The Death Penalty Won Big on Election Day, But the Devil Is In the Details

Even as the country moves steadily away from capital punishment, three states had the issue on the ballot this week.

A guard stands watch over the east block of death row at San Quentin State Prison Tuesday, Aug. 16, 2016, in San Quentin, Calif. A pair of November ballot measures will decide the future of the death penalty in California. As of Aug. 1, 2016, there were 700 condemned inmates at the prison. (AP Photo/Eric Risberg) Photo: Eric Risberg/AP Images

As it became increasingly clear that Donald Trump was about to win the presidency on Tuesday night, mental health staff were on call at San Quentin Prison and at the Central California Women’s Facility, where anxiety was running high over a separate election result. By the next day the men and women on death row would know whether Californians had voted to spare their lives — by passing Proposition 62, abolishing the death penalty — or hasten their deaths, by passing Proposition 66, aimed to quicken executions. “They are understandably concerned,” California Department of Corrections and Rehabilitation spokesperson Terry Thornton told me earlier that day, pointing out that many are already under treatment for mental illness. The results of the ballot initiatives “could be destabilizing.”

It’s hard to imagine a place more heavily monitored than California’s death row, where isolation, strip-searches, and suicide watch are a fact of life. Yet CDCR counts 25 suicides among the condemned since 1978, the year a ballot initiative dramatically expanded the crimes punishable by execution in California. With the same people responsible for that initiative now campaigning against the death penalty, no one had more at stake in their success on Election Day than the nearly 750 people facing execution in California.

The outcome was as bad as they feared. Prop 62 failed, with Yes votes reaching just 46.1 percent, versus 53.9 percent voting No. Meanwhile, the pro-death penalty Prop 66 got barely enough support to pass, 50.9-49.1. The razor thin margin technically means that Prop 66 remains a “close contest,” as designated by the California secretary of state; the outcome could change as provisional and vote-by-mail ballots are tallied. But the votes required make the prospect unlikely. A spokesperson for the secretary of state declined to discuss it. “We will certify the election results on December 16,” he said on Wednesday.

Anti-death penalty activists conceded defeat on Wednesday, reiterating the flawed provisions of Prop 66. “Poorly written initiatives often end up mired in costly and protracted litigation in California,” wrote ACLU lawyer Ana Zamora, who led the No on 66 campaign. In fact, multiple legal challenges have already been filed to block the measure. A lawsuit brought Wednesday by former California Attorney General John Van de Kamp and Ron Briggs — whose father led the fight to pass the state’s 1978 death penalty law — called on the California Supreme Court to nullify Prop 66, arguing that it “illegally interferes with the jurisdiction of California’s state courts,” while undermining the habeas rights of the condemned. Indeed, as many have long argued about Prop 66, for all its promises to speed up the death penalty, it is unlikely to lead to executions anytime soon. With its myriad, confusing provisions, the initiative will face lawsuits for months and even years. In its post-Election Day email, the Yes on 62 campaign assured supporters that Prop 66 “presents constitutional and practical questions that make its implementation uncertain.”

Grim Results in Nebraska and Oklahoma

The vote in California was a harsh blow for anti-death penalty activists, the second time in four years they have failed to pass a ballot measure to abolish capital punishment. Prop 62 fared worse, in fact, than Prop 34, a similar measure defeated in 2012. As polls suggested, it is possible some Californians voted for both Prop 62 and Prop 66, either out of confusion or to express a common sentiment: that the dormant, costly death penalty must be fixed or abolished. Yet California was not the only state to vote in favor of the death penalty on Election Day. Even as the country moves steadily away from capital punishment year after year — with executions and new death sentences consistently dropping — two other states had the issue on the ballot on Election Day — and in both of those states, death won.

In Nebraska, thanks to the deep pockets of its pro-death penalty governor, voters overturned a historic ban on capital punishment – a painful defeat for activists, legislators, and relatives of murder victims who fought hard to pass the legislation just last year. The law marked a significant victory for abolitionists in the deep red state, surviving a veto by Gov. Pete Ricketts. Indeed, it would likely have remained intact were it not for Ricketts: No sooner did the law pass than the governor immediately poured his own money into a ballot initiative to overturn the abolition law. With capital punishment consistently enjoying popular support even in non-death penalty states, it came as little surprise that Nebraskans would take the chance to bring it back. The breakdown in the end: 59.6 in favor of repealing the abolition law.

