The death penalty in California is dead! Long live the death penalty!
That lede isn’t a joke. Nor a contradiction. In California, the death penalty has long existed simultaneously as grave problem and necessary tool.
So if Governor Gavin Newsom’s moratorium on the death penalty becomes a permanent ban, we Californians should celebrate the end of a policy that magnified our society’s worst disparities and created the risk of putting an innocent person to death.
But we all, death penalty proponents and opponents alike, also might pause to mourn the demise of this miserable practice. For the death penalty has provided an essential public service—shining light into the darkness of California’s prison system—that we may miss once it’s gone.
Let’s start with a stipulation: since its revival in California in 1978, the death penalty has never been about killing large numbers of people. Californians have executed 13 people in the past 40 years. More Californians than that die in traffic accidents over a holiday weekend.
California’s death penalty was at its heart an expression of frustration at violent crime and a commitment to supporting crime victims. The death penalty also was an enormous headache for the criminal justice system, since capital cases consumed resources and slowed the courts with endless appeals. These costs are why so many within that system wanted to do away with the death penalty.
But these same costs are also why the death penalty had real value for the state.
California’s prison system, because it exists in the dark, is scandal.
A powerful prison guards’ union effectively runs the show, soaking up billions in state dollars for their compensation that should go to higher education or infrastructure. For decades, the system was unconstitutionally overcrowded, with health care that failed to meet basic standards. The state refused to fix these problems until the federal courts intervened.
In this context, the death penalty was vital because it provided one of the few sources of accountability, and attention, for the prison system. Californians happily locked up people with life sentences and forgot about them, but death penalty cases couldn’t be so easily ignored.
The media is more likely to cover death penalty cases, scrutinizing all aspects of the criminal justice process. Celebrities love opposing the death penalty; you could cast 10 Oscar-winning films with just the actors advocating for Kevin Cooper, the state’s most high-profile death-row inmate.
The death penalty also commands official attention. Governors can’t avoid reckoning with death penalty cases. Some of the state’s best attorneys work on death penalty appeals, many pro bono. And the justices of the California Supreme Court must review all death sentences.
Forcing our state’s most powerful minds to examine the details of cases has brought to light any number of abuses of the system, and raised questions about the prisons themselves. And in the last few years, those questions have forced policymakers and voters to reconsider some criminal justice policies, particularly around sentencing. Would California now be reforming sentencing and other criminal justice procedures without the spotlight provided by the machinery of death?
There is another group of people who appreciate the death penalty’s value: those 730-plus Californians who sit on death row at San Quentin. Twice in the past decade, ballot initiatives asked California voters to end the death penalty. In both campaigns, a significant number of death-row prisoners took an improbable stand against the initiatives that would end their own death sentences.
Why? Because their death sentences conferred special resources—including guaranteed attorneys for appeals and federal court reviews— that allowed them to fight their convictions. If the death penalty went away, death-row inmates could become just 737 more forgotten lifers.
California hasn’t executed anyone since 2006, when the state Supreme Court questioned the constitutionality of lethal injections. This is not a popular opinion, but I would argue that for the last 13 years California has achieved the perfect death penalty equilibrium. Our state has capital punishment on the books, which provides the aforementioned accountability and represents the views of Californians who support the death penalty. But California no longer actually executes anyone, thus acknowledging the problems of state-sanctioned killing.
In other words, we have had it both ways.
Unfortunately, the governor’s moratorium disturbs that death penalty equilibrium. Newsom’s effort could spark a backlash that forces the state to start executing people again. And even if the governor succeeds in creating a permanent ban, Californians will lose the scrutiny that the death penalty brings to criminal justice, and we seem unlikely to find some other mechanism to replace it. While killing capital punishment may make us feel better about ourselves, it won’t necessarily make life in our prisons any better.
RIP, California death penalty. And thank you for your service.
Joe Mathews writes the Connecting California column for Zócalo Public Square.