Joseph P. Williams

/ Legal Issue 2017

Proponents call it just punishment for the worst of the worst—men and women whose criminal acts were so heinous, atrocious, or cruel that 12 jurors and a judge agree they’ve forfeited their right to live. Opponents say it’s state-sanctioned murder that delivers retribution instead of justice, harms black defendants more than whites, and sticks taxpayers with an eight-figure bill for every person sent to the death chamber.

Yet both sides of the heated, emotional debate agree: the death penalty, arguably the most divisive issue in the county’s criminal justice system, could be headed for its last rites, condemned by an organized opposition, rising public opposition, and a series of botched executions that resurrected Constitution-level questions about cruel and unusual punishment.

In November’s general election, residents of four states voted on referendums that ranged from enshrining the death penalty in its constitution (Oklahoma) to banning it outright (Nebraska). California, considered a national harbinger on the issue, asked voters if the Golden State should mend it—lift a decadeslong moratorium on executions and streamline death-sentence appeals—or end it by closing the death chamber for good. They embraced the former and rejected the latter.

“I have as much confidence as  anyone that the death penalty is on its way out,” says Evan Mandery, a professor and chair of the Department of Criminal Justice at City University of New York’s John Jay College of Law. “It’s just a question of how long it’s going to take.”

But a divided electorate, along  with pushback from prosecutors and victims’ rights advocates could keep capital punishment from going the way of public hangings and firing squads. Proponents argue the death chamber is an irreplaceable sentence for intolerable crimes like child murders and cop killings, and Republican-dominated, law-and-order legislatures in the South and Southwest overwhelmingly agree with them.

Michael Ramos, a San Bernardino County prosecutor and chair of the National District Attorneys Association, argues that those who want to eliminate the death sentence are pushing the criminal justice system towards a slippery slope.

“There’s a trend. And people are watching,” says Ramos. The opposition’s plan is obvious, he says: flip California, the nation’s most populous state, and other capital punishment states will fall like dominoes, undermining justice in the process.

“Make no mistake, there is a blueprint in place: ‘if we can get the death penalty removed, then we can go after it in another state,’” he says, describing his view of organizations who want to shelve the practice. “They’re going after the death

penalty in America, [and] if you look at prison reform, they’re looking at getting rid of life without parole,” an invitation, he adds, to Charles Manson-style mayhem and endless suffering for victims who won’t get the justice they deserve.

Resurrected by a Supreme Court ruling in 1976, 34 states adopted the death penalty, but in recent years, five states—New Mexico, Illinois, Connecticut, Maryland, and Nebraska—have abolished it, opting instead for a sentence of life imprisonment without parole; other states, like California, have declared moratoriums on executions.

Of those that continue the practice, more than a third of the states are in the South: in the 40 years since its reinstatement, Texas has executed 538 death-row inmates, the most in the nation by far, followed by Oklahoma (112) and Virginia (111).

Since 1976, meanwhile, the ACLU and other civil liberties organizations repeatedly argued in court that the death penalty doesn’t pass Constitutional bans on cruel and unusual punishment. Multiple studies have found that the poor and African-American defendants are far more likely than whites to get a death sentence in a capital case. Using DNA evidence, the Innocence Project found an alarming number of death-row convicts were wrongfully convicted, and Illinois put executions on hold after investigative journalists found widespread malpractice in death-penalty cases: police running roughshod over defendants’ rights, inept defense lawyers nodding off during trials, and prosecutors and judges cutting corners to win convictions.

"Make no mistake, there is a blueprint in place: ‘if we can get the death penalty removed, then we can go after it in another state.’" Michael Ramos, San Bernardino County Prosecutor and Chair of the National District Attorneys Association

“The widespread perception is that criminal justice in the United States is broken,” says Mandery. “My guess is DNA exonerations changed the discussion. But of course that intersects with racism, too, right? Exoneration correlates with race—it’s poor black men” who are being condemned to death, largely for killing whites.

Meanwhile, celebrities like Danny Glover and Elvis Costello, along with Pope Francis, Sister Helen Prejean, and other high-profile religious figures have spoken out against capital punishment. And groups like the Death Penalty Information Center are highlighting testimonials from people like Ronald Carlson of Fort Worth, Texas, who said his experience with eye-for-an-eye justice was cold comfort at best.

Witnessing the 1998 execution of the man who killed his sister, Carlson wrote in a recent editorial, “left me with horror and emptiness, confirming what I had already come to realize: capital punishment only continues the violence that has a powerful, corrosive effect on society.”

The galvanized opposition has had an impact: a recent Pew Research Center poll found that, since it was reinstated in 1976, support for the death penalty has plunged to a fourdecade low of 49 percent, down by nearly half from 80 percent in 1995.

The nose-dive is “historic and eye-opening,” Mandery says. “Is it fast enough for abolitionists? No, but you’re coming from a high level of support. There’s a lot of correcting of miseducation [about capital punishment] that is to be done.”

Death-penalty opponents say that includes reversing the idea that executions are quick, ethical, painless, and humane. That view is vanishing quickly, especially now that states are having trouble finding the combination of drugs used to kill the condemned without brutality or suffering.