Less high-stakes — if somewhat more mind-boggling — was a measure that passed in Oklahoma, a state that has become synonymous with death penalty dysfunction in recent years. Despite flimsy convictions, botched executions, and shocking levels of incompetence and deceit among officials carrying out capital punishment, Oklahomans still overwhelmingly passed State Question 776, which enshrines the death penalty in their state constitution. The new amendment explicitly states that, regardless of execution method, the death penalty itself “shall not be deemed to be or constitute the infliction of cruel or unusual punishment” in Oklahoma. The practical reach of such language is limited, since it has no power where federal courts are concerned. In fact, the Tulsa World, whose editorial board pushed the execution of the likely innocent Richard Glossip, called on voters to reject the measure, calling it a “dang right!” proposition that merely reiterated powers state lawmakers already have. Nevertheless, voters eagerly passed SQ 776.

As in California, the measures in Nebraska and Oklahoma do not necessarily mean an imminent return to executions. Both states have notoriously struggled to find execution drugs, a problem that persists nationwide. Still, the pro-death penalty votes on Election Day were incomprehensible to Crystal Martinez, who lives in Modesto, California, and who calls Richard Glossip a friend. Martinez was at the Oklahoma State Penitentiary last year, ready to witness his execution, when he received his 11-hour stay upon the discovery that the state had the wrong drugs on hand. More recently, Martinez campaigned for abolition at home. “I was really optimistic for Prop 62 to abolish the death penalty in California,” she said, “but as long as Prop 66 failed, I would have considered it a victory. For people to vote to not only to keep but to streamline the death penalty — I never expected that in California.” The continued appetite for executions in Oklahoma struck her as disturbing too, having been so close to a case that embodies the death penalty’s most dangerous flaws. “Richard represents Oklahoma’s death penalty now,” she said. “It is absolutely shocking that anybody is voting in favor of it.”

A Few Bright Spots

It may seem fitting that the same election that delivered a demagogue to the White House would be marked by enthusiasm for executions. As the controversy over the Central Park Five reminded us, Trump’s law-and-order rhetoric exploited the same racist fears that have kept the death penalty alive for generations. Yet the ballot results favoring capital punishment stood in sharp contrast to a slew of different victories for criminal justice reform – including in some of the same states that upheld the death penalty. In California, for example, voters decriminalized marijuana – one of several successful initiatives to relax policies around pot – while also passing Proposition 57 by a wide margin – a big victory for parole reform as well as for juvenile defendants. More jarring still, Oklahoma voters passed a measure to reduce several low-level felonies to misdemeanors, while also voting to use the money saved by the state as a result to fund drug and mental health treatment. Several other states across the country saw much good news for criminal justice reform.

There are a number of potential explanations for why abolition might have failed where other reforms succeeded. In the broad realm of criminal justice policy, Americans’ feelings on the issue are uniquely emotional and complex. Yet while November 8 was certainly a good day for the death penalty, there was not a total disconnect between the reforms that passed and the stubborn support for executions in California, Nebraska, and Oklahoma. Election Day saw a wave of critical victories among prosecutors who promised reform – a trend that should make abolitionists optimistic. In Texas, Harris County District Attorney Devon Anderson lost re-election to such a candidate – the first Democrat to be elected DA in almost 40 years. As my colleague Jordan Smith points out, Anderson attracted controversy for conduct in some high-profile capital cases: “She refused to grant a new punishment hearing to Duane Buck, whose death penalty trial was tainted by racially biased testimony, and declined to do anything to address prosecutorial misconduct in the wrongful conviction of another death penalty defendant.”

There were similar results in other jurisdictions – and not just on Election Day. In Jacksonville, Florida, notorious DA Angela Corey was ousted in the primary, having been widely criticized for such callous actions as insisting on seeking a death sentence in a case where victims’ relatives adamantly opposed it. Writing on his Twitter account, Death Penalty Information Center Executive Director Robert Dunhum cited several other Election Day races in which prosecutors were “perceived as too aggressively pursuing the death penalty.”

As ballots continued to be counted in California on Friday, death row remained under watch by nurses and counselors. Although the CDCR’s Thornton reported no reported incidents on death row following the victory of Prop 66, she said there was “an increased presence of mental health staff,” which would continue through the weekend. As for the new tasks demanded by Prop 66 – including possibly transferring people from death row to other state facilities – Thornton said no changes are underway as of yet. “If it is certified as being passed, the department will comply with the requirements,” she said.

Whatever the future of the death penalty in California, for now it is alive, if not well. On January 17 — just days before Donald Trump’s inauguration — the state will mark its 11th year without an execution. With the legal fight over Prop 66 bound to last a long time, California’s death row population will remain old and infirm, an increasingly accurate picture of what one judge has re-labeled capital punishment in California: “Life in prison, with the remote possibility of death.”

Top photo: A guard stands watch over the east block of death row at San Quentin State Prison on Aug. 16, 2016, in San Quentin, California.

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