by Eric Moon

[dropcap]O[/dropcap]n Tuesday, November 6, California voters may make history, as we try with Proposition 34 to repeal our state’s death penalty. Two-thirds of the planet’s nations, and 17 U.S. states and the District of Columbia, have already abandoned executions, but ours would be an abolition by the voters ourselves, not a governor or legislature.
The background for this historical challenge dates back to 1978, and that era’s Proposition 7, when California voters brought back the death penalty — California and the U.S. Supreme Court having declared it unconstitutional by 1972.
The death penalty established by the state’s voters in 1978 was intended for only the most “heinous” of homicides — with “heinousness” to be determined by a jury on the basis of one or more “special circumstances” (aggravating factors).
Some of these special circumstances — the list has now grown to 28 — went to motive (e.g., for financial gain); to method (e.g., poison or explosive device); or to status of the deceased (e.g., law enforcement officer, juror).
Under Proposition 7, if jurors find a defendant guilty of first-degree murder and, in a second phase of trial, of one or more special circumstances, a third phase of trial ensues, the “penalty phase.”  This third stage considers whether execution or life without possibility of parole (LWOP) would be the appropriate sentence.

730 Prisoners on Death Rows in California Since 1978

Given such careful deliberations, you might think we would have under-used, rather than over-used, the gallows; but since 1978 California has accumulated 730 prisoners on our death rows — San Quentin, and its sister facility in Chowchilla with 18 women. We have executed 13 (plus one more killed by Missouri for California crimes).
By approving Proposition 7, we locked in executions, and only another vote of the voters can unlock it. Executions, and death penalty legislation, have always made for very good politics, inviting governors and legislators to compete as “tough on crime.” (Two of those who milked the issue in 1978 — campaign manager Ron Briggs, and prosecutor Don Heller — are now among the voices supporting repeal.)
Work by the American Friends Service Committee on the death penalty also dates back decades, rooted in Quaker opposition lobbied as early as the 1840s. When we invested a full-time staff position into death penalty abolition, in 1997, we chose to work primarily with churches and other faith communities, most of whom had already passed formal resolutions for abolition but were making little progress on those resolves.
Although acknowledging other reasons for opposition to executions, we tried to highlight the spiritual meaning of killing prisoners — across a range of faith traditions.
One measure of our success in that direction is that prosecutors nationwide are now reluctant to accept onto capital juries (those considering a death penalty) anyone who admits to weekly participation in any religious group.
In New Mexico, before the death penalty was abolished there, Quakers, Jews, and Catholics brought a First Amendment lawsuit challenging their systematic and explicit exclusion — for reasons of religious identity — from jury pools.
Two years ago, when California death penalty activists including the ACLU and Death Penalty Focus, met to consider the way forward, they chose to move in another direction. Okay, we’ve got the religious types, now how do we get the others to oppose executions?
Looking ahead to the 2012 elections, when President Obama’s candidacy might again draw record numbers of Democrats, how can we appeal to voters to repeal the death penalty — without requiring a change of heart and values regarding punishment generally? How can we persuade the unpersuaded to vote against this icon of stereotypical justice?

A stark look at California’s lethal injections. Voters may decide executions are a form of cruel and unusual punishment. But is life without parole any less cruel?


A Calculated Appeal to Social Conservatives

Supported by deep-pockets donors — Prop 34 finances have now risen past $5 million — they used focus groups to craft a repeal campaign that could appeal to social conservatives.
Capital prosecutions are financially wasteful, and the majority of that expense accrues before sentence is ever passed. This waste — attorneys call it “gold-plating” — happens as prosecution and defense compete to show extraordinary effort (and expense) to prevail, so that the decision can’t be overturned later.
Each capital case can cost a million dollars more than a non-death-penalty homicide prosecution (e.g., 35 years to life sentence). So if we didn’t waste that money on capital prosecutions, so the thinking goes, we could spend more on law enforcement, specifically on research into “cold cases,” homicides and rapes abandoned for lack of resources. This idea appealed to Colorado voters several elections ago, and it got included in Prop 34.
Another argument is designed to undercut the widespread illusion that we have to keep killing prisoners since we have promised the families of their victims some “closure.” This illusion shatters upon a little fact, namely, that fewer than 2 percent of homicides result in death penalties, so a vast majority of grieving families are never afforded this kind of “closure.”
But Prop 34 ads will also feature families and friends of homicide victims, explaining how death penalty case notoriety and recurring media attention work against psychological healing.
One other argument goes to the increasing public awareness of wrongful convictions, as 300 prisoners have now been exonerated and freed, nationwide, their guilt or the fairness of their trials in preponderant doubt. These 300, for whom DNA or other new technologies provided new evidence, suggest a much larger problem: how many more will remain behind bars, for whom DNA evidence and dedicated appeals attorneys are not available? And given the sheer size of California’s death row, some of ours are, inevitably, wrongfuls.
Despite the professional campaign consultants and their focus groups, despite these arguments, polling numbers indicate that a majority of “likely voters” may still vote for their illusions about death row prisoners, their crimes, and their “dangerousness.”
“Yes on 34” activists are phone-banking, and religious leaders are running newspaper ads, to present a more accurate picture, but the outcome is far from certain. We may decide, with two-thirds of the world’s nations, that — as one of our bumper stickers  has it— “The Death Penalty: We Can Live Without It.”
Sooner or later, we will. Executions are a practice that even conservative Supreme Court judges have agreed is subject to evolving cultural standards. Once every decade or so, the Supremes reconsider the issue. Has public opinion about the death penalty now so changed, as to render it “cruel and unusual punishment” forbidden by the 8th Amendment?
When they next consider that, the outcome of the election on November 6 in California will be part of their discussion.