In light of recent controversies among progressives and radicals concerning Prop. 62, which would abolish the death penalty in California and replace it with life without parole, we are hosting two pieces that look at the hard issues surrounding the death penalty and explain the reasons for voting Yes or for voting No. Below is the “Yes” piece by Hadar Aviram; you may find the “No” piece by Josh Meisel here.

by Hadar Aviram* 

Image: Lance Page / t r u t h o u t, via Flickr.

It’s unsurprising that the Prop 62 campaign, which calls for death penalty repeal, aims its rhetoric primarily at centrist voters; its two main arguments, the obscene costs ($150 million a year) and the risk of wrongful convictions, have strong bipartisan appeal. But lately I hear qualms about voting yes on 62 from progressive and radical voters.

If you are such a voter, I hear you—your frustration with the slow pace of criminal justice reform, your concern that unacceptable punishments will become retrenched, and your genuine, urgent desire to move things faster and farther for vulnerable populations.

But when you tell me you might be voting against repeal, it frightens me.

In my twenty-one years of thinking about criminal justice reform I have learned this: in criminal justice, the perfect is the enemy of the good. My fear is that in our quest to attain a perfect criminal justice system we will miss an essential step toward that goal.

• Entrenchment of Life without Parole

You fear that death penalty abolition will normalize and entrench life without parole—a hopeless, soul-destroying punishment, that offers no hope or prospect, and especially brutal for people incarcerated at a young age.

I agree with you. Life without parole is, indeed, an extreme form of punishment. Like you, I am committed to a struggle to open a window of hope for all prison inmates.

Unfortunately, the struggle against life without parole cannot begin until we win the struggle against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and supported by a coalition. As I explain in Cheap on Crime, incrementalism produced the considerable reforms that occurred since 2008, and this one will be no exception.

Consider same sex marriage. Radical activists sought marriage licenses in the 1970s, when such acceptance was unthinkable. Then, the movement regrouped, advocating for lesser protections (domestic partnerships, workplace protection). These incremental steps led to a gradual change in public opinion between the mid-1990s and the early 2010s, ending in legal triumph.

More pertinently, the recent revolution in juvenile justice started with Roper v. Simmons (2005), in which the Supreme Court abolished the death penalty for juveniles in light of new findings in neuroscience and developmental psychology. Subsequently, in Graham v. Florida (2010) the Supreme Court relied on the same arguments to abolish life without parole for non-homicide crimes. In Miller v. Alabama (2012) the Supreme Court relied on that logic to abolish mandatory life without parole for all juveniles, and then felt comfortable making that ruling retroactive in Montgomery v. Louisiana (2016). We are now within striking distance of abolishing life without parole for juveniles, which would not be possible without death penalty abolition.

Finally, consider marijuana legalization. Recreational marijuana would not be within our grasp today if progressive voters at the time rejected medical marijuana as insufficient reform.

Progressives are ready for change, and already know that reformed, aging inmates are not a public safety risk. But for that to happen, a consensus must develop among larger constituencies that are not ready for it yet, and it will not develop before the death penalty is repealed.

• Life without Parole as “the Other Death Penalty”

The horrors of life without parole notwithstanding, being on death row is an appreciably different experience. 747 people live in solitary confinement, without access to social and educational opportunities, in a dilapidated facility. Moreover, constant litigation pressure is fending off executions for the time being, but can you imagine living with the uncertainty of whether you’ll be executed by the state some day? In Jones v. Chappell (2014), Judge Carney found the death penalty unconstitutional for precisely this reason: the delays and uncertainty about one’s own fate. Although Jones did not prevail in the Ninth Circuit, the reasoning behind it is sound: it is very different to be a death row inmate than a lifer.

Even if you truly have no preference between the death penalty and life without parole, shouldn’t the annual $150 million price tag tip the scale toward repeal? Is it conscionable to maintain a punishment that has no virtue, when the savings could improve education, health care, welfare, and infrastructure?

