Californians Again Consider the Death Penalty, This Time in Proposition 34

San Quentin Prison has housed California's only death row for male inmates since 1937. (Michael Glogowski-Walldorf: Flickr)

San Quentin Prison has housed California's only death row for male inmates since 1937. (Michael Glogowski-Walldorf: Flickr)

In February of 1960, Gov. Pat Brown had a tough decision to make. His office was being flooded by clemency appeals for death row inmate Carryl Chessman. Convicted of kidnapping, robbery and rape, Chessman maintained his innocence.

“Well I don’t know if I ever had hope,” Chessman said in an interview then. “It’s like a soldier out in the field, the battlefield. I don’t know if he has hope or not; he just keeps slogging forward as much as possible and then waits for the results.”

Letters and calls poured into the governor’s office on Chessman’s behalf. As Pat Brown recalled in a 1986 KQED documentary, the most urgent appeal to stop the execution came from his own family.

“My son asked me to do it and said ‘Dad, this man didn’t kill anybody. I think you should commute it to life imprisonment,’” Brown said.

In 1972 the California Supreme Court declared the state’s death penalty unconstitutional. For the next 20 years, capital punishment bounced back and forth, with voters restoring it and then the courts striking it down.

His son Jerry Brown, who had been studying for the priesthood, apparently made a persuasive case. “I says ‘I’ll do it,’” Brown said. “And I did it. And they damn near executed me!”

The governor’s 60-day reprieve didn’t save Chessman, who died in the San Quentin gas chamber two months later. But his case helped ignite international opposition to capital punishment.

In 1972 the California Supreme Court declared the state’s death penalty unconstitutional. For the next 20 years, capital punishment bounced back and forth, with voters restoring it and then the courts striking it down.

The 20-year cycle began in 1977, with Jerry Brown as governor. The state legislature enacted a new death penalty law, overriding his veto. The next year voters went a step further, overwhelmingly passing Proposition 7, expanding California’s capital punishment law. Sacramento attorney Donald Heller wrote the ballot measure.

“California was a western state and a law-and-order state, even though it was a very liberal state,” Heller recalls. “It was part of the culture. It was a culture of hanging ‘em high from the big oak tree.”

But still, there were no executions. The State Supreme Court, led by Jerry Brown’s controversial Chief Justice Rose Bird, overturned more than 60 death sentences.

By 1986 Jerry Brown was out of office after deciding not to seek a third term as governor. His successor, George Deukmejian, supported a well-funded effort to oust Chief Justice Bird and two of her colleagues on the court.

Before the election, Bird said the campaign against her was simply playing off the emotions of crime victims.

“If they find a way to vent that anger and it comes to us, how can I say that that’s wrong?” a philosophical Bird said in an interview at the time. ”I think it’s wrong for the politicians to exploit that.”

But exploit it they did. Chief Justice Bird and her two colleagues lost, and Governor Deukmejian replaced them with three justices who were more conservative.

Still, another six years went by with no executions. The first scheduled to die was Robert Alton Harris, convicted of killing two teenagers in San Diego.

“If I could give my life for one or both of them I would without hesitation,” Harris said in an early-1990′s interview. “But I can’t, and whatever happens in my case, it won’t bring ‘em back.”

In 1992, Harris died in the gas chamber at San Quentin. It was the first execution in more than 25 years. Then two years later, in 1994, the state was stymied again when a federal court declared California’s gas chamber a “cruel and unusual” form of punishment.

The state switched to lethal injections, and carried out 10 executions that way. But in 2006 a federal court declared that procedure unconstitutional as well and issued an injunction stopping further executions. It remains in effect today, and more than 725 people are on death row.

Now, voters will weigh in again. Prop. 34 on the November ballot would eliminate a death penalty the measure’s backers say is broken and can’t be fixed.

One of its supporters is Donald Heller, who wrote the 1978 ballot measure expanding capital punishment.

“What I wrote was non-functional,” Heller says now. “ What I wrote resulted in injustice. And so supporting Prop. 34 was an easy decision.”

Jeanne Woodford oversaw four executions as warden of San Quentin State Prison and is also a leading proponent of Prop. 34. “I tell people (that) at the end of every execution someone on my staff would say ‘did we make the world safer tonight?’ And we all knew the answer was ‘no.’”

Woodford argues that California’s death penalty offers crime victims a false hope of closure.

“Going in and out to court,” Woodford says, “all the appeals, all of the focus on the offender. We remember the offender’s name and very seldom, very seldom do we remember the victim’s name. And that just isn’t right.”

But that doesn’t persuade Kent Scheidegger, who advocates for crime victims. He’s frustrated that time and again in Sacramento, measures to shorten the appeals process never make it out of committee.

“The very same people who are pushing this initiative have fought us tooth and nail on the reforms,” Scheidegger complains. “If the legislature would do its job and pass legislation correctly we could get this done.”

Supporters of Prop. 34 say “just locking ‘em up and throwing away the key” — no chance of parole — would be cheaper and eliminate the chance of executing an innocent person.

But opponents like Kent Scheidegger say sometimes, life in prison is too light a sentence.

“These are cases of serial rape and torture,” he notes. “People torturing and murdering children. And life in prison without parole simply isn’t a sufficient punishment.”

Last year Governor Jerry Brown cancelled plans to build a new death row at San Quentin, saying the state can’t afford it. Brown isn’t taking a public position on Prop. 34. But earlier this year his Corrections Secretary Matthew Cate framed the decision of whether to eliminate the death penalty this way:

“It would be less expensive and less complicated, that’s for sure,” Cate said. “But the real debate hinges on whether those costs and those complexities are worthwhile.”

The campaign to repeal the death penalty has out-raised its opponents by a huge margin. A recent Field Poll found voters evenly divided on the measure.

Listen to Scott Shafer’s story: