In November, questions of life and death

Will November mark the death of the death penalty?

This fall, Californians will be asked yet again whether they would like to abolish capital punishment. Voters last faced the issue in 2012, a presidential election year, and rejected the idea.

“Waiting another four years doesn’t make sense,” said Quintin Mecke, deputy campaign manager for the Justice that Works coalition, which seeks to abolish the death penalty.

Thirteen  inmates have been executed in California since 1978, when the death penalty was reinstated.

“We’re trying to do what we can here in California to take action now rather than having a passive approach.” The group’s initiative qualified for the November ballot on June 17.

This year, however, voters on Nov. 8 likely will face two death penalty measures: One to abolish capital punishment entirely, the other to keep it and speed it up.

Supporters of the death penalty scrambled to get their competing initiative, called the Death Penalty Reform and Savings Act, on the ballot. The measure became eligible for the ballot just hours before Thursday’s deadline, the secretary of state said.

There are 743 inmates on California’s death row, nearly double Florida’s count and nearly three times that of Texas. Only 13 inmates have been executed in California since 1978, when the death penalty was reinstated. During the same period, more than 530 were executed in Texas.

Proposition 34, failed by a narrow 52 percent to 48 percent vote, a difference of about 500,000 votes out of more than 12 million cast.

Mecke described the measure to expedite executions as a “deceptively named proposition. It doubles down on a failed death penalty system. The idea it might be reforming anything is a misnomer.”

But others disagree.

“Voters have already rejected [a death penalty repeal] once,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. In 2014, Scheidegger helped draft the language upon which the Reform and Savings Act is based. “The competing initiative will be on the same ballot. Voters will have a clear choice.”

In 2012, the effort to repeal capital punishment, Proposition 34, failed by a narrow 52 percent to 48 percent vote, a difference of about 500,000 votes out of more than 12 million cast, and that was without a competing reform effort alongside it on the ticket. But while the Reform and Savings Act may hurt the effort to do away with the death penalty, the tide of public opinion may be shifting in its favor.

According to a fall 2014 Field Poll, support for the death penalty fell steeply from 68 percent in 2011 to just 56 percent in three years. Voters also support reform however, most recently in a January 2016 Field Poll. That poll suggested that a match-up between reform and repeal would be a close race. Of registered voters who responded to the survey, 48 percent wanted to speed up the capital punishment process and 47 percent wanted to repeal it altogether.

“When you crunch the math on that, that’s $384 million per execution.” — Quintin Mecke said, referring to California’s 13 executions.

The numbers on public opinion aren’t nearly as important to advocates as those numbers they will present to voters leading up to the ballot box. Both sides say that their solution to capital punishment will save taxpayers more money.

Proponents of the death penalty say that the costs of death row housing, lengthy litigation and other factors would would be less if their reforms are adopted.

Given the average age of inmates at the time of conviction, if the state carried out timely executions — a process that has been stalled for over a decade — inmates’ healthcare costs would drop significantly, said Joseph Esposito, an assistant district attorney in Los Angeles County. Esposito is on the executive committee for the Death Penalty Reform and Savings Act.

“If the system worked properly and once all the appeals were completed if California actually implemented the punishment that is on the books, these people would not be making it into that time where their healthcare costs were going through the roof,” he said.

But as it is, the costly system isn’t working properly, say death penalty opponents.

“When you crunch the math on that, that’s $384 million per execution,” Mecke said, referring to California’s 13 executions.

The figure is based on a study published in the Loyola of Los Angeles Law Review and on the Death Penalty Information Center (DPIC) website, which reported in 2011 that $4.6 billion had been spent on the death penalty since its 1978 reinstatement. About $1 billion of that money went towards the cost of incarceration and the rest towards litigation, the study found.

Initiatives on both side of the issues are made more urgent by the pending protocol, as California’s huge death row population represents about a quarter of the nation’s total.

The Legislature’s nonpartisan fiscal adviser, the Legislative Analyst,  says that abolishing the death penalty would save an estimated $150 million annually. That estimate is the net impact, accounting for increases in the prison population and the significant reductions of cost to the judicial system. The office’s initial analysis of the Death Penalty Reform and Savings Act say it could save state prisons up to tens of millions annually, but that state court costs may increase. The long term costs and savings of the reform initiative are uncertain.

According to Mecke, the alternative proposal would just transfer the financial burden of legal appeals to already overloaded superior courts.

At the moment, litigation has slowed the death penalty process so much that there have been no executions since 2006, when the state’s lethal injection process met a legal challenge.

In 2012, after six years of legal battles, victims’ families filed suits to speed up the process. In late 2015, the California Department of Corrections and Rehabilitation released a single-drug lethal injection protocol. The public comment period for that protocol has been extended to July 11, and the department has until Nov. 6 of this year to complete the process.

Initiatives on both side of the issues are made more urgent by the pending protocol, as California’s huge death row population represents about a quarter of the nation’s total.

“Fundamentally, it becomes a moral issue,” Mecke said, adding that though Gov. Brown, who opposes the death penalty, would be able to commute sentences, it would be a historic move to do so for all of the 18 inmates who would be the first eligible for execution under the state’s newly approved lethal injection protocol.

While each side sees the ethical gray area of capital punishment differently, neither one is happy with the system as it is.

That moral argument against capital punishment ranges across a number of issues, from the discretionary way in which it is applied to the possibility of exoneration with new forensic technologies.

The Supreme Court requires that capital punishment be applied with discretion, but the result is that the state of the conviction or the opinion of a prosecutor is more likely to influence the sentence than the severity of crime or certainty of guilt, according to DPIC. DPIC also says that 156 death row inmates have been exonerated since 1973.

But Scheidegger says that in his experience as an attorney with death row cases, it has always been justly applied.

“Every capital case I work on in California, the death penalty is thoroughly deserved,” Scheidegger said.

For Esposito, carrying out that sentence is a duty he feels towards victims’ families.

“The concept of abolishing for a lot of victims’ families feels like the system is disingenuous,” he said. “It’s very challenging to have to look at victims’ families and have that conversation with them.”

While each side sees the ethical gray area of capital punishment differently, neither one is happy with the system as it is.

“Everybody agrees the status quo is terrible,” Scheidegger said.