Finally, think about the impact of repeal in California on other retentive states. California has the biggest death row in the country and has been the vanguard of penal innovation, for better and for worse: we pioneered determinate sentencing, enhancements, and the most punitive version of Three Strikes. But we have also pioneered important change in the opposite direction, with realignment, Three Strikes reform, and Prop. 47. The death penalty isn’t different across states, but abhorrent in all of them. Reform in Texas begins here, with you.

• Deprivation of Due Process

The California Constitution awards death row inmates free post-conviction representation. But losing these theoretical due process advantages would have very little meaning in practice: as of August 2016, 356 inmates lack habeas representation, and 46 of them don’t even have appellate representation. The average wait time for an attorney on death row is 16 years. Any effort to train and introduce more lawyers (as Prop 66 supporters propose) would require hundreds of attorneys just for cases now pending, cost tens of millions of dollars, and create speedy proceedings that would increase the risk of wrongful executions.

Would death row inmates wish to retain these so-called advantages for the price of years on death row with a possible execution? Don’t look for answers in the methodologically circumspect survey that surfaced four years ago, which, for all we know, might have been answered by a few represented inmates on death row rather than by the hundreds who languish without representation. Instead, ask Shujaa Graham, who spent 16 years in San Quentin for a crime he did not commit. For that matter, ask all 150 death row exonerees, who are passionately campaigning for Prop 62. Have you heard a single exoneree praising his good luck in being sentenced to death?

Or, you might consider the perspectives of lifers. I teach lifers in San Quentin, and what I hear from them is wall-to-wall support of death penalty repeal, a solid understanding of the incremental nature of reform, and a desire that an issue involving 747 inmates be resolved sensibly so that we can turn our attention to reforming life without parole.

• Prison Labor  

The origins of prison labor—namely, as an exception to slavery abolition—make us uneasy; prison labor perpetuates, in a new guise, abhorrent forms of coercion and racial domination.

But abolishing prison labor is not on the ballot. Abolishing the death penalty is.

Some progressive voters bristle at the campaign’s emphasis on prison labor and victim compensation, but prison labor is not a novelty—it has existed for a very long time under Section 2700 of the Penal Code, which requires that inmates work, and which is completely unaffected by Prop. 62. The outcome of repeal would be that Section 2700 would apply to a few hundred more lifers—simple because they would now be lifers, not death row inmates.

The only modification would be an increase of the maximum restitution withholding from wages (not family donations) from 50% (which is already in effect) to 60%. Is objecting to this minor increase in victim restitution a worthy progressive cause? Remember: this increase in restitution is included in the proposition to make sure that a majority of Californians—not just progressives—vote Yes on 62. It also ensures the support of victim families, an important constituency. This minor compromise is part and parcel of political achievement.

• Dissatisfaction with the Initiative Process

I agree: the initiative process is extremely problematic, plagued by economic interest deceptive ads and easily manipulated voters, especially in an extremely polarized state. But compared to propositions laden with complex policy details, Prop. 62, which presents voters with a yes/no question and has clear implications, is one of the least objectionable uses of the referendum method.

Moreover, voting “no” wholesale here would be a grave mistake. Repeal advocacy has not succeeded so far in the legislature, the courts, or the governor’s office, and not for lack of trying.

The only one who can repeal California’s death penalty is YOU.

When you look back at this election, which value will you be proud you upheld: your qualms about initiatives, or your opposition to the death penalty?

In Summary

Sometimes, even with the best intentions, overthinking can lead us astray. Listen to your heart and your common sense. Are you against the death penalty? Good. So am I. For the reasons the campaign highlights, but also for all the traditional, good reasons to be against the death penalty: because it is barbaric, inhumane, risky, racially discriminatory, and obscenely expensive.

Are you against the death penalty? Then vote against the death penalty.

Vote Yes on 62.

• • •

* Hadar Aviram holds the Harry and Lillian Hastings Research Chair at UC Hastings College of the Law and is the Vice-President and President-Elect of the Western Society of Criminology. She is the author of Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment (UC Press, 2015) and the owner of the California Correctional Crisis blog.

