The return of the capital punishment game

After a generation of decreasing use, the death penalty seems poised to return to presidential campaign battles, and this could lead to more executions — and not just because of Trump.

Republican presidential hopefuls are running around shouting "Off with their heads!" Trump has called for firing squads and guillotines. Not to be outdone, and unfortunately a more effectual Red Queen impersonator, Florida Governor Ron DeSantis, has engineered the passage of a state death penalty bill, effective immediately, that lowers the standard for a criminal penalty finding for execution from 12-0 to 8-4 jurors.

Apart from political posturing, actual capital punishment has, fortunately, been in decline for several decades.

... the death penalty has become more of an abstraction in the past two decades. In 2020, for example, just 18 people were sentenced to death in the United States, despite years of Republican dominance of state-level politics. That’s down from 114 in 2010 and 223 in 2000.

Washington Post columnist Jason Willick shares the thoughts of a New York University sociologist, David Garland, who argues that "the purpose of the death penalty in Western societies has changed over time." Essentially, for a certain sort of politician, killing someone is a political chess move that provides a boost.

... “The system of capital punishment that exists in America today is primarily a communication system,” Garland argued. “It is about mounting campaigns, taking polls, passing laws, bringing charges, bargaining pleas, imposing sentences, and rehearing cases. It is about threats rather than deeds, anticipated deaths rather than actual executions. What gets performed, for the most part, is discourse and debate.” ...

The purpose of the death penalty, in other words, is no longer protecting the state or the public as such. It’s to be a source of material for politicians, activists, journalists, filmmakers and others....But the GOP’s death-penalty hype doesn’t break with the “late-modern mode” of capital punishment. Instead, it’s a perfect illustration of it. As the death penalty fades, calls for executions may become an increasingly valuable commodity for political entrepreneurs. ...

If we don't want Joe Biden pulling a Bill Clinton and furthering the execution of some unpleasant, but still human, offender to prop up his cred with "moderates," we need to let Democrats know loud and clear there will be penalties for playing in the judicial killing contest. The Death Penalty Information Center  and local ACLUs are a good place to start.

H/t to Kareem Abdul-Jabbar for raising up this eruption of performative blood lust, once again.

Franky Carrillo is running for Congress

In 2011, Franky Carrillo won release from prison after 20 years in prison where he had been serving a life sentence for a crime he didn't commit. From ages 16 to 37, the state locked him up.

Los Angeles cops needed someone to charge for a drive-by murder in the suburb of Lynwood. Suspecting Franky, they showed other boys in his friendship set a photo of him until one fingered him for the shooting -- and the "witness" then persuaded the other boys present to go along. Carrillo protested his innocence. It took two trials, but eventually the police got to notch a win and Franky was sent away.

The Northern California Innocence Project took up Carrillo's case. The wheels of justice ground slowly, but ...

The conviction was overturned after the six eyewitnesses all admitted that they did not really see anything and had been influenced to identify Carrillo. In addition, two other men confessed to the shooting and said that Carrillo was not involved.

Carrillo has always been a person who worked to improve himself and to give back to other victims of injustice. After prison, he completed college studies and formed a family. I met him when he appeared in the only TV ad we could afford to run on behalf of the 2012 initiative campaign to end the California death penalty. The guy was a natural and he had a story of legalized miscarriage of justice to tell. Too bad we couldn't afford enough TV to get the message out further. (We lost that round narrowly, but probably separated elite opinion in the state from capital punishment and made room for Governor Newsom's subsequent blanket repudiation of the practice.)

Now Franky aims to win a seat in Congress. CD-27 is one of the few truly swingy seats in the state. He explains that he knows in his bones that ..

there are people who abuse their power and benefit from the system. I fought a rigged system and won my freedom.... Now, I’m running for Congress to reform the rigged systems that leave working Californians behind.

I don't know if Carrillo can defeat the incumbent, Republican Mike Garcia. I don't even know if Carrillo can emerge from the primary as the Democratic standard bearer. A lot of Dems are going to want to challenge Garcia.

But I sure love the idea of someone who knows the injustices in the system so viscerally sitting in the House of Representatives in DC.

Texas is about to commit a crime

The state of Texas plans to execute Melissa Lucio on April 27 for killing her 2 year old daughter Mariah in 2007. 

According to the Innocence Project, the child's death was "a crime that never occurred." Yes, there was a dead toddler. And there was a huge Latinx family living from hand to mouth in a culture of deep poverty and dysfunction that was inexplicable to the Anglo legal system. Add an ambitious DA who needs a "win" -- a conviction came easy. Oh yeah, that DA later was convicted of corruptly profiting from drug crimes. But none of that helped Melissa -- Texas aims to kill her.

The documentary The State of Texas vs Melissa is an extraordinary accomplishment, introducing and unveiling a maze of incomprehension mixed with love and malevolence. 

 The incomprehension is well-nigh universal. For her family:

"As close as we were, there were a lot of things happening. Maybe we just wanted to block it out. ... it's like opening up our wounds. ... there's nobody there to set her free. we need to continue to live."

And Melissa herself:

"If I was out there, I'd have my children with me ..."