As states sought more compassionate alternatives to the gas chamber and the electric chair, the Supreme Court also approved a three-drug injection that knocked inmates unconscious, then stopped their hearts. But the pharmaceutical companies that manufactured sodium thiopental, a key anesthetic in lethal injections—many based in Europe, which largely views the death penalty as barbaric—stopped exporting it under pressure, and U.S. executions ground to a halt.

States determined to put convicts to death, however, found a workaround: new experimental drugs that were intended to mimic the three-drug cocktail. The disastrous results, however, gave death penalty opponents a fresh argument for ending the practice, and one execution in particular spoke loudest.

Sentenced to die for a 1998 kidnapping, rape, and murder—a crime spree so vile, one victim was still breathing as he buried her—Oklahoma inmate Clayton Lockett was strapped to a gurney and wheeled into the death chamber in April 2014. Lacking the approved execution cocktail, officials chose to kill Lockett with a lethal but untested drug protocol, developed in secret.

But as the chemicals entered his bloodstream, Lockett gasped for air and bucked in agony against the restraints, horrifying a panel convened to witness the execution. His graphic, involuntary struggle against death continued for several minutes until corrections officials, scrambling to end the macabre scene, shut the curtains to the viewing chamber.

Lockett, 38, eventually died of a massive heart attack, 45 minutes after a nurse inserted the executioner’s needle into his groin when they couldn’t find a useful vein in his arm. The grisly fiasco made international headlines, put Oklahoma officials on the defensive, and led to another Supreme Court cruel-and-unusual punishment challenge in a separate case, particularly after news surfaced of similar botched executions in Arizona, Alabama, and Georgia.

Finding a way around the drug  hortage has become “just such a hassle for states to deal with—they get so little bang for the buck,” Manderey says. “It’s very hard to find a humane way for the state to kill someone.”

Nevertheless, a sharply divided Supreme Court in June 2015 upheld Oklahoma’s use of the new drugs, voting 5–4 dismissing arguments that it violated the Eighth Amendment. And despite declining national support and Lockett’s horrible death, a slim majority of the public—49 percent—agrees with the death penalty. At the same time, the death penalty isn’t likely to disappear in the red-state South, where law-and-order Republicans hold legislative power.

In Florida, for example, Republican Governor Rick Scott and his allies have tried repeatedly to lower the bar for death penalty cases, most recently by enacting a law allowing 10 of 12 jurors to impose a death sentence, rather than requiring a unanimous verdict. The state Supreme Court struck down that law, which had been drafted after an earlier high court ruling found that judges had too much power in sentencing convicts to die for their crimes.

"The widespread perception is that criminal justice in the United States is broken." Evan Mandery, Professor and Chair of the Department of Criminal Justice at City University of New York's John Jay College of Law

Still, Ramos, the San Bernardino County prosecutor, and other proponents reject the racial-bias argument, insisting the punishment is meted out in a case-by-case basis. They view the botched executions as aberrations, but also point out that the victims of outrageous, unspeakable crimes suffered far worse. Others say the Bible is on their side, including R. Albert Mohler, resident of The Southern Baptist Theological Seminary, who calls capital punishment “an affirmation of human rights and human dignity” supported by scripture.

Anyone who takes a life “forfeits his own right to live,” Mohler wrote in a recent essay. “But the Bible is also very clear; and here the Old Testament is very specific. The evidentiary requirements, the requirement for the burden of proof by evidence for the application of the death penalty is very, very high—as it should be, as it must be.”

Amen, says Ramos, who was a driving force behind getting Proposition 66 on California’s ballot. The measure was designed to cut the length of time between an inmate's conviction and his or her final appeal, hastening the trip to the death chamber and saving taxpayers millions of dollars.

Although California has the most inmates on death row, it takes about 15 years for a convict’s appeals to be exhausted. The state hasn’t executed anyone since 2006 and only 13 people since 1976, but a recent study found that it spent roughly $306 million for each one, including appellate, legal, and administrative costs.

Ramos agrees the system is broken, but in a way that punishes victims, not perpetrators.

“It hurts families that suffered crimes against their loved ones,” Ramos says, arguing that three hots-and-a-cot (an exercise yard, TV, and free lifetime health care)—even behind bars—is too good for depraved, ruthless criminals. “Cop killers, killers of children, serial killers, rapists: these are people for whom justice equals the death penalty,” he says.

Ramos describes how he won a capital-murder conviction against Keith Taylor, an ex-con who stabbed and strangled Marilyn Mishak, a mentally disabled 33-year-old woman, while out on parole. Ramos says the victim’s father, who discovered her body inside her apartment, wanted vengeance so badly that authorities put metal detectors outside the courtroom to keep him from smuggling in a gun.

“I made a commitment to Mr. Meshak: ‘Let the system do its job. We will get justice for you,’” says Ramos, noting Taylor is still on California’s death row. “The last thing I want to do is call Mr. Meshak and tell him we got rid of the death penalty. That would just be horrendous. There’s no justice there.”