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.

Endgame for death penalty in California; CAPITAL PUNISHMENT Prop. 34’s narrow loss a big step toward abolition of execution

The election-night headlines didn’t seem cheerful for those dedicated to ending capital punishment in California. Proposition 34, the audacious attempt to use ballot initiatives to abolish the death penalty, was defeated. The narrowness of the final vote (52-48 %) was some consolation, but this was in part the result of the lack of an energetic campaign by the state’s district attorneys.

And isn’t it folk wisdom that close calls only count in horseshoes? Don’t the anti-death-penalty partisans belong in the ballot initiative loser’s bracket for 2012 along with the food labelers and union busters?

I don’t think so. A closer reading of both the 2012 election in California and of the current circumstances of the death penalty suggests that the endgame for capital punishment in the Golden State is well under way. And, in the future, a history of the end of California’s death penalty will give substantial credit to the quixotic crusade of Prop. 34.

The thin margin of Prop. 34’s defeat contradicts the conventional wisdom about California politics in ways that should permanently alter political and judicial assumptions about public attitudes. For decades, it has been assumed that the death penalty was the third rail of California politics - demonstrated by the 71 percent support for the 1978 Briggs Amendment that created the current death penalty and majorities voting to remove 3 state Supreme Court judges in 1986.

Measured against that reputation, the narrowly divided electorate on Prop. 34 is quite a surprise. And this almost even division of voters sends a signal that the public will tolerate judicial scrutiny of the death penalty. Elected officials who have assumed that taking a stand against capital punishment was a high-risk venture now know that the political price tag for moral leadership is much lower in 2012 than it has been in a generation.

Rather than shoring up the political reputation of capital punishment, the 52-48 split over Prop. 34 recalls the joke about the board of directors that passed a motion wishing the corporation’s president a speedy recovery - by a vote of 4 to 3.

Political shift
The lukewarm support for the death penalty comes in an election that also shifted political power in the state toward people and groups that are the natural enemies of state execution. Gov. Jerry Brown - a longtime opponent of the death penalty - was preoccupied in 2012 with passing his tax measure, Prop. 30. The victory of Prop. 30 makes him a much more powerful figure in California politics and provides the opportunity to use some of his energy and political capital on death penalty reform.

The near-even division on Prop. 34 masks a deep consensus on one issue - everybody thinks the current system is a catastrophic mess. And both legislative branches of California government will enter 2013 with Democratic supermajorities. This would not put capital punishment high on a legislative agenda if all those Democrats were terrified that 75 % of the electorate would rebel if somebody touched the 3rd rail. But when the price of moral leadership goes down, the likelihood of legislative responsibility goes up.

2 paths to reform
Does all this mean we should gear up for another round of initiatives on the death penalty? That might not be necessary or desirable. The most likely paths to extract the Golden State from its costly and miserable death penalty deadlock are 2 traditional mechanisms used in other democratic nations and in states that recently have abolished capital punishment.

One path out of the morass involves a combination of judicial scrutiny and legislative action. 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. This sequence is not unlikely in the California of 2013 or 2014.

A 2nd route out of the current mess would be a formal executive moratorium on executions. California has already gone more than 6 years without a state killing as a consequence of procedural problems with methods of execution. A brave and powerful governor could take the initiative of a formal 5-year moratorium near the end of his current term. Brown could make a historic gesture on a par with his Prop. 30 statesmanship if he announced a moratorium before running for re-election, if he chose to do so. The “moratorium first, abolition later” technique was used in England, Australia and recently in Illinois. For Brown to do this before standing for re-election, however, would be singular and historic.

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. The myth of the 3rd rail is dead. The death penalty itself cannot long survive.

-Franklin E. Zimring is a professor of law and the Wolfen Distinguished Scholar at UC Berkeley.

(F. Zimring, “Endgame for death penalty in California; CAPITAL PUNISHMENT Prop. 34’s narrow loss a big step toward abolition of execution,” San Francisco Chronicle, December 8, 2012). See Recent Legislation and Articles.

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