Death penalty was wrong but still had some uses

The Fresno Bee (Sunday) - - Opinion - BY JOE MATHEWS Spe­cial to The Bee Joe Mathews writes the Con­nect­ing Cal­i­for­nia col­umn for Zócalo Pub­lic Square.

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 a grave prob­lem and nec­es­sary tool.

So if Gov. 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 deathrow 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.

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