In light of recent controversies among progressives and radicals concerning Prop. 62, which would abolish the death penalty in California and replace it with life without parole, we are hosting two pieces that look at the hard issues surrounding death penalty and explain the reasons for voting Yes or for voting No. Below is the “No” piece by Josh Meisel; you may find the “Yes” piece by Hadar Aviram here.

by Josh Meisel*

Image: Lance Page / t r u t h o u t, via Flickr.

Among the slew of statewide ballot measures facing California voters this November 8th are two competing measures: Proposition 62 would eliminate the death penalty, whereas Proposition 66 would speed it up. Voters in two other states, Nebraska and Oklahoma, will also be deciding on the future of the death penalty. Assuming both California propositions have a majority of yes votes, the one with the most yes votes will prevail and override the other proposition.

As a professor and community activist who opposes the death penalty on principle, I will certainly oppose Proposition 66. But after considerable soul-searching and research, I will also vote no on Proposition 62 on the grounds that its mandatory requirement of life in prison without any chance of parole for a capital offense is another kind of death sentence. As Tom Murton, the one-time superintendent of the notorious Cummins State Prison Farm in Arkansas, once said, “When you sentence a man to life in prison, with no chance of getting out, he’s going to die one day at a time because he knows he’s doomed to walk the halls of purgatory for as long as he’s alive.”

The death penalty is the punishment to which all other criminal sentences are compared. Proponents of the death penalty argue it provides retribution and deters future crime. Research shows that its deterrent effect is limited to preventing specific condemned prisoners from committing additional crimes. Not only is there weak evidence of its capacity to act as a general deterrent, research suggests that crime rates actually increase following the publicized execution of an offender, suggesting a brutalization effect from the death penalty.

The death penalty is viewed by many as legalized lynching, both as a violent sentence and in its racist application. According to U.S. Department of Justice nationwide statistics, African-Americans were eight times as likely as whites to be executed for rape between 1930 and 1964. Though the death penalty is now largely restricted to cases involving murder, we know that it is disproportionately applied to African-Americans. In fact, a death sentence is far more likely to be imposed when the killer is black and the victim is white.

The use of the death penalty in cases involving juveniles was ruled unconstitutional by the United States Supreme Court in Roper v. Simmons (2005) as a violation of the 8th Amendment barring cruel and unusual punishment. In writing the majority opinion, Justice Kennedy referenced “evolving standards of decency that mark the progress of a maturing society.”  Hopefully, the Court will mature in how it views the death penalty and call for its abolition. Currently, the United States’ stance conflicts with the sentencing practices of the world community. Among developed democracies, it stands alone with India and Japan in their steadfast refusal to abolish the death penalty.

The vast majority of the 749 inmates on death row in California are male (97 percent) and at least 40 years old (86 percent), well beyond the age when violent crimes are likely to occur. Some prisoners are as old as 85, and some have been on death row for as long as 37 years. Communities of color are overrepresented on death row. Sixty percent of death row inmates are African-American (36 percent) or Hispanic/Latino (24 percent), and well over half were sentenced out of Southern California courts. The mental health of California’s death row inmates has deteriorated due to horrific housing conditions, lack of adequate health care, and chronic neglect by state prison officials.

The use of the death penalty in California is also extremely expensive. It costs far more to execute a prisoner than impose a life sentence without parole. This is due largely to the length of time inmates are caged on the more expensive death row and the costly legal process state and federal laws required to be followed.

In response to this situation, Proposition 62 would repeal the death penalty and replace it with what Barry Feld terms a “slower form of death”: life imprisonment without the possibility of parole, otherwise known as an LWOP sentence. In part because of its permanence, a death sentence has historically provided death row inmates with essential legal protections that an LWOP sentence will eliminate. Proposition 62 also adds penal labor to the sentence by requiring inmates to work, with 60 percent of their earnings and trust fund balances going towards victim restitution. The support family members and friends on the outside provide death row prisoners would be targeted by this initiative for victim restitution. Beyond a sentence of death in prison, inmates would now face forced labor for the rest of their natural lives.

