DPIC Podcast: Contra Costa District Attorney Diana Becton on Bringing Fairness and Equity to Criminal Legal Reform and Ending the Death Penalty

In the January 2022 episode of Discussions with DPIC, Contra Costa County, California District Attorney Diana Becton (pic­tured), speaks with Death Penalty Information Center Executive Director Robert Dunham about the rise in reform pros­e­cu­tors across the coun­try, the inher­ent flaws in cap­i­tal pun­ish­ment that led her to work along­side oth­er reform pros­e­cu­tors to end the death penal­ty, and her efforts as dis­trict attor­ney to bring fair­ness and equi­ty to the crim­i­nal legal system. 

Becton is the first woman and first African American to serve as District Attorney in Contra Costa. Prior to becom­ing District Attorney in 2017, she served for twen­ty-two years as a judge in the coun­ty, where she was elect­ed as the Contra County court’s Presiding Judge. She dis­cuss­es with Dunham how her lived expe­ri­ences shape how she sees her role as a District Attorney, the push­back against reform pros­e­cu­tors who are women of col­or by those inter­est­ed in main­tain­ing the sta­tus quo, and the larg­er nation­al move­ment to change America’s approach to criminal justice. 

The country’s grow­ing shift away from reflex­ive­ly puni­tive poli­cies begins, Becton says, with ​“the data: that the United States with 5% of the world’s pop­u­la­tion has become the most over-incar­cer­at­ed coun­try in the world.” 

“We have come to under­stand that over the last 40 years or so, these very tough on crime poli­cies that have been in place have led us to this place of very, very high incar­cer­a­tion rates in our coun­try, but real­ly haven’t kept our com­mu­ni­ties any safer,” she says. ​“And we’ve also come to see that there are huge dis­par­i­ties in terms of who goes in to our jail and prison sys­tem. Very often those peo­ple are drawn from some of our most dis­ad­van­taged neigh­bor­hoods in the coun­try, as well as dis­pro­por­tion­ate­ly affect­ing minority people.”

She tells Dunham, ​“Communities are now demand­ing that there be new approach­es to this thing that we call safe­ty with­in our com­mu­ni­ties. People are ask­ing us to do some­thing dif­fer­ent, that doesn’t result in these high incar­cer­a­tion rates, that gives peo­ple sec­ond chances in our soci­ety, and that bring some equi­ty and fair­ness to the system.” 

The Death-Penalty System ​‘Cannot be Repaired’

Becton observes that sim­i­lar fac­tors are dri­ving reform pros­e­cu­tors to oppose cap­i­tal pun­ish­ment. The death penal­ty, she says, is ​“the ulti­mate … kind of harsh pun­ish­ment,” which nec­es­sar­i­ly makes it ​“a part of this whole con­ver­sa­tion of over-incar­cer­a­tion, and over-pun­ish­ment in our coun­try.” She notes that, over the past half-cen­tu­ry, there have been ​“a lot of efforts to try to make America’s death penal­ty sys­tem some­how fair and some­how just. But the real­i­ty,” she says, ​“is that … this sys­tem can­not be repaired. It is bro­ken. It often penal­izes those who are the most impov­er­ished and poor­ly rep­re­sent­ed, those who have men­tal ill­ness, and we know that race cer­tain­ly plays a very dis­turb­ing role in terms of who the death penal­ty is applied against.”

Becton also cites the ​“proven risk” of wrong­ful cap­i­tal con­vic­tions as anoth­er rea­son the death penal­ty is los­ing favor. ​“Once you have exe­cut­ed a per­son,” she tells Dunham, ​“that can­not be reversed.” In addi­tion, she empha­sizes the adverse impact cap­i­tal cas­es have on the over­all work­load in a prosecutor’s office. ​“As pros­e­cu­tors,” she says, ​“we … have to allo­cate and pri­or­i­tize our depart­ment resources. We know that the death penal­ty cas­es can con­sume an inor­di­nate amount of staff time and resources that go well beyond the cost of seek­ing some oth­er alter­na­tives like life in prison.” 

The costs are also sig­nif­i­cant for tax­pay­ers, she notes. California has ​“a very bloat­ed and racial­ly biased and a very, very expen­sive [death-penal­ty] sys­tem that costs sig­nif­i­cant resources through­out our state,” she says. ​“In fact, in California, we have spent over $5 bil­lion pur­su­ing exe­cu­tions over the past 40 or so years. And … we haven’t had an exe­cu­tion since 2006.” With Governor Newsom’s mora­to­ri­um on exe­cu­tions, ​“we don’t even see that in the foreseeable future.”