Filmed at a moment in Melissa's long travail when there seemed more hope than today that justice might prevail, it is absolutely worth viewing.

Take a look and join the campaign to stop this mad execution.

It's official: we will vote June 7 on whether to recall Chesa Boudin

Our progressive District Attorney was never supposed to win election, as far as the City establishment was concerned. The fix was in. The Mayor even appointed her preferred candidate as "interim" D.A.

But in 2019, the voters had other ideas. 

So disgruntled losers fanned discontent among a grumpy pandemic electorate and are dragging Boudin back into another campaign, just when the reforms he's attempting might be hitting their stride.

Turning an entrenched system of dubious justice around is hard. Boudin may not succeed. But there are plenty of Republican moneybags and some conservative Democrats, not to mention the SFPD union leadership, who aren't willing to let the man try. 

So we have to vote in a rerun.

Boudin's detractors will have all the national right wing money they could wish to run whining ads, many of them just lies. Let's hope we're smart enough to ignore the noise.

Ryan Alexander-Tanner has made the case for Boudin's reforms in cartoon format.

As far as I'm concerned, this alone might be enough to earn my vote.

But there is so much more.

Great news -- amid a revealing frame

Ruth Maclean reports from Senegal that legislators in the nearby West African nation of Sierra Leone have voted to abolish the death penalty. In this, they follow the trend among African countries. 

The vote in Sierra Leone came against the backdrop of a steady march in Africa to discard brutal laws imposed by past colonial masters. In April, Malawi ruled the death penalty unconstitutional. In May of 2020, Chad did the same.

Nearly half of Africa’s 54 independent countries have abolished the punishment, more than double the number from less than two decades ago.

Sabrina Mahtani, the co-founder and former executive director of AdvocAid said Sierra Leone’s decision to do away with capital punishment was remarkable especially because it is still recovering from the 1991-2002 civil war that was characterized by intolerance, atrocities and extreme violence. ...

“Here’s a small country in West Africa that had a brutal civil war 20 years ago and they’ve managed to abolish the death penalty,” Ms. Mahtani said. “They would actually be an example for you, U.S., rather than it always being the other way around.”

African anti-death penalty activists hold on to hope that Ghana and Nigeria might follow their smaller neighbors. 

Ms. Mahtani is certain she knows the origin of execution laws in West Africa: 

“The death penalty is a colonial imposition, and these laws were inherited from the U.K.”

If anti-colonial national pride can help prompt death penalty repeal, let's hope for more of that sort of sentiment. 

Photo credit: City Center, Kabala, Sierra Leone, October 2009

Polling distortions

Pew Center pollsters report a finding that interests me quite a lot. Respondents consistently report more support for the death penalty when polled online than they do when answering questions from a live interviewer on the phone. The difference is quite significant.

In a survey conducted on the American Trends Panel [online] in August 2020, 65% of adults said they favored the death penalty for people convicted of murder, while 34% were opposed. In a telephone survey over a nearly identical period, 52% of adults favored the death penalty and 44% opposed it. On the two prior occasions when the Center asked this question in both survey formats, support for the death penalty was 9 and 10 percentage points higher, respectively, in the online surveys than in the phone polls. 

 ... The experience of taking surveys is different when respondents are speaking with a live interviewer, as opposed to answering a question online. In addition, survey questions that ask about sensitive or controversial topics – and views of the death penalty may be one such topic – may be more likely to elicit different responses across modes, perhaps attributable to social desirability bias. When mode differences stem from social desirability, data collected via self-administered modes (e.g., online) is typically more accurate than data collected by an interviewer (e.g., by phone), all else being equal.

That is, apparently decades of campaigning against unequal justice and racial bias in sentencing, not to mention ethically motivated opposition to execution by most religious organizations, have made it slightly taboo to announce you want the state to kill offenders. Yet as we know, a lot of people still do feel there is no justice without some state killings.

The gap between support for executions in online studies and live interviews was wider (more toward the pro-death penalty position) among Black and Hispanic respondents than among whites. College grads of all races were also more likely to express support online than in live interviews.

It seems notable to me that the trend of support for the death penalty looks as if it is steadily falling if you look primarily at the gray live-interview lines -- not so much so if you focus on the online numbers.

Having worked on a failed campaign to end the death penalty in California in 2012 which was explicitly, and very carefully, designed to take advantage of trends we saw in the polling, were we at least in part hoodwinked by over-optimistic research?

• • •

An additional Pew poll finds that opposition to the death penalty is stronger among atheists and agnostics than among any religious group. Religious leaders may decry executions, but the ranks of their followers are ambivalent when not enthusiastic.

A 23rd state ends capital punishment

Virginia's Governor Ralph Northam signed a bill yesterday that abolishes the death penalty in his state. 

Diligent local activists and a fortunate conjunctions of political forces made this long sought change possible. 

Last summer’s reckoning with racial inequity, sparked by the killing of George Floyd in police custody in Minneapolis, altered and intensified the public conversation about criminal justice, several Democrats said.

