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*
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.
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* 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.