A closer look at SAFE California

May 24, 2012

Julien Ball reports on a ballot measure that will give voters a chance to abolish the death penalty--and explains why its supporters made too many concessions.

PROPONENTS OF a November ballot initiative that would abolish the death penalty in California were celebrating last month after Secretary of State Debra Bowen cleared the measure to appear on the November 2012 ballot.

Supporters of the Savings, Accountability and Full Enforcement for California Act (known as the SAFE California Act) turned in more than 800,000 signatures for the measure, far more than the 504,000 required to qualify. This raises the prospect of shutting down the largest death row in the U.S. But it also brings to the fore important debates among activists who want to see a more just system--because the SAFE California Act makes so many concessions to the supporters of law and order.

Abolition of the death penalty in California would be very significant. It would follow on the heels of the passage of death penalty repeal legislation over the past several years in New Jersey, New Mexico, Illinois and, most recently, Connecticut.

None of those states' death rows had more than 15 prisoners (Illinois' death row was much larger until 2003, when former Gov. George Ryan granted a mass commutation of all death sentences). California, on the other hand, has 725 prisoners on its death row, more than 20 percent of the total death row population of the U.S., and far more than any other state--so the potential impact of SAFE California is very significant.

Activists mourn the execution of Stan Tookie Williams and continue the fight to abolish the death penalty
Activists mourn the execution of Stan Tookie Williams and continue the fight to abolish the death penalty (Sue Sandlin)

EXECUTIONS IN California have been on hold since February 2006, when death row prisoner Michael Morales appealed his impending execution on the grounds that the state's lethal injection protocol constituted cruel and unusual punishment. U.S. District Judge Jeremy Fogel halted the execution after concluding that the last six prisoners the state had executed may have suffered excruciating pain.

The lethal injection protocol used in executions, including in California, calls for a three-drug "cocktail" that includes a sedative, sodium thiopental or sodium pentobarbital; pancuronium bromide, a paralytic which stops breathing; and potassium chloride, which stops the heart. Studies in the medical journals The Lancet and PLoS Medicine have concluded that because of an insufficient or poorly administered dose of sodium thiopental, many prisoners have been conscious when the dose of potassium chloride stopped their heart, but unable to cry out because of the effects of the paralytic.

In December 2006, Judge Fogel ruled that California's "implementation of lethal injection is broken, but can be fixed." He wrote that better training of staff overseeing executions was required, as they "almost uniformly have no knowledge'' about the drugs they are injecting. Since then, the state's death penalty has been tied up in litigation.

While the California Department of Corrections and Rehabilitation (CDCR) drafted changes to lethal injection procedures most recently in 2010, judicial review of the procedures was delayed when Fogel left the bench and was replaced by Judge Richard Seeborg. There is now a September 15 deadline to report to Seeborg on any issues related to the lethal injection procedures that would require additional hearings before he rules on whether they meet constitutional standards.

All this means that it is unlikely will be any executions in California this year. Nevertheless, it is conceivable that the court will eventually find the new procedures constitutional.

Meanwhile, the Criminal Justice Legal Foundation, a pro-death penalty group, has filed a lawsuit seeking to move to a one-drug protocol that would simply administer enough sedative to put prisoners to death. Shamefully, Democratic Gov. Jerry Brown, who has said he opposes the death penalty, ordered prison officials to consider the one-drug method last month, just days after SAFE California Act proponents had announced their measure for the November ballot.

If and when the courts approve a new lethal injection protocol, the machinery of death could ramp up quickly in California. While the state has executed 13 people since the death penalty was reinstated in 1978, 14 mostly elderly death row prisoners have exhausted their appeals and could be scheduled for execution in short order. At a time when use of the death penalty has been declining nationally, this would be a major setback.

With support for their ballot initiative at 54 percent, according to a July 2011 poll, SAFE California proponents are going on the offensive to put the California death penalty out of commission completely.

That the death penalty in California could be on the ropes is a testament to the work that abolitionists have done over the years to expose its flaws.

For example, in 2005, the anti-death penalty movement turned out thousands of people out to protests, rallies and public meetings to try to win justice for Stan Tookie Williams, the former gang leader turned children's author. Tookie's story highlighted how institutional racism in African American communities could lead to a rise in gang activity. But Tookie's work behind bars as a gang prevention and youth advocate illustrated how people can change, undermining the claim that the death penalty is reserved for those beyond redemption.

The movement was unsuccessful in saving his life--Tookie was put to death in December 2005. But when Gov. Arnold Schwarzenegger refused to commute his sentence, it further exposed the callousness of the death penalty system. A few months after the execution, a Field Poll showed support for the death penalty had declined to 63 percent from 68 percent in 2004 and 72 percent in 2002.

WHILE TOOKIE'S case showed the possibility of shifting public opinion to show death row prisoners as human beings with the potential for change, SAFE California proponents unfortunately have chosen a strategy that negates this potential, instead highlighting life without the possibility of parole (LWOP) as a just alternative to the death penalty.

The title of the measure ("Safety, Accountability and Full Enforcement") itself illustrates this strategy. The website of the SAFE California Act highlights in boldface that "[l]ife without the possibility of parole means inmates will die in prison" and asserts that "[m]urderers and rapists need to be stopped, brought to justice, and punished."

Advocates of the SAFE California Act also emphasize the cost savings that abolition of the death penalty would bring. The measure's website points out that the "death penalty system puts California on track to spend $1 billion dollars in the next five years...We need more teachers in the classroom, not more lawyers in the courtroom."

While we certainly do need more teachers in the classroom, the criminal justice system actually does need more lawyers in the courtroom--and it needs to ensure that funds are allocated so those facing trial and appeals receive proper representation. By a conservative count, 140 people have been exonerated from death rows around the country. Had many of them not had competent, at least minimally funded lawyers fighting for them in the courtroom, those innocent people might have been wrongfully executed.