Northam, facing the last year of his term, considered statistics showing Black Virginians are many times more likely to face the death penalty and decided it was time to act, he said in an interview. Several lawmakers said Northam’s declaration of support for abolishing capital punishment made the issue a priority.

With the governor’s mansion and all 100 seats in the House of Delegates on the ballot this fall, there are no guarantees that Democrats will maintain their grip on power into next year. They had to act now or risk losing the opportunity.

Democrats down the road in D.C. should pay attention -- thanks to citizen activism, they have a conjunction of forces in Congress that could enable them to seize the time and strengthen democracy and justice in many arenas -- if only they'll act decisively.

• • •

Duke University Law professor Brandon Garrett provides a short, comprehensive analysis of how death penalty opponents got the change done in Virginia and will eventually across the country. The death penalty is racist, applied unfairly by contemporary standards which good lawyering can reveal, expensive, and to many, simply repugnant. We no longer have to kill people identified as offenders in order to feel we are a just society.

End the federal killing spree

Joe Biden, once in office, will have the power to put a quick halt to one facet of the Trump/Barr drive to further embed cruelty and retribution in our political fabric. Such a move would stir up howls from the vengeance caucus, but it would make us a better country.

Countdown in a San Francisco window. Accurate as of January 1.

According to Andrew Cohen of the Marshall Project, writing at the Brennan Center for Justice, a president can halt activations of the federal death penalty which before Trump had sat unused for 16 years.

The Trump administration’s decision to execute five condemned federal prisoners during the presidential transition — an unprecedented killing spree — stems from the same blunt theory of governance that saw Senate Majority Leader Mitch McConnell refuse to hold a Supreme Court confirmation hearing for Merrick Garland in 2016 while rushing to confirm Amy Coney Barrett earlier this year.

In each instance, those with power eschewed cherished norms and political comity and used it. Their right to do these things gave them the might to do it, you could say, regardless of what the rest of us thought about it all.

In a little over four weeks, Joe Biden will have that same power to write his own history with capital punishment in America. The central question is whether he has the political will and moral strength to exercise the power. He can empty federal death row in Terre Haute, Indiana, by commuting to life-without-parole terms the death sentences of the 50 or so people left on it. He can direct the Justice Department to instruct each and every U.S. attorney around the country not to pursue capital charges for federal crimes. He can order the completion of a death penalty study disappointingly left unfinished during the Obama administration.

Very gradually, this country has been learning that demanding the government kill terrible offenders for us neither creates moral satisfaction nor justice. Our legal processes are riddled with inequities that ensure that poor and dark defendants never get the kind of fairness that rich and white people can buy. The requirement that juries in death penalty cases be made of people who state a willingness to apply the ultimate sanction undermines any potential for understanding and mercy. The tangle of legal safeguards that we've added to a bad system to try to minimize its racism and class bias merely drag out an inherently inequitable, over-complex, expensive, and drearily lengthy process.

Before the Trump/Barr killing spree, we were backing away from capital punishment. According to the AP:

Colorado in 2020 became the 22nd state to strike death-penalty laws from its books. Currently, 34 states have either abolished the death penalty or not carried out executions in a decade or more even though their laws permit them, the report said. This year, Louisiana and Utah passed the 10-year mark of no executions.

Historically, it has been mostly the states, not the feds, that executed. The death penalty degrades us all. Joe Biden can walk the federal government back from this misbegotten relic.

Wrong the first time and still wrong now

The LA Times reports: 

The Justice Department will seek to reinstate a death penalty for Dzhokhar Tsarnaev, the man who was convicted of carrying out the 2013 Boston Marathon bombing, Atty. Gen. William Barr said Thursday.

... “We will do whatever’s necessary,” Barr said. “We will take it up to the Supreme Court, and we will continue to pursue the death penalty.”

This isn't about a finding of innocence. Tsarnaev is the surviving Boston Marathon bomber; he did it; he's a murderer. But this overturns his death sentence, unless Barr wins a different verdict from a higher court.

The appellate court didn't question the local federal judge's ruling that Tsarnaev could get a fair trial in Boston in 2015 -- although residents of that city had endured being locked in their homes while police chased the killers. The appellate court saw nothing wrong with the trial judge vigorously excluding from the jury anyone who had qualms about the death penalty. (This is considered proper law; such a panel is called "death-qualified.")

No, the decision to throw out the death penalty assessed by the 2015 jury turned on the trial judge's feeble questioning of potential jurors for bias. His inquiries had not been adequate to assess their "impartiality." It turned out the woman who became the jury foreman had called Tsarnaev "a piece of garbage" on social media. And the judge learned that before the trial took place.

So Barr's Justice Department wants to go back to court to be allowed to kill Tsarnaev.

This is crazy. 

The only reason Tsarnaev was tried in a federal court in the first place was that Massachusetts doesn't have a death penalty. Murder is ordinarily tried in state courts. The usual course of action, even for so hideous a crime as the Boston Marathon bombing, would have been to let the state's justice system do its job. 

But Attorney General Eric Holder's Justice Department thought the Marathon terrorist should die. And didn't think a Boston jury would opt to kill him. Polling at the time of the trial showed that a majority of the people in the region didn't support execution.They don't equate state killing with justice.

