Contra Costa County, California District Attorney Diana Becton on Fair and Just Legal Reform and Ending the Death Penalty

Robert Dunham 0:01

Hello, and welcome to Discussions with DPIC. I’m Robert Dunham, Executive Director of the Death Penalty Information Center. In this episode, I’ll be speaking with Diana Becton, District Attorney in Contra Costa County, California. She’s the first woman and first African American to serve in that post. Prior to becoming DA in 2017, Ms. Becton served for 22 years as a judge in Contra Costa County, where she was elected as Presiding Judge. As District Attorney. Ms. Becton has not sought the death penalty in any case, and has promoted a variety of reform policies, including restorative justice, bail reform, and programs to divert low level offenders away from prison. District Attorney Becton, thank you for joining us on discussions with DPIC.

Diana Becton 0:43

Thank you for having me.

Robert Dunham 0:44

Over the past several years, a new wave of prosecutors have been elected who have focused on reforming the justice system, rather than taking the “tough on crime” approach that was popular for decades. Many reform prosecutors, including you, have called for reducing use of the death penalty or ending it altogether. That also represents a significant change from the often reflexively pro-death penalty policies of past generations of prosecutors. What do you think has caused the shifts towards reformed prosecutors in general, and the death penalty in particular?

Diana Becton 1:17

I think, there’s probably a variety of factors that have caused the shift for us. But certainly, we know that by concentrating on the data, that the United States, with 5% of the world’s population has become the most over-incarcerated country in the world. So I think we kind of start there, because we now 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. And we’ve also come to see that there are huge disparities in terms of who goes in to our jail and prison system and very often those people are drawn from some of our most disadvantaged neighborhoods in the country, as well as disproportionately affecting minority people. And so I think this huge growth in incarceration in our country has led to really harsh and severe consequences, not only for individuals, but for their families and for entire communities and indeed, for our country. And so, I think what has happened is in our communities, communities around the country have started understanding the connections as well, between the high incarceration rates and the role of the prosecutor. 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. So I think that’s really probably where the conversation began to start this movement — this movement that’s in place now towards having more and more reform prosecutors, and also leading us to these discussions around the death penalty.

Robert Dunham 3:25

Now, the death penalty can be looked at as a kind of policy unto itself, but also as a symbolic cornerstone of a system of mass incarceration that has embodied this harsh — and I think many would say excessive — use of punishment. How much of your opposition to capital punishment relates to the flaws that are inherent in the death penalty itself? And how much of it comes out of the role the death penalty plays in legitimizing other unnecessarily harsh punishments?

Diana Becton 3:58

Well, I think that there’s probably an overlap of, a combination of those two. Certainly, initially, I would say that my focus was primarily taking a look at the endemic flaws in our criminal justice system. For example, in California, we would say that we have a very bloated and racially biased and a very, very expensive system that costs significant resources throughout our state. In fact, in California, we have spent over $5 billion pursuing executions over the past 40 or so years. And what we know — that we haven’t had an execution since 2006 and then now we have the moratorium in place based on Governor Newsom policy. So we don’t even see that in the foreseeable future, there will be any executions in California. I’d say also, I’ve been deeply troubled by what we see is the racial bias within the administration of capital punishment. We know that in California, black residents are very disproportionately sentenced to death in the state. We have 36% of the individuals who are on death row are black and when you compare that to the fact that we have only a much smaller percentage of the population, that is very troubling. And then we also know that at least 67% of those who are in our prison systems are people of color. And then of course, you know, we have the risk, and we have proven risk of showing that there can be wrongful convictions. And once you have executed a person, that, as we know, that cannot be reversed. And I think the other piece of it is that, as prosecutors, we also have to allocate and prioritize our department resources. And so 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. And then, the final, final piece that you mention, obviously, is that it is the ultimate, right, kind of harsh punishment, that really is a part of this whole conversation of over-incarceration, and over-punishment in our country.

Robert Dunham 6:18

Last April, you talked to The Appeal about this and described capital punishment as “inherently flawed and disproportionately applied to people of color.” One of the things that we see persistently across the country, is that the folks who are making charging decisions in capital cases are overwhelmingly white and overwhelmingly male. As Contra Costa’s first black DA and first female DA, how do your experiences with racial bias and gender bias affect the approach that you’ve been taking to your role?