Supporters of converting the death penalty to LWOP include a wide range of progressive civic, legal, human rights, and religious groups: ACLU, California Catholic Conference, Ella Baker Center for Human Rights, Youth Justice Coalition, and Equal Justice Initiative. Death Penalty Focus and other groups in favor of Proposition 62 present themselves as death penalty abolitionists, as do many state and national Democratic leaders, including Senator Bernie Sanders.

There is also a long list of academics lending their support to the passage of Proposition 62, including Harvard law professor Charles Ogletree, Jr., who previously wrote about the injustice of converting death penalty sentences to LWOP. In Life Without Parole: The New Death Penalty, Ogletree and his coauthor, Austin Sarat, provide a powerful critique of the national trend towards converting the death penalty to LWOP: “While conservative support for LWOP seems consistent with a tough-on crime politics, support for LWOP among abolitionists requires some explanation.” They make the case that despite the 170 percent growth of the LWOP population nationwide between 1992 and 2003, the death penalty population still grew by 31 percent. The shift to greater use of the LWOP option has not ended the use of the death penalty. Instead, and perhaps more ominously, it has served to normalize LWOP as a supposedly humane alternative to the death penalty. Research into LWOP experiences by Robert Johnson and Sandra McGungigall-Smith shows that “death by incarceration is just as final, just as painful, and just as worthy of the careful scrutiny to which we subject traditional capital sentences.”

Rather than repeal the death penalty, Proposition 66 would curtail the rights of the accused by accelerating the application of the death sentence through a speeded up appeals process; moving challenges to death penalty convictions back to trial courts from state courts; and establishing timelines for death penalty reviews. Taken together, these judicial changes dramatically erode due process protections against wrongfully executing an innocent person. As with Proposition 62, it also includes a penal labor clause that increases to 70 percent the proportion of inmate earnings and trust fund monies going to victim restitution. This forced labor sentence in both propositions ups the ante of the punitive state.

Voter opinions on the death penalty are coming into clearer focus as the proportion of voters who are undecided shrinks. Whereas a Field Poll conducted last month showed Proposition 62 slightly ahead of Proposition 66, there were still 42 percent of voters who were undecided. The most recent poll available, conducted by CALSPEAKS, shows 51 percent of likely voters supporting Proposition 66 (with 29 percent undecided), whereas only 37 percent support Proposition 62, with 18 percent still undecided. What seems clear from this most recent poll is that Proposition 62 is likely to lose, while Proposition 66 has gained considerable support and seems likely to pass. However, with such a high number of undecided voters, there is still an opening to defeat the pro-death penalty initiative. It is imperative that those opposed to Proposition 66 educate friends and family, neighbors and coworkers about why this ballot measure must be defeated.

As their lives will most directly be impacted by the outcome of this election, death row inmates who responded to a questionnaire sent by The Campaign to End the Death Penalty reveal opposition to both initiatives. Of the 46 inmates who responded to the questionnaire, a little over half are opposed to Proposition 62, while a clear majority oppose Proposition 66. Death row inmates who reject the Propositions see LWOP as no different than a death sentence and are concerned about losing access to the appeals process. As one prisoner writes, “both propositions are designed and constructed to further harm me, restrict my appellate rights, and deny me Justice! Therefore, I prefer to maintain my access to the appellate courts even at the risk of being murdered by the state.” Though the sample of responses from prisoners is small, it indicates that the people who stand the most to lose do not support LWOP or a speeded up death.

I stand with condemned inmates on California’s death row and reject the false assertion that LWOP sentences are an acceptable alternative to the death sentence. I therefore plan to reject Propositions 62 and 66 this November 8th.

• • •

* Josh Meisel, PhD, is an Associate Professor of Sociology at Humboldt State University where he is the coordinator of Criminology and Justice Studies. He is also the co-director of the Humboldt Institute for Interdisciplinary Marijuana Research.