A remarkable report in the NY Times at the time of the verdict captured the local sentiment: 

“I was shocked,” said Scott Larson, 47, a records manager who works near the finish line. “The death penalty — for Boston.”

To many, the death sentence almost feels like a blot on the city’s collective consciousness.

 ... Neil Maher, who spent his teenage years in Boston and returned this weekend for his class reunion at Boston College High School, said the verdict had surprised and disappointed him.

“They ought to demonstrate a little humanity,” said Mr. Maher, 66, who lives in Frederick, Md. “Killing a teenager’s not going to do anything. I think it’s just a kind of visceral revenge. I think that in three years, the people of Boston and the people on the jury will feel bad about this decision.”

I am not aware that anyone is polling now to find out. 

New Yorker journalist Masha Gessen wrote a book about the crimes of the Central Asian teenager who became a terrorist. She reminds us:

... “Just to be crystal clear,” [appellate Judge] Thompson wrote, “Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.”

Tsarnaev is held in solitary confinement under what are called “special administrative measures,” which include a ban on communicating with anyone whom Tsarnaev didn’t know before he was jailed and in any language other than English. This is, in all likelihood, how he will spend the rest of his life. ...

Enough.

Vengeance, only vengeance

After a decade break, the federal government is back in the retail killing business, thanks to the cruel enthusiasms of the Orange Cheeto, of his slimy obedient toady Bill Barr, and of a Supreme Court majority which privileges legalistic form over human justice. Add to that malevolent stew a dash of Law'nOrdure politics and you get three dead old men, at least one with Alzheimers, in a busy week at the death chamber in Indiana.

The death penalty is always arbitrary. Bad guys who are poor, whose lives are particularly repugnant, who have lousy lawyers, who are disproportionately of color, get the orders for execution. Other criminals with slightly better luck get long time, or even no time, for equally awful offenses.

The scholar of the death penalty Austin Sarat enumerates how "tough on crime" policies have distorted charging and sentencing in the federal courts.

A Department of Justice study published in 2000 found significant racial disparities in the department’s own handling of capital charging decisions. It reported that from 1995 to 2000, minority defendants were involved in 80% of the cases federal prosecutors referred to the department for consideration as capital prosecutions. In 72% of the cases approved for prosecution, the defendants were persons of color.

In addition, white defendants were twice as likely as members of racial minorities to be offered a plea deal with life in prison as the punishment.

Another study found a similar pattern in drug kingpin cases. The vast majority of defendants convicted under the 1988 law have been white. However, when the death penalty has been used in those kinds of cases, only 11% of the people convicted were white, while 89% were black or Hispanic.

And racial minorities now comprise 52% of the inmates awaiting execution at the federal penitentiary in Terre Haute, Indiana, a figure only slightly lower than the 55% found on state death rows.

But race is not the only source of disparity in the federal system. Geography plays a key role as well in both charging and sentencing decisions.

From 1995 to 2000, 42% of the 183 federal death cases submitted to the Attorney General for review came from just 5 of the 94 federal districts.

Federal death verdicts, like those in the states, are concentrated in the states of the former confederacy. Three of them—Texas, Missouri, and Virginia—account for 40% of the total.

We endorse state killing of offenders because we feel some acts are so bad something has to be done. But the feeling makes bad law. The Los Angeles Times has been through California's death penalty wars and knows what to ask:

... This is justice?

Backers of the death penalty argue that it is there to dispose of the “worst of the worst,” but in practice it falls disproportionately on people of color, the poor and the mentally ill, and executions usually come so long after the crime itself that there no longer is a penological justification for it.

So we’re left with vengeance for the sake of vengeance, even if it means letting the government kill its own citizens, a brazenly excessive use of government power.

One more injustice that's got to end.

Tough choice

I feel as if I'd written this post before -- and I more or less did -- during the primary race which left Los Angeles County with the choice of either reelecting incumbent District Attorney Jackie Lacey or replacing her with George Gascón, a former San Francisco D.A. But it keeps happening: well-known national and Southern Californian progressives like Bernie Sanders and Maxine Waters, Dolores Huerta and Jackie Goldberg, even usually less knee-jerk partisan commentators like Ezra Klein, even San Francisco's new progressive D.A. Chesa Boudin, keep telling me that Gascón is part of the new wave of progressive prosecutors who are bringing less punishment and more justice to criminal law enforcement.

As someone active for years in trying to bring to some measure of justice to bear against trigger-happy cops who killed Alex Nieto, Amicar Perez Lopez, Luis Gongora Pat, and Mario Woods in 2014-15, I find the fulsome endorsements of Gascón disorienting. Gascón was AWOL in the context of these police killings, refusing to charge police officers in any of them.

Not that Gascón's current endorsers are "wrong," because elections are binary events from which you can't always get what you want. When voting, you have try to get what you can. But let's apply some nuance here.

I understand that Jackie Lacey, though the first woman and the first African-American in the D.A. role in Los Angeles, is not a progressive choice. She too has failed to charge cops who kill and is notable as one of the few D.A.s in the state still bringing special enhanced murder charges that carry the death penalty. The California death penalty system is totally dysfunctional and our current governor has made clear that no death sentences will be carried out on his watch. She's just wasting money and legal angst by continuing to bring these charges. In the context of the current racial reckoning, the Black Future Project is picketing her house, demanding she resign!