As with recent death-penal­ty repeal efforts in Virginia and Utah, Becton sees reform pros­e­cu­tors chang­ing the tenor of the pub­lic debate. She is one of the found­ing mem­bers of the Prosecutors Alliance of California, a group of reform pros­e­cu­tors who are col­lec­tive­ly push­ing for crim­i­nal jus­tice reform. “[T]ypically, there’s only been one voice at the table [from law enforce­ment] and that voice is not typ­i­cal­ly … in favor of crim­i­nal jus­tice reform,” she observes. The Prosecutors Alliance, which includes Los Angeles District Attorney George Gascón, San Francisco District Attorney Chesa Boudin, and San Joaquin District Attorney Tori Verber Salazar among its mem­bers, ​“lend a dif­fer­ent view, … lend a dif­fer­ent voice to what it means to have safe com­mu­ni­ties” and pro­vide a voice for pro­gres­sive crim­i­nal jus­tice leg­is­la­tion and changes in the state’s crim­i­nal jus­tice sys­tem. ​“And so, yes, we took a stand” on Governor Newsom’s mora­to­ri­um and the ulti­mate abo­li­tion of the death penal­ty, Becton told Dunham. ​“We took a stand statewide,” Becton says, adding that she will ​“con­tin­ue to work pub­licly to sup­port leg­is­la­tion that might repeal and end the death penal­ty in California and indeed, in our country.”

A New Voice at the Table

The pros­e­cu­tor, Becton observes, has become ​“the most pow­er­ful actor in our crim­i­nal jus­tice sys­tem and has so much influ­ence over what hap­pens in terms of fair­ness and in terms of equi­ty in our com­mu­ni­ties.” As the first woman and first African American to serve as District Attorney, the voice she adds to the dis­cus­sion is one that has been large­ly absent from pros­e­cu­to­r­i­al decision making. 

“All of us are a prod­uct of our expe­ri­ences,” she says. ​“And so when I show up, I mean, first and fore­most, I’m a black woman. And I am the first per­son to be in this posi­tion in my coun­ty since the office was estab­lished in 1850. And not only my expe­ri­ences as a moth­er, rais­ing two black sons, but also my expe­ri­ences in my own com­mu­ni­ty, see­ing the dev­as­ta­tion on so many lives, and on so many fam­i­lies, from this over­ly harsh crim­i­nal jus­tice sys­tem.” Prosecutors, she says, are ​“the gate­keep­ers of this jus­tice sys­tem. And we have to always keep in mind our role. So, as I bring all of those expe­ri­ences to the table with me, … I think it gives me a lev­el of com­pas­sion to this work, that I bring as the gatekeeper.”

The mere pres­ence of Black women in posi­tions of author­i­ty has made them light­ning rods for crit­i­cism and retal­i­a­tion. In 2017, Florida Governor Rick Scott removed State Attorney Aramis Ayala from more than twen­ty mur­der cas­es because she announced that her office would not seek the death penal­ty. In 2021, the Alabama courts sus­pend­ed Jefferson County Judge Tracie Todd for 90 days with­out pay n what appeared to be retal­i­a­tion for her rul­ings find­ing the state’s death penal­ty prac­tices uncon­sti­tu­tion­al and bar­ring the death penal­ty in four cases. 

In response to a ques­tion by Dunham as to whether she had expe­ri­enced any back­lash for her reform posi­tions, Becton respond­ed: ​“Lots. … [T] here’s rough­ly 2,400 elect­ed pros­e­cu­tors in our coun­try,” Becton said, ​“and less than 1% of those who are elect­ed are women of col­or. So, it’s almost as if we are in places where peo­ple feel that we should not be and we’re doing things and mak­ing deci­sions that peo­ple feel we should not be mak­ing. And so there has been a huge back­lash across the country.” 

Becton points to polit­i­cal attacks on oth­er African American pros­e­cu­tors, includ­ing Kim Fox in Chicago, Kim Gardner in St. Louis, and Rachel Rollins in Boston, and says ​“All of us around the coun­try … have come to under­stand that we are treat­ed so much more harsh­ly, even than our own broth­ers who are on our side in this move­ment for crim­i­nal jus­tice reform. … It’s a con­stant bat­tle, it’s a con­stant fight … as we sit in these places of pow­er where peo­ple real­ly don’t want us to be.”

In California, Governor Newsom and dis­trict attor­neys Gascón and Boudin have been tar­get­ed for recalls. Asked whether those efforts have had a chill­ing effect on her pur­suit of legal reform, Becton said: ​“those of us who are doing this work, we rec­og­nize that this is a move­ment, just like a civ­il rights move­ment, which took a lot of time to be able to effec­tu­ate change. We can’t allow what hap­pens day-to-day to chill our abil­i­ty to be bold in our poli­cies and to move for­ward with the work that we know is so important.”

She con­cludes, ​“All of us, at the end of the day, we under­stand that we are in a fight, but we also believe deeply that the arc of the uni­verse def­i­nite­ly bends towards jus­tice. And so we do the work. We show up every day. And we keep up the fight, no mat­ter what is hap­pen­ing around the coun­try, no mat­ter what’s hap­pen­ing in our local juris­dic­tions, because we under­stand that we’re part of a larger movement.”