In a recent op-ed, the co-author of a key study on the viability of California’s death penalty analyzed the recent dramatic shift in public opinion on capital punishment in the state. According to Paula Mitchell, adjunct professor at Loyola of Los Angeles Law School, decades of polling showed about two-thirds of Californians supported the death penalty, but the 2012 referendum to repeal the law lost by just 4 percentage points (52%-48%). Moreover, in counties that used the death penalty the most, support for the death penalty was even lower. In Los Angeles County, which has more people on death row than any other American county, 54.5% of voters favored repeal. In Alameda County, ninth among all counties in death row inmates, 62.5% of the votes cast were for repeal. Mitchell said that this drop in support was due to several factors. California’s death penalty, she said, “is expensive and structurally broken — probably beyond repair.” She also pointed to unfairness in the system, particularly along racial lines: “In addition to concerns over the exorbitant costs associated with capital punishment and the potential for wrongful convictions — issues that were well publicized during the campaign to repeal last year — there are also ever-present concerns over the uneven application of death penalty.” African Americans make up over 36% of California’s death row, even though they constitute only 6% of the state population. Read full op-ed below.
California Voters’ Shifting Views on the Death Penalty
Public support for the death penalty among California voters has shifted dramatically. This reflects a national trend away from the death penalty. For the last few decades, Field Poll results showed that two-thirds of Californians supported the death penalty. In November 2012, however, when Proposition 34 asked California voters whether the state should replace the death penalty with life imprisonment without the possibility of parole as the state’s most severe punishment, nearly half of the electorate (forty-eight percent — or 5.9 million voters) voted in favor of repeal. Only fifty-two percent (6.4 million) voted to keep the death penalty.
Remarkably, voters the largest death penalty counties in California voted overwhelmingly to replace it with life in prison without parole. In Los Angeles County, which sends more people to death row than any other county in the nation (229 of the state’s 736 death row inmates were sentenced in L.A. County), 54.5% of citizens voted to repeal the state’s death penalty — a margin of 10% more than the state average. And Alameda County, ranked ninth nationally for the number of persons sentenced to death, voted to repeal the death penalty by an even wider margin, with 62.5% in favor of repeal and 37.5% against.
There are several possible explanations for the decline in support for the death penalty in California. First, California’s death penalty system is expensive and structurally broken — probably beyond repair. Second, high profile cases showing innocent men and women sentenced to death highlights the real possibility that the state may execute an innocent person. Kirk Bloodsworth, who spent nine years in prison (including two years on death row) for a rape and murder he did not commit before DNA evidence exonerated him, is just one example.
Third, recent polls indicate that people are not as concerned about the crime rate as they once were. According to a 2011 Pew Research poll, “[a] decade ago, 76% said that reducing crime should be a top priority; [whereas] just 44% currently rate reducing crime as a top policy priority.” See Pew Research Center for the People & the Press, January 20, 2011 “Economy Dominates Public’s Agenda, Dims Hopes for the Future.”
California has the largest death row in the United States. It is also home to five of the nation’s top ten death penalty counties. In November 2012, a proposition that sought to replace the death penalty with life in prison without parole failed to pass last November by 250,000 votes. Even though the measure failed to pass, the election results demonstrated that there has been a profound shift in Californians’ views about the death penalty; one that mirrors the changing attitudes across the country.
In addition to concerns over the exorbitant costs associated with the capital punishment and the potential for wrongful convictions — issues that were well publicized during the campaign to repeal last year — there are also ever-present concerns over the uneven application of death penalty. It is well-established that there is great disparity among those counties that file capital cases and those that do not. Los Angeles County is an extreme outlier. Twenty of California’s 58 counties – over one-third – currently have no inmates on death row at all. Another 17 counties have sentenced three or fewer defendants each to death row (for a total of 35 inmates for all seventeen counties). Thus, 37 of California’s 58 counties either do not prosecute capital cases, or do so very sparingly.
Additionally, African-Americans make up a disproportionate share of California’s death row. According to the United States Census for 2011, African-Americans make up 6.6% of the population in the state of California but 36.15% of California’s death row population is African-American. In Los Angeles County, the disparity is even greater: nearly half of the defendants sentenced to death are black (112 out of 229), even though African-Americans make up only 9.3% of Los Angeles County’s overall population.
There is currently a suspension on lethal injections in California pending the outcome of litigation over the constitutionality of the state’s procedures. The Chief Justice of the California Supreme Court has publicly stated that she predicts it will be three or more years before the state is in a position to carry out any executions. Given L.A. County’s status as the nation’s number one death penalty county and the fact that the majority of voters in L.A. County are in favor of repealing the death penalty, the District Attorney is presented with a momentous opportunity to exercise her prosecutorial discretion and decline to continue seeking the death penalty in the county, just as her predecessor declined to file third-strike charges in non-violent felony cases while waiting for public opinion to catch up so the law could be amended.
Nationally, public support for the death penalty is also declining rapidly. Six states in the last six years have repealed their death penalty laws: New Mexico, Illinois, New York, New Jersey, Connecticut, and Maryland. Maryland is the first state south of the Mason Dixon line to end capital punishment. Governor Kitzhaber of Oregon has declared a moratorium on all executions in the state. Citing the state’s “broken system,” Gov. Kitzhaber stated that he refused to be a part of the state’s “compromised and inequitable system any longer.” He urged Oregon to “consider a different approach.”
Similarly, Governor Hickenlooper of Colorado recently issued an executive order granting a reprieve to a death row inmate “not out of compassion or sympathy,” but because “we now have the benefit of information that exposes an inequitable system. It is a legitimate question whether we as a state should be taking lives.” Gov. Hickenlooper noted that “[m]any states and nations have come to the conclusion that the death penalty does not work.”
In January, after running for office as a proponent of the death penalty, Arkansas Governor Mike Beebe announced that the experience of signing a death warrant for the first time changed his thinking and that he would sign legislation outlawing capital punishment if legislators were to send him such a bill.
This year alone, seventeen states have considered bills to repeal the death penalty. Delaware passed repeal legislation through its state senate but the bill was tabled in the State House. The Nebraska state senate Judiciary committee recently advanced a bill that would change the death penalty to life imprisonment without parole by a surprising 7 – 0 vote. Not since 1979 has a repeal bill advanced that far in Nebraska. In the Washington State Legislature, a bill to repeal managed to get a public hearing in the House Judiciary Committee with lobbyists from several organizations testifying in favor of the bill and no one testifying against it.
Montana, Colorado, and New Hampshire have all passed repeal legislation through one chamber of their legislatures in recent years. The Kansas Senate came within one vote of passing repeal legislation. A bill to abolish the death penalty in Texas will finally have a committee hearing in the State House.
Paula Mitchell is a career federal judicial law clerk for Senior Circuit Judge Arthur L. Alarcón on the Ninth Circuit Court of Appeal and adjunct law professor at Loyola Law School in Los Angeles where she teaches Habeas Corpus and Civil Rights Litigation. She has written and lectured extensively on the subject of the death penalty in California. Paula recently co-authored with Judge Alarcón Costs of Capital Punishment in California: Will Voters Choose Reform this November?, 46 Loy. L.A. L. Rev. S1 (2012) and Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion Dollar Death Penalty Debacle, 44 Loy. L.A. L. Rev. S41 (2011).
(P. Mitchell, “California Voters’ Shifting Views on the Death Penalty,” Verdict, Justia.com, September 11, 2013.) See Public Opinion and Costs.
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