But George Gascón is not a simple alternative. On formal, high profile, declared policies -- he's been a valuable voice among a law enforcement community hooked on punishment. He has supported bail reform, ending the war on drugs, clearing old marijuana conviction records, and alternatives to incarceration for juveniles.

But on charging decisions, his record looks highly political in the bad sense of trying to avert criticism from powerful detractors. Though he backed a "Blue Ribbon" study of police malpractice (and its indictment of police practices is quite incendiary,) somehow no cops who killed on his watch in San Francisco had to face a jury. He may have rightly judged that under the law as then written it would have been hard to convict, but the community was left feeling hung out to dry. Did the lives of these men matter?

Yet when powerful establishment forces line up to push him, he'll overcharge and posture on a bad case. I'm thinking of the high-profile shooting of Kate Steinle by a dumb and dazed undocumented immigrant. This tragedy was clearly a murderous accident, but Donald Trump and all our national Know-Nothings were screaming for blood. Gascón's charges against the shooter all demanded a finding of malevolent intent to reach a guilty verdict; the jury wouldn't and couldn't convict. Gascón demonstrated he can be pushed around; L.A. progressives, take note.

If I lived in L.A., would I vote for Gascón? I guess so. It would be hard, but I believe in making tactical choices with open eyes. And if this guy manages to win, folks better stay ready to get after him ...

Good news you understandably might have missed

While we were all trying to adjust to being locked down, some good stuff happened out there.

Did you know that Colorado abolished the death penalty last Monday? Governor Jared Polis signed the measure sent him from the Democratic legislature eliminating capital punishment and also converted the sentences of three men awaiting execution to life without the possibility of parole. This makes Colorado the 22nd state without a death penalty. Many states, including California, retain death penalty laws on the books, but seldom or never execute convicted offenders....Early in March, Marine Corps Commandant Gen. David Berger ordered removal of Confederate paraphernalia from all of the service's bases. Oh, you thought that the victor in that war had been determined a century and a half ago? So did I. But after members of Congress had held a hearing on white supremacist activity in the ranks, the general felt he should take action.

"We're not being politically correct -- nobody told me to do this. The sergeant major and I are just trying to do what's right for the institution.

"We're trying to make it better."

...

Finally, the Water Is Life movement scored a big win against a dangerous, dirty oil pipeline.

... a federal court issued a major ruling in favor of the Standing Rock Sioux Tribe’s legal challenge to the Dakota Access Pipeline. The D.C. Court of Appeals found that the Army Corps of Engineers violated federal law in giving the pipeline a permit to cross beneath the Missouri River, at a spot just north of the Standing Rock Indian Reservation, whose residents say the pipeline poses an ongoing threat to their drinking water, sacred sites, and way of life.

“This decision vindicates everything we have been saying,” Dallas Goldooth, a grassroots organizer with the Indigenous Environmental Network, tells Mother Jones. “Indigenous expert knowledge cannot be ignored. The fight to keep fossil fuels in the ground cannot be ignored. This is a huge win, not just for the Standing Rock and Cheyenne River Sioux Tribes, but for the hundreds of other nations fighting extractive projects on their lands.”

Will this hold up in court? There's a chance. The victory is a reminder of what Native Americans have to know: never say never.

A ritual hazing ...

When San Franciscans elect prosecutors who the city establishment and most especially the police union fear will be less than completely hostile to offenders, they pounce early and hard to discipline the new official.

Senator Kamala Harris could testify to this. In 2004, as the newly elected D.A., she did what she'd run saying she'd do -- she refused to demand the death penalty for David Hill -- a young criminal who had killed a cop. (No, not the other way around -- cop kills citizen -- as has happened too frequently in recent years.) She instead asked a sentence of life without parole. This was treason to her detractors. The police union, the victim's family, the local media, and Senator Dianne Feinstein all went ballistic. They could not accept the possibility that justice could be done without the death penalty.

Now newly elected District Attorney Chesa Boudin is receiving the outrage treatment for his decision to put charges against a suspect on hold while his office investigates the entirety of the circumstances in which this defendant is charged with attacking cops who then shot him. The charges could come back if they seem warranted. The cops who shot the guy (with the result he has had his leg amputated) can't very well serve as witnesses until their own conduct has been evaluated, can they? A fair-minded observer might think so. But the city establishment is horrified.

I think it is fair to say that Harris learned her lesson; to advance politically she needed to avoid stirring up such a hornet's nest again -- and she didn't in her subsequent career. She continued to "oppose the death penalty" but avoided any chance to do anything about it either while D.A. or from her later perch as state Attorney General. I didn't follow her career in law enforcement closely; some progressives in the legal world were rabid about what they saw as her failures to advance justice when she ran for president.

