by Stephen Rohde
When the story is told about how the death penalty was abolished in California, the work of a little-known legislative committee will deserve an entire chapter.
On June 23, after hearing public comments, the six-member Committee on Revision of the Penal Code voted unanimously to approve a staff report with the following enlightened conclusion: “Eliminating the death penalty is a critical step towards creating a fair and equitable justice system for all in California, as the ultimate punishment is plagued by legal, racial, bureaucratic, financial, geographic, and moral problems that have proven intractable.” According to committee chair Michael Romano, the report, which is subject to final editing, will be submitted to the California Senate and Assembly and made available to the public later this summer.
“The decision of this important committee and the detailed report it has approved will allow the legislature to take a serious look at our failed system and resolve to put an abolition measure on the ballot to end state killing once and for all,” said Mike Farrell, President of Death Penalty Focus, who spoke at the public hearing. The report is the most comprehensive study of the death penalty since the California Commission on the Fair Administration of Justice in 2008 found the capital punishment system “dysfunctional.”
The Committee on Revision of the Penal Code was created in late 2019 by the state Legislature to study California’s penal code and recommend reforms. Of the six members, four were appointed by Gov. Gavin Newsom (one seat is vacant at the moment); the other two were each appointed by the legislative body they represent in the Assembly and Senate.
The new report points out that much has changed since 2008. Today, a majority of states in the U.S. and the overwhelming majority of nations do not have the death penalty in law or practice. In 2019, Governor Gavin Newsom declared a moratorium on executions. More recently, he took the unprecedented step of filing an amicus brief in the California Supreme Court arguing that the death penalty is unconstitutional and is applied in a racially biased manner. District Attorneys in Los Angeles, Santa Clara, and other large California counties have openly declared they will not seek the death penalty. And a group of nearly 100 current and former elected prosecutors, Attorneys General, and law enforcement leaders recently issued a joint statement declaring that “[m]any have tried for over forty years to make America’s death penalty system just. Yet the reality is that our nation’s use of this sanction cannot be repaired, and should be ended.” The 37-page report, accompanied by an 18-page update, with over 350 detailed footnotes, is a catalog of the numerous flaws at every stage of the system, including potential legal infirmities, faulty jury instructions, and lack of proportionality review.
Finding that “capital punishment concentrates racial bias that pervades the entire criminal legal system,” the report presents appalling evidence that the application of California’s death penalty is racially and geographically biased. Tracing the racist roots of the death penalty to “America’s history of racial violence against people of color, particularly the practice of lynching,” the report presents authoritative data confirming the racial disparities based on the race of the defendant and the race of the victim. For example, despite accounting for only 6.5 percent of California’s population, over one-third of people on death row are Black, and while Latinx people accounted for less than half of homicide arrests in the state between 2005 and 2019, all eight of the people sentenced to death in California in 2018 and 2019 were Latinx.
The report identifies several sources that contribute to racially biased practices and outcomes, including policing, broad prosecutorial discretion, and racially discriminatory jury selection practices. In a remarkable finding, the report cites research that when jurors do not fully understand confusing jury instructions, they are more likely to allow implicit bias to impact their decisions. This is exacerbated when prosecutors use racially coded language such as comparing Black defendants to animals, such as a “Bengal tiger.”
One of the most chilling sections of the report describes five cases in California where innocent men on death row were eventually fully exonerated and released. Ominously, the report cites evidence that “serious questions have been raised about the innocence of people currently on California’s death row.” Since 1973, 185 people sentenced to death have been exonerated nationwide, with one research team from the University of Michigan estimating that at a minimum four percent of those sentenced to death were innocent. In California, that would mean there are at least 28 innocent people currently on death row.
In 2016, pro-death penalty advocates convinced California voters that Prop 66 would speed up executions and save taxpayers money. But the report documents the fact that “in reality little has changed since the passage of Proposition 66.” In fact, on the contrary, “costs are significantly greater at every stage of death penalty litigation,” including trial, appellate, federal habeas corpus, and prison costs. And under Prop 66, “the average time it takes for a capital case to proceed from a sentence of death to final resolution of habeas corpus proceedings has continued to increase,” from 12 years in 2008 to 17 years in 2015 to 20 years in 2020. “Despite arguments by proponents of Proposition 66 that the measure would ‘speed up’ death penalty appeals,” the report finds, “the new law has made post-conviction proceedings slower.”
The report concludes with the finding that “most sentences of death ultimately are reversed in California and throughout the United States.” In California, an astonishing 83 percent of capital cases have been reversed in state or federal court. Any system with such an appalling failure rate – let alone one leading to death at the hands of the state – should be ended immediately.
In recommending that California end the death penalty, the committee agreed with the American Law Institute that there are “intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
Pending the repeal of capital punishment, the committee recommends granting clemency to commute death sentences; settling pending legal challenges to capital sentences; recalling death sentences under the Penal Code; limiting the felony-murder special circumstances; restoring judicial discretion to dismiss special circumstances; amending the Racial Justice Act of 2020 to make it retroactive; and removing people who are permanently mentally incompetent from death row.
It is beyond question that the deadly experiment of capital punishment is fatally and irredeemably flawed. This report brings us closer to the day that this cruel, inhumane, racist, and barbaric form of punishment is abolished once and for all.
Stephen Rohde, an author, and social justice advocate, practiced civil rights and constitutional law for over 45 years, including representing two men on California’s death row. He is a board member of Death Penalty Focus.