The SAFE California Campaign goes on to point out that

[T]he Constitution requires extra protections in death penalty cases--protections not required for those sentenced to life imprisonment without parole--to ensure that we do not mistakenly execute an innocent person or send someone to their death just because they are poor.

In contrast, murder cases in which the prosecution seeks life without possibility of parole have none of these special requirements. Instead, such trials are conducted like any other criminal trial and usually are completed in a matter of weeks. A prisoner sentenced to life imprisonment without the possibility of parole is also entitled to only one taxpayer funded appeal, a process that is usually completed within 18 months after conviction.

The logic of this statement implies that while it is unacceptable to "execute an innocent person or send someone to death just because they are poor," it is acceptable to lock people up for the rest of their lives until they die behind bars for the same reasons--because the "extra protections" don't exist for people sentenced to LWOP.

What the SAFE California supporters are advocating is a sort of tradeoff--an end to executions in exchange for a guarantee of harsh punishment without due process. This conclusion is made explicit elsewhere on the website, when discussing the impact of the death penalty on victims:

[T]he death penalty traps survivors in decades of mandatory appeals, forcing them to relive the trauma over and over. When we condemn people to permanent imprisonment instead, family members get peace of mind and can move on with their healing--rather than experiencing decades of traumatic court dates and delays.

Along with such tough-on-crime rhetoric, the SAFE California Campaign emphasizes its alliance with law enforcement and prosecutors, the people immediately responsible for so many of the ills that plague the death penalty system--from confessions coerced by police, to the use of jailhouse snitch testimony, to questionable forensics experts, to name just a few problems.

The official sponsor of the ballot initiative is Jeanne Woodford, the new executive director of Death Penalty Focus and a former warden of San Quentin Prison and undersecretary of the CDCR. The SAFE California Campaign also has recruited a number of current and former members of law enforcement and prosecutors to serve as spokespeople, and they are listed prominently on their website.

John Van De Kamp, former DA of Los Angeles County and attorney general of California, for example, complains of the "years and years of appeals" in death cases and suggests that we can use cost savings from abolishing the death penalty towards "apprehending the guilty and making our state a safer place for our families, while providing public protection by making those now subject to the death penalty go to life in prison without parole."

Given such arguments, it probably goes without saying that SAFE California supporters are silent about the essential social issues that have driven the death penalty machine all these years--the fact that capital punishment, like the prison system in general, is reserved almost exclusively for the poor, and that African Americans and other people of color are disproportionately victimized by the system.

WORSE THAN the rhetoric that SAFE California proponents are using to advance their ballot initiative is the "tough-on-crime" language built into the measure itself. For example, the "Findings and Declarations" section of the ballot initiative, which lays out its rationale, reads in part:

Murderers and rapists need to be stopped, brought to justice, and punished...Killers and rapists walk our streets free and threaten our safety, while we spend hundreds of millions of taxpayer dollars on a select few who are already behind bars forever on death row...By replacing the death penalty with life without parole, we would save the state $1 billion in five years without releasing a single prisoner.

This language employs the worst sort of scaremongering about "killers and rapists"--exactly the same as what was used to justify the rise of the death penalty and mass incarceration in the first place. But anyone who wants to abolish the death penalty is being asked to go to the polls and essentially endorse this.

Equally troubling are provisions of the measure themselves. Like the abolition legislation passed in New Jersey, New Mexico, Illinois and Connecticut over the past few years, this ballot initiative replaces the death penalty with LWOP. But since this is a ballot measure that amends the state criminal code to specify that LWOP is the maximum sentence, from now on, only a voter-approved ballot initiative, not legislation, could challenge LWOP sentences.

Another provision of the initiative allocates $100 million over three years to be distributed to local law enforcement agencies to solve homicide and rape cases. In other words, it takes funds previously allocated at least in part to ensuring that death row prisoners receive some sort of due process, and gives those funds to the very police and prosecutors responsible for the round-up and incarceration of record numbers of people--especially in communities of color.

As California death row prisoner Darrell Lomax put it in a letter published in SocialistWorker.org:

Woodford aspires to sell to the California voter a dream of ending the death penalty and saving our cash-strapped government money, when in fact she really wants to redirect the money saved from denying prisoners the right to appeal their sentence and conviction into law enforcement agencies. These agencies have a proven track record of injustice and will only further sweep all the dirt and corruption of this police state under the rug.

Beyond this, SAFE California adds insult to injury by requiring anyone convicted of murder to work while in prison, with their wages to be applied to victim restitution funds. So prisoners who work now could be prevented from using the slave wages they earn while in prison to buy items from the commissary that most people in the outside world consider basic necessities. This is an unnecessarily cruel measure with no purpose other than to pit prisoners against crime victims.

If the SAFE California Act passes, it will mark a major milestone in the demise of the death penalty nationally. And if it does, it will be heartening that millions of people will have gone to the polls to choose an end to state-sponsored murder. But as executions and death sentences continue to decline, abolitionists need to have a broader view of what our movement is working toward.

More than 2 million people are locked up in jails and prisons in the U.S., and African Americans are incarcerated at seven times the rate of whites. Since the advent of mass incarceration, the death penalty has served as the tip of the iceberg of a racist system, justified by an ideology that tells us we have to "get tough on crime." If we are going to challenge that system and make meaningful change, abolitionists shouldn't pander to that ideology, as SAFE California proponents have done.

We should welcome every step that takes us closer to abolishing the death penalty around the country. But the SAFE California Campaign has made unnecessary concessions that all opponents of injustice must turn their attention to next.

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