Somehow I don't think Chesa Boudin will learn to back off after the current howling in some city quarters. He ran against precisely the unequal justice he has seen in the system as public defender. He doesn't seem to want to give either cops or crooks an unfair break -- something which some who have been accustomed to special treatment will experience with shock. And so far there's no suggestion Boudin is using the D.A. office as a platform from which to leap to a higher office. He seems to actually want the job he just won. San Franciscans can hope he'll make a success of it.

Californians still conflicted about the death penalty

According to an L.A. Times poll, we still like the death penalty. But a majority also supports Governor Newsom's decision to grant a blanket reprieve to all 737 convicted inmates sitting on death row, apparently interminably.

I look at the split consciousness in this poll and I see Californians absorbing what anti-death penalty campaigners have been trying to explain for a decade: death sentences have become a cruel hoax. Who is charged and tried under a possibility of execution is a question of which county the crime took place in. Most prosecutors have decided that death cases are too expensive and too hard to win, so they opt for charges that will send the bad guy away for the rest of his life. Which charges prosecutors bring are often discretionary; communities of color that have learned that they can't trust the authorities. These communities assume actual or structural bias in charging decisions (they believe the DA comes down on black men at every chance!) and they may be right. Meanwhile, thanks to the good work of death penalty lawyers, California doesn't actually execute condemned prisoners; it just warehoused an ever larger number in the most expensive possible confinement until Newsom broke the logjam.

The state's major media and political class (the subset of citizens who attend to policy and politics) absorbed this lesson a decade ago, but a majority remain hesitant to give up the possibility of "an eye for an eye." Support for the death penalty expresses a gut need for social condemnation of terrible acts. Could a less-than-lethal sentence satisfy our need to feel justice has been done?

Campaigners against the death penalty have been offering sentences of "life without possibility of parole" as the substitute. But an untrusting fraction of us just doesn't believe the system will keep its promises. According to the pollster:

“People in some ways think that that’s the preferable way to go,” [Mark] DiCamillo said of life in prison without the possibility of parole. “But there’s a segment of the public that believes there will be some way, somehow down they road they will be able to get out.”

Too many citizens feel too little reason to trust the government.

At least for the duration of Gov. Gavin's term, California won't have executions, though a few county DAs are still charging heinous crimes as offenses that might allow the death penalty. It ain't over ...
...Concurrently, the gaggle of Democrats who want to be president are largely coming out in opposition to the death penalty. Presidents don't have much actual sway over executions; only 62 prisoners are under federal order of death. There hasn't been a federal execution since 2003. It's state governments that kill, more and more rarely.

Apparently the presidential contenders consider their stance at least politically neutral, if not a net benefit to their campaigns.

If candidates “thought they were going to hurt themselves by coming out against the death penalty, I really think very few would do it,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles who specializes in election law and governance. “I think the consensus (among candidates) is, this is where public opinion is or is about to be.”

Former Vice President Joe Biden is an outlier among the Democratic field in clinging to his long approval of a federal death penalty.

Judicial bias showing

Hoda Hawa of the Muslim Public Affairs Council writes:

Two Rulings Strengthen Perception of Anti-Muslim Bias in Supreme Court
Last Thursday, the Supreme Court (SCOTUS) ruled to delay the execution of Patrick Murphy, a Buddhist inmate in Texas, until his spiritual advisor could be present.

In March, SCOTUS rejected a similar appeal made from Domineque Ray, a Black Muslim inmate in Alabama also facing execution. Ray’s case was rejected for making the request “too late,” whereas Murphy’s request was given with less notice and accepted. This is a double standard. On the heels of last June’s SCOTUS ruling in favor of the Muslim Ban, the inconsistent rulings only strengthen the perception of an anti-Muslim bias in the Supreme Court.

... The Supreme Court is fundamentally a deliberative body made up of people with biases, ideological dispositions and juridical styles — a fact made clear during every confirmation proceeding, but perhaps made most apparent during Justice Kavanaugh’s confirmation hearings. The integrity of our judicial system rests on the assumption that a judge’s beliefs and ideologies does not bear on the ability to consistently interpret the law. The Court’s decision in the Muslim Ban case and the flip between the Ray and Murphy cases are clear examples of how Justices’ personal and discriminatory biases can still generate inconsistent judicial rulings between cases. ...

Advocates do not usually call out judges by ascribing their decisions to simple, blind, prejudice. We like to think judges are ruling based on their understanding of law. Simply prudentially, lawyers who might have to argue before judges again don't want to break the illusion and get judicial backs up. But when the law turns ugly, there is no other recourse but to tell the truth and go to the consciences of the people.

US Muslims are far from the first repressed minority to have to call out a biased court. The Black civil rights struggle of the 1950s and 60s combined careful, strategic, legal advocacy with street heat such as the lunch counter sit-ins which demonstrated the injustice of "separate but equal" Jim Crow laws. The LGBT movement more than once responded to judicial bias with public kiss-ins to highlight where the real scandal was located.

With US courts packed with more and more Federalist Society judges who replicate and advance the prejudices of their Republican sponsors, it's likely that such extra-legal demands for recognition from unfavored groups will have to go side by side with legal advocacy to uphold the rights of minorities. US history says such protests can sway the judicial system, but there will be casualties along the way.

Californians turning against the death penalty?

