In the Wake of Failed Prop 34, is Death Penalty Reform Likely?

Marin voters left no doubt how they felt about the death penalty in the Nov. 6 election.

In the county that is home to San Quentin State Prison, where all male death row inmates in California reside and where all executions are conducted, voters overwhelmingly backed Prop. 34, with 68 percent of the 85,516 votes cast in favor of the measure, which sought to replace the death penalty with life in prison without parole.

But voters statewide disagreed, and Prop 34 went down by a 53-47 percent margin.

So now what?

No death row inmate has been executed in California since early 2006, when a federal judge ordered a moratorium because of questions about the state’s lethal injection protocol. Meanwhile, 14 death row inmates have exhausted all of their appeals.

Although supporters and opponents of Prop 34 expectedly have different reactions to the outcome of the election, they agree that the existing system – whereby the state doesn't execute any prisoners but still spends $130 million a year on capital punishment, according to the nonpartisan Legislative Analyst's Office estimate – isn’t workable.

“What happened through this campaign was the whole conversation around the death penalty and life without the possibility of parole got redefined,” said Yes on 34 campaign consultant Steve Smith, a native of Kentfield. “What we have is a very divided state on this issue. We are now very interested in pursuing conversation about reform and absolutely expect to do that.”

Despite the electoral clear victory, No on 34 reps are also calling for reform.

“The defeat of Proposition 34 was an important victory for the cause of justice,” the anti-34 Criminal Justice Legal Foundation said in a statement Wednesday. “But the status quo is unacceptable.”

“This campaign has had the effect of raising the public consciousness about how much money is being wasted in the current system,” added the foundation’s legal director Kent Scheidegger, who credited the well-funded Yes on 34 for making the case about the system’s financial waste.

But not surprisingly, the two sides have very different idea on how reduce that waste.

Scheidegger said shortening the lengthy appeals process for death row inmates would go a long way to cutting down those costs. Smith disagreed.

“When you are dealing with the ultimate act, there is a lot of legal appeal to make damn sure that we aren’t going to execute by accident an innocent person,” Smith said. “Anytime you foreclose those appeal options, you run the risk of executing an innocent person. We absolutely know that there have been innocent people executed in this country.”

Scheidegger’s group also pointed to the possibility of long-delayed movement on the method by which California executes its death row inmates. Since February 2006, when U.S. District Court Judge Jeremy Fogel blocked the execution of convicted murderer Michael Morales because of compaints about the administration of lethal injections, no inmates have been executed.

The moratorium focused on the possibility that if the three-drug lethal injection procedure were administered incorrectly, it could lead to suffering for the condemned, potentially constituting cruel and unusual punishment. An injunction by the U.S. 9th Circuit Court of Appeals held that an execution could only be carried out by a medical technician legally authorized to administer intravenous medications, and the state was unable to bring on a licensed medical professional to carry out the executions as recommended.

Reform advocates have since focused on a move towards a single-drug method of executing condemned inmates, and in April, Gov. Jerry Brown ordered prison officials to consider that method. The shift was revealed in the state’s appeal of the moratorium filed by Attorney General Kamala D. Harris to counter a February ruling that halted a revised three-drug lethal injection method, according to the Los Angeles Times.

Scheiddegger suggested that the outcome of the election might spur the Brown administration to move ahead with that shift, and his foundation has suggested that Brown “put the new protocol into immediate effect while the lengthy regulation process is carried out.”

“Our goal is to make death row a lot smaller than it presently is,” Scheiddegger said.

Smith said that while 34’s proponents are open to reform, they aren’t entirely optimistic that it’s going to happen.

“So far no one has been able to fix a broken system and we are not convinced that it is in fact fixable,” he said.

What do you think? Should — and can — the death penalty system in California be reformed? Add a comment below.