Diana Becton 6:52

I think that all of us are a product of our experiences, right? 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, this overly harsh criminal justice system, especially during the period, when we had the war on drugs. And so, as a prosecutor, we we 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 bring those experiences with me. And as part of my role of being the administer of justice, it forces me really to consider the needs and the interests of every member of our community. And that, of course, includes our victims, but it includes those who are charged as well. And we also have to consider the impact of our decisions on our larger communities. And so all of those experiences that I have lived through in my lifetime, my family, my parents, my grandparents, all of those things, I bring to the table with me. I think it gives me a level of compassion to this work, that I bring as the gatekeeper.

Robert Dunham 8:27

Also part of that experience is 22 years on the bench. How did that experience as a judge shape your policies as DA and also, what was it that led you to leave the bench to become DA?

Diana Becton 8:42

In Contra Costa County, I, of course, having served for 22 years over that period of time, it really gave me an opportunity to see so many things, so many changes in our role as judges, in our ability or inability to really administer justice as we might have seen the appropriate way to do so. I would say, for me, running for DA really was not something that was at the forefront of my mind as I was sitting as a judge in Contra Costa County. We had the unfortunate circumstance of the previous District Attorney pleading to felony charges and resigning and people within my community basically reached out to me knowing the work that I had already done in our community as a judge, like clean slate work and helping people to clear their records. People said, you know, with the management and leadership skills that you already have, we would love to see you in this role because we think you bring the right mindset, the right heart to this work, and that you would really try to do something different in this criminal justice system that has been so damaging to so many communities for so long. And so it was really the push from my own community that led me to make the decision to put my name in the hat. There were 12 candidates originally. I was appointed by the board of supervisors, and then duly elected a year later by the people.

Robert Dunham 10:13

What do you think you’ve been able to do as a DA in bringing about fairness in the system that you couldn’t do as a judge?

Diana Becton 10:20

One of the things that we see, particularly over time, as the pendulum has shifted so often around what criminal justice means and what safety means in our community, we’ve seen the shift from where the power lies, really. I can remember the days when, as a judge, I would hold a hearing and I would make a decision whether a young person could be charged as an adult in our county and over time, that power shifted, so that legislatively, it changed so that only the prosecutor was the one to make those filing decisions about who should be charged as an adult. And there’s just so many instances where what became clear is that because of the enormous power that the prosecutor has to decide what gets charged and who gets charged, and they have enormous power when it comes to plea bargaining and all of those kinds of things that affect so many people in our community, it’s really, really clear to see that even though everybody has a role to play, that really the prosecutor is the most powerful actor in this criminal justice system and has so much influence over what happens in terms of fairness and in terms of equity in our community.

Robert Dunham 11:35

Now, not long after you took office, the landscape of the death penalty in California changed with Governor Newsom’s announcement of the moratorium on executions. You’re part of an alliance of California prosecutors who as a group oppose the death penalty and support a range of criminal legal reforms. But I’m wondering how that announcement affected your office and your policies?

Diana Becton 12:00

First of all, I’m very, very fortunate to have fellow prosecutors in California, where we are like-minded in our thinking in terms of the importance of criminal justice reform. And to be one of the founding members of the organization, Prosecutors Alliance here in California, and also to be part nationally of Fair and Just Prosecutors is really quite an honor and it is wonderful to be able to come together with like-minded people, and to have that support for these progressive policies. And so, yes, we took a stand. We took a stand statewide. And one of the reasons Prosecutors Alliance in California is so important is because, typically, there’s only been one voice at the table and that voice is not typically from law enforcement been in favor of criminal justice reform. So as an organization, we bring our voices together, me along with three other prosecutors —[George] Gascon, Tori Verber Salazar down in San Joaquin, and also Chesa [Boudin] in San Francisco — to lend a different view, to lend a different voice, to what it means to have safe communities. Also to have a voice with respect to legislation and change in our criminal justice system. So for me in my office, though, I would say that the positions that I take are not always popular here in my office. And so what I’ve done is to be very careful and thoughtful about how the decisions are made. I will continue to work publicly to support legislation that might repeal and end the death penalty in California and indeed in our country. However, because I am in a state that by law requires consideration of the death penalty as a prosecutor, I have established a review committee on a case-by-case basis to review and make recommendations for each case. Also, we make sure that defense lawyers have an opportunity to present mitigating evidence. And so for the myriad of reasons that we’ve already discussed today — in terms of the disparities in our system, the impact on black and brown communities, and then my prioritization of resources in my office — as you’ve already stated, in my time in office, my almost going on four years, I have not authorized the use of the death penalty here at Contra Costa County. I’ve exercised my discretion in that way.