A new Public Policy Institute of California survey finds the highest opposition to executions ever:

Majorities Favor Life Imprisonment over the Death Penalty
In the wake of Newsom’s decision to place a moratorium on the death penalty in California, our survey tracks if residents’ views have shifted over time. When Californians are asked whether the penalty for first-degree murder should be death or life imprisonment with absolutely no possibility of parole, a record-high 62 percent of adults (58% of likely voters) choose life imprisonment. Just 31 percent of adults (38% of likely voters) favor the death penalty. By contrast, California adults were evenly split in 2000 (47% life imprisonment, 49% death penalty).

This result is hard to square with repeated failures to pass anti-death penalty initiatives in 2012 and 2016. An LA Times discussion of the polling history suggests that those measures failed because opponents succeeded in making the vile crimes of vicious men the content of the vote.

Perhaps, but the data also suggests two other possibilities if, as I suspect, the death penalty is really a low salience issue about which most people only reflect sporadically. The survey followed hard on Gov. Gavin's announcement there would be no executions during his term. It's just possible that leadership is efficacious here. New Governor Newsom is probably riding as high in civic esteem as he ever will as he begins his term; at least for the moment, perhaps he has broken through our inattention.

Moreover, the same survey shows opposition to the death penalty becoming a more partisan issue. Seventy-six percent of Democrats oppose executions, while 64 percent of Republicans support the penalty. Since Republicans are a vanishing species these days in the state, partisanship is lending anti-execution campaigns a boost.

Newsom has declared a moratorium, but the death penalty can only be ended legally by popular vote. Perhaps state Democratic legislators will dare take the death penalty to the voters in 2020 when Democratic turnout is likely to be off the charts?

Newsom's bet for life

Congratulations to all the dedicated advocates who have worked for decades to end the death penalty in California, especially Death Penalty Focus and the ACLU. Gov. Gavin's moratorium certainly isn't the last word; there will be lawsuits trying to ensure the state kills more people. This remains a terrible way to get to this end -- through invocation of unchecked executive authority. We've seen that sort of move often enough and many of us didn't like it.

But for the moment, our 737 death row inmates won't have to face execution; a handful of vengeful county prosecutors can try to add to their number with new death convictions, but they are going to look like the terrible spendthrifts these officials are when they commit tax dollars to winning something unlikely ever to happen.

It's worth reflecting on why it has been so hard to get to this point. I bring to this the experience of working to replace the death penalty with sentences of life without parole by initiative in 2012. We fell two percentages points short; the state's tussle over permitting executions ground on and on.

California's death penalty law was put in place by a voter initiative in 1978; it can only be altered by another statewide popular vote. The legislature can't end death sentences, though it sure seems likely that the current majorities would repeal. (On the other hand, elected officials aren't heroes -- many probably like having this decision out of their hands.) Bob Egelko, who has been covering the issue for decades for the SF Chronicle, has assembled a thorough catalogue and discussion of Newsom's assertions in favor of his moratorium, all available at the link:

• Death penalty applied unfairly based on race;

• It is unfair to those with mental disability;

• Innocent people have been sentenced to death;

• The death penalty is expensive;

• It does not make communities safer;

• Most nations have dropped capital punishment.

Oddly, since Californians have continued to vote narrowly for the death penalty for a decade, what I learned in 2012 is that executions simply are NOT a high salience issue for voters. We haven't executed anyone since 2006 and it has long appeared that legal challenges meant we weren't likely to execute any of the current 737 condemned before they die of natural causes. The most common reminder of the death penalty for many of us would be a tiny news notice that yet another convict at San Quentin had died on the row.

There is a smallish fraction of us who are rabidly pro-death penalty -- perhaps 30 percent or less whose horror at vicious crimes seems to them to require social revenge killing. There is a similar size fraction, many religious, who experience the continuation of state-sponsored legal killing as morally barbarous.

But an awful lot of Californians don't think about the death penalty much, except when asked to vote on one of our occasional ballot measures. None of the statewide measures voted on in recent years have been headline initiatives. Vast crowds of other, better funded, even more controversial, subjects have commanded higher profiles. The unconcerned middle hasn't really been forced to grapple with the issue. The California death penalty has been floating along on inertia and status quo bias for a while now.

Gov. Gavin has simply made the bet that the underlying stasis he's made more certain by the moratorium will not harm him instate -- while greatly enhancing his liberal reputation nationally. I suspect this is a winning bet.

Last rites for the condemned

This week the Supreme Court, by the grace of Justice "Balls and Strikes" Roberts, decided they should not make legal abortions completely unavailable in Louisiana. One can only be glad for this unexpected and probably momentary reprieve for women's freedom to control our bodies -- but the report of that case wasn't the Court action which took my breath away.

The conservative five (Roberts rejoining his team on this one) had also voted not to stay the execution of an Alabama death row prisoner, Domineque Ray, because he has waited too long to raise his issue. Justice Elena Kagan explained in dissent:

Under Alabama’s policy, Justice Kagan wrote, “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites.”

“But if an inmate practices a different religion — whether Islam, Judaism or any other — he may not die with a minister of his own faith by his side,” Justice Kagan wrote.

