty a "serious moral problem" that is "corrosive" to a democratic citizenry. He said many of the problems of the death penalty--ineffectiveness as a deterrent, unfairness, and the risk of executing the innocent--are inevitable: "These imperfections - as well as the horrible and irreversible injustice they can produce - are inevitable. In this country, a defendant is convicted on proof beyond a reasonable doubt - not proof that can be known with absolute certainty. There's no such thing as absolute certainty in our law." He advocated for alternative punishments for murder, particularly life in prison without the possibility of parole: "There is a punishment that is much better than the death penalty: one that juries will not be reluctant to impose; one that is so menacing to a potential killer, that it could actually deter; one that does not require us to be infallible so as to avoid taking an innocent life; and one that does not require us to stoop to the level of the killers." Cuomo mentioned the execution of Troy Davis as an example of the risks posed by the uncertainties in the system.  As governor, Cuomo repeatedly vetoed legislation to restore New York's death penalty. Read full op-ed below.

Florida's Death Penalty Marked by Arbitrary Decisions

Mike Thomas, columnist for the Orlando Sentinel in Florida, recently examined the arbitrariness of the state's death penalty system.  "There is no rhyme or reason here," he wrote. "A governor's decision on whose death warrant to sign, as well as a judge's decision on which appeal to accept, are about as arbitrary as a prosecutor's decision to pursue the death penalty.  We spend an estimated $51 million annually on this nonsense, and for our investment we haven't executed anyone going on a year and a half."  Thomas examined recent murder cases in the state, where the death penalty is pursued in one but not the other, concluding that "The odds certainly seem to favor those who can afford top legal talent."  He saw little chance for change in this process: "A new drug that Florida plans to use in its lethal cocktail finally survived all the legal challenges, including one by [death row inmate Manuel] Valle, only to be pulled by the manufacturer. A new drug will mean more challenges.  A federal judge recently ruled that Florida's death-penalty statute is unconstitutional because the condemning jury doesn't have to disclose which aggravating circumstances led to its recommendation.  On and on it goes."

How Preconceptions and Bias May Have Led to Wrongful Convictions of West Memphis Three

In a recent op-ed in the L.A. Times, Professor Jennifer L. Mnookin (pictured) of the UCLA Law School provided an analysis of how preconceptions and biases toward the unconventional suspects known as the West Memphis Three may have led to their wrongful convictions and a death sentence in Arkansas in 1994.  Because of the grisly nature of the murders, investigators decided early on that it was probably related to satanic cult rituals. This theory pointed them to Damien Echols, who was a self-described Wiccan with an unusual taste in clothes and music. Mnookin explained that "cognitive biases" - the tendency of humans to see what they expect to see - played a role in these convictions. Mnookin wrote, "Investigators and prosecutors, even when they are trying their best to do their jobs, may seek out or take special notice of evidence that confirms their prior beliefs rather than evidence that challenges it. And they are likely to interpret ambiguous evidence in ways that accord with their preconceptions." For example, the police interviewed Echols's friend, Jessie Misskelley, who had an IQ of 72, and accepted his account of the crime even though it contradicted the evidence.  Mnookin wrote, "The prosecutor's case was based largely on character assassination, innuendo and the not-very-credible testimony of the likes of a jailhouse snitch and a witness with a mail-order doctorate. Not a shred of physical evidence linked any of the young men to the crime scene (and post-conviction DNA testing has also failed to find any biological evidence that they were there)."  Mnookin noted that at least three of the most common causes of wrongful conviction were present in the West Memphis Three case: dubious forensic evidence, false confessions and evidence from an unreliable jailhouse informants. She attributed the recent release of the defendants partly to the work of documentary filmmakers who investigated the case. Read full op-ed below.