Robert Dunham 14:30

Last November — November 2021 — the California Committee on Reform of the Penal Code came out with a report on capital punishment, and it recommended that the state repeal the death penalty. Now that’s not something that can happen overnight. It’s not something that the legislature can, can just do because of certain peculiarities of California law and prior proposition votes. So in the interim, the committee urged prosecutors to take affirmative steps to reduce the size of death row by agreeing to non capital disposition of death penalty cases in which the death penalty has already been imposed, and asking prosecutors to recall death penalty cases to court for non capital resentencing. What kind of response have you seen from prosecutors across the state to the committee’s recommendations and what’s been going on in your county?

Diana Becton 15:27

We have 58 counties in California, and for the most part, we have seen over time that the prosecutors in California continue to really push back against reform efforts in our criminal justice system. And, so again, that is, that is why it is so important for those of us who are involved in the Prosecutors Alliance to lift our voices and to use our offices as demonstrations of ways that we can effectuate those changes in our own offices and using our discretion and also putting in place policies to do that as well. What we’re able to do as these cases are coming up or for review, we have an opportunity to exercise our own discretion and make a different decision that may not involve the death penalty.

Robert Dunham 16:19

When we’ve seen local prosecutors and judges promoting different legal reforms, we also see that the local prosecutors have faced retaliation from more conservative state officials. This especially seems to be true of black women who take on the inequities of the criminal legal system. I’m thinking in Florida, when Governor Rick Scott removed State Attorney Aramis Ayala as prosecutor from 21 murder cases and replaced her with a white male State Attorney, Brad King. And he did that in retaliation for her saying she would not seek the death penalty. Then just very recently, the Alabama courts disciplined a Jefferson County judge, Tracie Todd, who got suspended for 90 days without pay after having issued a ruling that barred the death penalty in four cases and declared the death penalty unconstitutional. Why do you think that black women reformers are seen as particularly threatening to the status quo? And have you personally experienced any backlash for your reform positions?

Diana Becton 17:23

Lots. Um, yeah. I think that so much of it is if you look statistically, around the country, there’s roughly 2400 elected prosecutors in our country and less than 1% of those who are elected are women of color. And 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. You had mentioned the names of some of my sisters, others, there’s Kim Fox, Kim Gardner, Rachel Rollins …. All of us around the country, as we’ve shared our stories —and they can be very painful — 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. And so it is very discouraging, on some days, to have so much pushback, to have pushback from within, in their own offices, to be faced with lawsuits over your policies and your decision making. It’s a constant battle, it’s a constant fight. But again, recognizing this is a movement, and so I think we’re on the right side of justice and we continue to be in the fight. We continue to find ways as black women to support one another across the country, and to also take care of our own mental health, if you will, as we sit in these places of power where people really don’t want us to be.

Robert Dunham 18:58

Now in California, there’s also been a different kind of pushback, not from state officials involved in law enforcement, but from outside political influences. There have been efforts to recall reform prosecutors — you’ve mentioned, George Gascon in Los Angeles and Chesa Boudin in San Francisco — and also a statewide recall election against Governor Newsom. These recalls are largely funded by out of state interests. They’ve gotten some support from police unions, but they appear to represent challenges to the will of local voters and some have characterized them as attempts to undermine local democracy. Do these kinds of efforts have a chilling effect on reformers like you, and do you think they are part of a larger and broader effort in the United States to undermine voting rights and other democratic institutions?