“That treatment goes against the Establishment Clause’s core principle of denominational neutrality,” she added, referring to the clause of the First Amendment that bars the government from favoring one religious denomination over another.

Seems kind of obvious, doesn't it? But apparently the obvious is not good enough when Alabama is set on death....

Anthony Ray Hinton survived nearly 30 years on Alabama's death row trying to convince a racist system that he had nothing to do with the murders for which he was convicted. At great length, and thanks to the Supreme Court on one of its better days, the work of Attorney Bryan Stevenson's Equal Justice Initiative (EJI) forced the state to exonerate him. He tells the story in The Sun Does Shine: How I Found Life and Freedom on Death Row.

The book is a true tale of horror: local white prosecutors, police, and lawyers needed someone to blame for two brutal murders; Hinton was quite simply the Negro they picked out to convict of crimes that were never really investigated. He had a strong alibi and no provable connection to the murders -- but he'd do as the scapegoat. And so off he was sent to death row at Holman Prison.

And once there, he learned to survive. He learned to survive by learning what the system that sent him away could never envision: that all men, even the many actual murderers who were his only companions, were "not the worst thing we had ever done."

He started a book club among the inmates. They read James Baldwin and Maya Angelou. They yelled to each through the bars. They banged on the bars for hours in acknowledgement when one of them was taken to his death.

Hinton made a friend, one Henry Hays, a white man. Gradually, he figured out that this Henry had been convicted for the 1981 lynching of a black boy in Mobile. (Stevenson's Legacy Museum labels this "the last lynching.") The two men could agree that they both wished their lives had been different. Hinton explains:

Sometimes you need to make a family where you find it, and I knew that to survive I had to make a family of these men and they had to make a family of me. ...

Henry Hays was executed during Hinton's long incarceration:

I could hear that Henry was crying, and my heart broke for him. In the end, none of it mattered. Who you were, what color your skin was, what you had done, whether you showed your victim compassion at the time of his death -- none of it mattered. There was no past and no future on the row. We had only the moment we were in, and when you tried to survive moment to moment, there wasn't the luxury of judgment. Henry was my friend. It wasn't complicated. I would show him compassion, because that is how I was raised ...

At a few minutes before midnight on June 5, I stood at the door of my cell. I took off my shoe, and I started banging on the bars and wire. I wanted Henry to hear me. I wanted him to know he wasn't alone. I knew when they shaved his head, and I knew when the generator kicked on. I banged louder, as did every guy up and down our tier and every tier. ...

One wonders, did the men bang the bars on last Thursday for Domineque Ray, the man the Supremes denied the comfort of the presence of his imam? One imagines they did. EJI makes a plausible claim that Ray's conviction should have been re-examined before the state could take his life -- but this was not to be....I read Anthony Ray Hinton's story in an audio edition. Highly recommended. This is not the downer you may fear.

A ghost unmasked and disempowered

The arrest of the East Area rapist who preyed upon women in the Sacramento area and parts south in the 1970s and early '80s plunges me into regretful memories.

A woman who I can call a significant acquaintance was one of his victims. She might have become a friend, but the trauma impelled her to flee the state. The crime to some extent derailed her life plans. She's now deceased, I think.

For years, atrocious crimes connected to this mysterious figure continued, and the authorities couldn't seem to do anything. He haunted women's bad dreams.

And now law enforcement has seized him, based on DNA evidence, probably available because of a 2004 state mandate we voted into law. One of the backers of that initiative is quoted at the arrest press conference:

“To the victims, sleep better tonight, he isn’t coming through the window ...”

I know just enough to know that was my friend's enduring nightmare ...

Assuming this nasty old man is the right guy, I'm grateful they finally got him.

And since the jurisdiction is Sacramento, one of the rare counties where this still happens, the local prosecutor will probably seek the death penalty. More killing won't help. Just lock him away!***To feel something of the particular horror this criminal inspired, read Michelle McNamara at the New Yorker.

We like to think this can't happen ...

but a death penalty case not getting the wide attention it deserves shows it still can.

Vicente Benavides Figueroa, a 68 year old former farmworker, has been warehoused on California's death row for 24 years. He was convicted in Kern County in 1993 of sodomizing and murdering a 21-month old child when his girl friend left him in charge of the little girl. The California Supreme Court just ruled that the evidence that that child had been molested was simply not true.

"The evidence now shown to be false was extensive, pervasive and impactful," Justice Carol A. Corrigan wrote for the court.

The jury in the case was told that the child's body showed damage to her anus.

Medical experts now attribute her injuries to repeated and failed efforts to insert an adult-sized catheter into her, rectal temperature taking, a paralytic medication and physical examination.

Nurse Anita Caraan Wafford, who helped treat Consuelo at the first hospital, declared that no one there noted any anal or vaginal trauma.

Dr. William A. Kennedy II, an expert in pediatric urology, said he believed "to a high degree of medical certainty" that Consuelo had not suffered anal or vaginal penetration.

The court could have reduced Benavides' conviction to second degree murder -- something killed the child on his watch -- but instead sent him back to Kern County for retrial.