Fifty years ago this month, on February 18, 1972, California abolished the death penalty. But it didn’t stay abolished. The lesson for us is that we have two tasks: abolish the death penalty, and keep it abolished.
A Powerful Attack on the Death Penalty
The California Supreme Court ruled, by a 6-1 vote, that the death penalty violated the state Constitution, which prohibits “cruel or unusual punishments.” The court said the death penalty was both cruel and unusual. The court concluded, “[C]apital punishment is impermissibly cruel. It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.”
The state supreme court in 1972 was seven white men. The youngest was 59. (The first female justice, Rose Bird, would arrive five years later.) The powerful majority opinion against the death penalty was written by Chief Justice Donald Wright, a Republican appointed by Governor Ronald Reagan. The decision came in the case of Robert Anderson, convicted of a murder during a robbery in San Diego, but it applied to all cases throughout the state.
The Backlash
Within hours of the decision, Governor Reagan announced his support for an initiative to amend the California Constitution to say that the court was wrong, that the death penalty is neither cruel nor unusual, so the state Constitution permits it. The voters approved the constitutional amendment, Proposition 17, in the November 1972 election.
The 1973 Legislature, with Democrats in the majority, passed a new death penalty law. The 1977 Legislature, again with Democrats in the majority, passed another new death penalty law, this one by a two-thirds vote to override Governor Jerry Brown’s veto. Voters replaced the 1977 law with a much broader one, Proposition 7 of 1978.
We have lived with and killed with the 1978 law ever since. Since 1972, we’ve spent at least $5 billion in taxpayers’ money litigating death penalty cases. California juries have returned over 1000 death verdicts. We have killed 13 men.
More Cruel and More Unusual Today than 50 Years Ago
Has our $5 billion proven the supreme court wrong? Just the opposite. It has proven them right. The problems with the death penalty today are the same ones the supreme court identified 50 years ago — except they’re worse.
The court in 1972 said the issue was urgent because there were far more people on death row than ever before: more than 100! That number peaked a few years ago at about 750, and it is at 694 today.
The supreme court said, “The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution,” which “is often so degrading and brutalizing to the human spirit as to constitute psychological torture.” The median time prisoners had spent under these cruel conditions, the court noted, was more than 20 months. A few had been on death row for seven or eight years. In 2022, the median time under California death sentence is over 22 years. More than 100 have been on death row for more than 30 years.
In 1972, the supreme court said the death penalty was “unusual” because nine states and 39 countries had abolished it, and many others had it but didn’t use it. Today it is far more unusual, for 23 states and more than 100 countries have abolished it, and many others have it but don’t use it.
So, where is the state supreme court today?
The State Supreme Court, 50 Years Later
The court no doubt was surprised and frustrated that the voters rejected their well-reasoned opinion in the 1972 election. Then in 1986, conservative groups with other agendas — environmental, labor, and the like — used the death penalty as a wedge issue to remove Justices Rose Bird, Cruz Reynoso, and Joseph Grodin in a yes-no retention election.
In the years since, the court has upheld the vast majority of the death sentences it has considered individually, and it has turned away several opportunities to confront the death penalty more generally. Last year the court rejected an argument that the same rule of unanimity and proof beyond a reasonable doubt that juries use to decide whether a defendant is guilty should also apply to the decision whether he lives or dies. Ruling the other way would have called into question many death sentences. The court’s tolerance for racial discrimination in selecting jurors is extraordinary; to do otherwise would call into question many death sentences. The court has refused to give full consideration to powerful evidence that California’s categories of death-eligible murders are too broad and equally strong evidence that, among those sentenced to death, it is completely arbitrary and random which ones live and which ones die.
But nationally, Anderson is not an outlier. Since 1972, six other state supreme courts have concluded that the death penalty as it is applied violates their state constitutions: Connecticut, Delaware, Massachusetts (twice), New York, Oregon, and Washington. The courts in Massachusetts and Oregon did so even though the voters of those states, like the California voters in 1972, passed state constitutional amendments that seemed to entrench the death penalty in state law forever.
This Time, Keep It Abolished
No matter how we end the California death penalty this time around – all at once as in 1972, or a few prisoners at a time — our second task is to keep it abolished. This second task must inform our strategy. For instance, we must recognize that for many Californians, even if not for us, abolition of the death penalty is not acceptable unless sentences of life without parole are available.
There is reason for optimism. Organized opposition to the death penalty is much stronger than it was in 1972. Many more elected officials oppose the death penalty than 50 years ago. Recent laws attack the death penalty incrementally, for instance, narrowing the felony-murder rule and the anti-gang laws. So does the California Racial Justice Act adopted in 2020. The Commission on the Fair Administration of Justice in 2008 and the Committee on Revision of the Penal Code last year have laid out the path to abolition – and the reasons to follow that path — in detail. A California without the death penalty is easier for people to comprehend today than it was in 1972.
Eleven states have abolished the death penalty in the 21st century. Supporters of the death penalty have tried to bring it back in some of those states, but with little success.
The second time California abolishes the death penalty, we should be prepared for a backlash, as there was in 1972. But we have the power — and the responsibility — to make that backlash fail.
Bob Bacon practices law in Oakland. He has represented clients under California death sentence on appeal and habeas corpus since 1990. Prior to 1990, he was a court manager and then a prosecutor. He is a graduate of Stanford University and King Hall School of Law at UC Davis. He is a long-time member of DPF.