Diana Becton 19:55

Yeah, I think the larger effort that you mention around undermining voting rights, it’s all part of an effort to keep things the way they have always been, part of keeping things the status quo. But the work that we’re doing to reform this criminal justice system, it’s not something that, when you come to this work, you know, you can’t be afraid to take the bolder stances because we know that power will concede nothing without making a demand for it. And I think for 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. I would also say that, you know, looking back just maybe two or three years ago, when I first had the opportunity to sit at the table with Fair and Just Prosecutors, there used to just be a handful. And when I went to the most recent conference, there were about 50 of us around the table. And so the momentum, the community is basically saying, yes, we want to see something different and yes, no matter what forces are trying to fight against this movement, we will continue to elect and re-elect progressive prosecutors around the country. And I think 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.

Robert Dunham 21:51

We’ve talked about this movement that largely has been at the state and local level. Now, with the 50 members of Fair and Just Prosecution there are reform prosecutors in counties that comprise a third of the nation’s death row.I’d like to shift though, for a second from the state and local issue to the national death penalty. You’re one of more than 50 current and former prosecutors who signed a letter to President Biden, in January 2021, calling on him to commute the death sentences of everyone who is on death row and to essentially dismantle the federal death penalty apparatus. As a local prosecutor, how would the end of the federal death penalty affect what you do? And why was it so important to urge President Biden to take these actions?

Diana Becton 22:45

I think, again, I’m very fortunate to sit at the Fair and Just Prosecutors table because it does give us an opportunity to lend our voices not only to issues that are of importance in our local jurisdictions, but issues that affect our entire country. And on the federal level, we know that over the last, say, 40 to 50 years, there’s been a lot of efforts to try to make America’s death penalty system somehow fair and somehow just. But the reality is that, I think we’re all learning based on the data and the statistics, 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. And I think we are seeing other countries abolish the death penalty. And I think on the federal level, if we were to have that message from our federal government — that we’re not going to be a part of a system that continues to be broken and continues to affect so many lives disproportionately, and in such a racially disproportionate way, not to mention the fact that there have been wrongful convictions — that we as a government would say, “no more” for our country, that we want to stand up for something different. I think that will help prosecutors on the local level. It will also help us with legislation on the local level, to be able to push for an end to this harsh thing called the death penalty.

Robert Dunham 24:27

Looking to the future, what do you think the wave of reform prosecutors, and the backlash means for nationwide efforts at legal reform, both in general and and with respect to abolishing the death penalty?

Diana Becton 24:44

I think going forward in the future as we continue to see communities, communities — the people are demanding something different from our criminal justice system, and it is really the people who continue to elect us and elect us in greater numbers. Because these elections, the election of prosecutors who are reform-minded, means that we actually are electing prosecutors in those places where the jurisdictions are fairly large, it also means that we are building a significant amount of change around the country. And I think going forward, even though there’s some challenges currently, that we will continue to see people in our communities and around our country say that they want to see something different. They want to see the system that is has such a negative impact on certain communities in our country, they want to see this change effectuated. And so I think that even with the backlash, we will continue to see this change, this movement grow. And I think especially as we grow in strength and numbers, we will also be able to have more, say, if you will.

Robert Dunham 26:00

We’ve covered a lot of ground. And I’m just wondering, is there anything else that you would like our audience to know?

Diana Becton 26:06

I would simply say that those of us who are doing this work, are very committed. We are grateful for the support that we get from those of you who are in the audience and those in our communities to do this work. And we, we know that we’re standing on the right side of justice, and we hope that when we look back that you’re standing with us and helping us in this fight, to bring a new definition of what safety means in our communities, a definition that includes the interest of everyone.

Robert Dunham 26:40

District Attorney Diana Becton, thank you for joining us on Discussions with DPIC.

Diana Becton 26:44

Thank you so much for having me.

Robert Dunham 26:46

To learn more about DA Becton and the work of the Contra Costa County District Attorney’s office, visit contracosta.ca.gov. To learn more about the death penalty, visit the Death Penalty Information Center website at www.deathpenaltyinfo.org. And to make sure you never miss an episode of the podcast, subscribe to Discussions with DPIC in your podcast app of choice.