Californians voted against a measure on Tuesday that would have repealed the death penalty and retroactively sentenced 726 inmates on death row to life imprisonment without parole. Though polls leading up to the election had found increasing support for the initiative, with some even showing a plurality favoring it, voters rejected it by about 6 percentage points. The editors of the Los Angeles Times speculate that there was a kind of “Bradley Effect” at work, where people are disinclined to tell pollsters they support the death penalty, but “once in the voting booth, the bile takes over.” (The Times editorial board regards those who favor capital punishment as lagging behind “the tide of history.”)
It’s hard to discern the tide of history in the trend line on national public opinion regarding the death penalty, which shows support for it falling from a peak in the late ’80s and early ’90s to about the same level it was in 1936. However, in recent years, according to California’s Field Poll, perceptions of the costs of incarceration relative to the death penalty have markedly changed in the state. Fifty-three percent of likely voters now believe the death penalty is more expensive than life imprisonment, up from 26 percent in 1989. Interestingly, proponents of Proposition 34 made their argument largely on fiscal grounds. According to the the AP:
Supporters had pointed to an influential study published by a federal appeals court judge and law professor that concluded California has spent $4 billion to carry out just 13 executions and cover other death penalty costs since capital punishment was reinstated in 1978.
The ballot language stated that abolishing capital punishment would result in a “savings of about $130 million annually within a few years.” A large chunk of that savings, about $50 million a year according to the Legislative Analyst’s report, would come from litigation costs associated with the lengthy appeals process.
Opponents of Prop. 34 insisted these savings were illusory and blamed the state and the courts for refusing to streamline the process. Since 2006, when a federal judge found that California’s lethal-injection method constituted “cruel and unusual punishment,” the death penalty has been effectively suspended during an ongoing legal battle:
In the years since, the California Department of Corrections and Rehabilitation (CDCR) has made moves to change the execution process. It invested in a new $835,000 lethal injection chamber and rewrote its lethal injection procedure. Now an attendant must shake the inmate to ensure that he or she is asleep before proceeding with painful, death-inducing drugs.
Yet, two years later, executions have not resumed.
A Superior Court judge in Marin County — where San Quentin prison is located and the state’s Death Row for male inmates — threw out the rewritten lethal injection protocols, saying that the state violated its own rule-writing procedure by not adequately considering public comment. The federal court case that originally halted executions in the state is on hold while the state case gets sorted out.
Meanwhile, California doesn’t keep sufficient stocks of the execution drugs its current protocol requires. Two of three of the lethal injection drugs called for in the current protocol are no longer available in the United States.
No doubt California’s newly elected Democratic supermajority will sort this out in short order.