In the California county that houses the nation’s largest death row, voters overwhelmingly endorsed an end to executions on Tuesday. But Proposition 34, which would have repealed the death penalty and replaced it with life without parole (LWOP), was rejected statewide by a 53 – 47 percent margin. The measure drew fire from sentencing reform advocates concerned with embracing LWOP, sometimes called “the other death penalty.” But now that Prop. 34 has failed, the Golden State could see a wave of executions.
More than 700 prisoners await execution at San Quentin State Prison. But none have been carried out since 2006, when a federal judge ruled that the state’s three-drug lethal injection procedure could put prisoners in agonizing pain if administered incorrectly. Though the Department of Corrections and Rehabilitation began overhauling its procedures in response, the new protocols have remained in limbo in state courts.
But next week, the Santa Cruz Sentinel reports, San Mateo County District Attorney Steve Wagstaffe will attempt to bypass the de facto moratorium by asking a judge to allow the execution of Robert Fairbank, who has exhausted his state and federal appeals, with a single lethal drug. Six states currently use such a procecure, according to the Death Penalty Information Center. If the judge grants this request, executions could proceed at an unprecented pace — California has 13 other inmates who have run out their appeals process.
Death penalty supporters claim that the defeat of Prop. 34 could help clear the way for resumed executions. “There is no legal effect from defeating a proposition, but there is a political effect and a psychological effect,” Kent Scheidegger, legal director for the Criminal Justice Legal Foundation in Sacramento, told the Sacramento Bee. In addition to advocating a switch to the single-drug procedure, Scheidegger, who helped defeat Prop. 34, advocates a limit to the number of appeals available to condemned inmates. He notes that if the state fails to make these and other reforms, death penalty supporters may advance their own ballot question asking voters to reinstate executions in the next elections.
Meanwhile, anti-death penalty advocates are also retooling their strategy. “Yes on 34” campaigners emphasize that support for capital punishment has narrowed significantly since the death penalty was placed on the books by a 70% margin in 1978. They say that the question could soon go back on the ballot.
“Fifty-three percent is not a mandate for carrying out executions,” said Natasha Minsker, Proposition 34’s campaign manager, following the initiative’s defeat.
Supporters of Prop. 34 nearly tipped the scales in its favor by advocating death penalty abolition as a cost-saving measure. Jeanne Woodford, a retired warden of San Quentin State Prison a spokesperson for the initiative, told voters that capital punishment was “all cost and no benefit,” and that its abolition would result in $130 million in savings annually that could be distributed back to local law enforcement agencies.
But the savings would have come in part from eliminating the state-funded legal team that, during the appeals process, is guaranteed only to condemned prisoners. For this reason, many death row inmates saw the initiative as limiting their chances to prove their innocence — and said that if they could vote, they would vote against Prop. 34.
“This initiative is not about saving lives, but about keeping innocent people behind bars and limiting their rights to clear their names,” wrote Darrell Lomax, who has been on death row at San Quentin State Prison for 15 years, in a public letter.
Groups like the ACLU, which helped spearhead “Yes on 34,” advance the pragmatic position that state-level repeals will build momentum toward a national death penalty ban. But many sentencing reform activists question whether such repeals adequately address deeper injustices in the prison system. In Connecticut, which earlier this year became the 17th state to repeal the death penalty, prisoners who would have been condemned to death will now be sentenced to life without parole in 22-hour-a-day solitary confinement.
The Other Death Penalty, a Lancaster, California-based group of prisoners serving life without parole, charges: “Sadly, in a Faustian bargain, the death penalty abolition movement, with few exceptions, has bought into the lie that a slow death by incarceration is a humane alternative to a quick death by lethal injection.”
As both death penalty supporters and death penalty opponents mobilize in the wake of Prop. 34’s failure, it’s uncertain what direction sentencing reforms may take. (Californians did vote overwhelmingly Tuesday to soften the “three strikes” law, which has often been challenged as a violation on the ban on cruel and unusual punishment). The Campaign to End the Death Penalty (CEDP), which ultimately declined to endorse Prop. 34, says that future efforts should expose the death penalty as “the sharpest edge to a broken system,” rather than relying on tough-on-crime rhetoric to woo voters.
CEDP also notes that inmates were left largely out of the debate. The group says that of 50 letters it received from California death row prisoners about Prop. 34, only four supported the act.
“You need to hear prisoner voices,” said Christine Thomas, a sentencing reform activist with CEDP at a panel organized by the California Democratic Party’s Progressive Caucus. “You need to hear about the other death penalty — that people will die in prison without the chance at parole.”
Rebecca Burns is an In These Times contributing editor and award-winning investigative reporter. Her work has appeared in Bloomberg, the Chicago Reader, ProPublica, The Intercept, and USA Today. Follow her on Twitter @rejburns.