For the first time, supporters of Proposition 34 outnumber opponents, 45 percent to 38 percent.

But a fairly large portion, 17 percent, are undecided.

Field Poll Director Mark DiCamillo says voters seem persuaded by the argument that the death penalty is more expensive than life in prison.

“Back in 1989, voters by a 2-1 margin felt that it was cheaper to implement the death penalty than to house somebody in prison for life,” he said. “Now, more voters — by a 5-3 margin — think its actually cheaper to house prisoners for life.”

The Field Poll shows support is strongest in the Bay Area.

More coverage on Proposition 34 here.

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

The measure is the latest chapter in a seesaw legal and political dispute over capital punishment that stretches back 50 years in California.

But setting aside the main argument of the “Yes on 34″ camp, that the billions of dollars spent on the death penalty could better be used to solve crimes; and “No on 34″ backers, that the death penalty process could be made more efficient and cheaper, there’s another issue that often comes up in the overall debate.

Many supporters of the death penalty say it is the only fair societal consequence for the perpetrators of the most heinous crimes, and that it gives victims’ families a sense of closure. Scott Shafer has been following this question around the death penalty for more than a dozen years, and he frequently addresses the question of closure in his reporting.

Earlier this year, Shafer interviewed Mark Klaas, father of Polly Klaas — the 12-year-old girl who was kidnapped from her Petaluma home and murdered by Richard Allen Davis. Klaas has long been an advocate of the death penalty and opposes Prop. 34. He told Shafer that families say witnessing the execution of the perpetrator of a crime against a family member has helped them.

Mark Klaas: It does make a difference. It’s about carrying out the law. It’s about the final judgment. Those individuals I’ve talked to -– family members who have witnessed executions — are grateful for the experience, sad that it had to come to that, but satisfied that justice has been fulfilled.

Scott Shafer: What do you mean they’re sad it had to come to that?

Mark Klaas: Well the taking of a life is not something that should ever be looked upon lightly. And nobody finds great joy in it, including the families of murder victims. And they know this better than anyone else. But it is the law, and it is a final judgment…

I believe [Davis'] execution would bring closure to my daughter. She is the one that he contemplates as he acts out in his prison cell. It’s not going to change my life one way or the other. But I don’t invest a lot of time or energy in thinking about Richard Allen Davis. He’s dominated my family’s life quite enough as it is. I’m content to see him at least be on death row and know that at some point he may have to face that final judgment.

As warden at San Quentin Prison, home of California’s only death row for men, Jeanne Woodford presided over four executions. She says it’s a “natural reaction,” to want someone who harmed a loved one to die, but says she thinks that closure does not come to pass for families. Shafer explored this question with her in an interview he conducted late last year. Woodford told him:

People wait years for an execution that may or may not happen. People come to the prison thinking that the execution will somehow bring closure to them. I’ve just never had someone who that’s happened to.

In fact, I’ve had reporters tell me that family members told them a month or two after the execution that they regretted having been involved in the process.

Then there’s the story of Gayle Orr, whom Shafer interviewed 10 years ago. In 1980 Orr’s 19-year-old daughter was stabbed and killed near Auburn. Her daughter’s murderer was tried, convicted and sentenced to death. Orr entered what she calls a “period of darkness” during which she felt isolated and consumed with rage.

Eventually she started attending and taking classes at church, where a common topic was forgiveness. A classmate suggested that Orr should forgive her daughter’s murderer, which at first infuriated her  but ultimately prompted her to write a letter of forgiveness to her daughter’s killer.

“And the instant that I put that letter in the mailbox,” she told Shafer in that 2002 interview and confirmed in a phone call last week, “all the anger, all the rage, all the darkness that I’ve been carrying around, all the ugliness I’ve been carrying around in my body for 12 long years, instantly was gone. Just gone. And in its place I was filled with this sense of joy and love. And I was truly in a state of grace, simply from offering forgiveness to another human being.”

It’s now been 20 years since Orr mailed that letter. Since then she has created a foundation in her daughter’s name, dedicated to forgiveness and a peaceful world. Orr changed her name to “Aba Gayle,” which she says means “beloved of the Father,” and she is “totally and absolutely opposed to the death penalty under any circumstances.”

She believes that carrying anger and rage toward another person perpetuates one’s sense of being a victim. “Being a victim is a choice,” she says “and I have chosen not to be a victim any longer. … Not only did I heal myself, I healed my whole family. When you’re filled with rage, you can’t be a wife, you can’t be a mother, so healing that rage does so much benefit, not just to me, but to everyone around me.”

Aba Gayle said she still grieves for her daughter, and while she doesn’t believe her daughter’s murderer should be executed, she believes he should spend his life in prison.

Lethal injection table at San Quentin's execution chamber. (Scott Shafer: KQED)

If voters approve Proposition 34 this November, it would mark the end of capital punishment in California. It would also mean that some notorious killers such as the Night Stalker, Richard Ramirez, and Richard Allen Davis, the killer of 12-year-old Polly Klaas,  would see their sentences converted to life in prison without the possibility of parole.

The California Report’s Scott Shafer recently sat down with two prominent district attorneys on opposite sides of the issue: San Francisco’s George Gascon and Steve Cooley from Los Angeles.

Here is an edited transcript of Shafer’s conversation with the two law enforcement officials, starting with Steve Cooley discussing his view that execution is an appropriate sentence for the people on death row:

Los Angeles District Attorney Steve Cooley: There are some offenses that demand the ultimate sentence. We’ve got individuals down in Los Angeles — for example, the Grim Sleeper case which is pending — this gentleman killed 23 young women, in the most cruel, inhumane way. Life without possibility of parole is not the appropriate sentence for somebody who slaughters so many of his fellow citizens. Cop killers, baby killers, serial killers — they deserve the death penalty. In my county, we only seek the death penalty in 11 percent of the special-circumstance cases, and they are well-selected and well-deserving of the death penalty.

Scott Shafer: But, in fact, the leading cause of death on death row is old age.

Steve Cooley: Yes, because we have a failed system that doesn’t process the appeals in an efficient, timely manner. It’s a system that’s been aggravated by a Rose Bird court, and their results-oriented thinking in terms of reversing the death penalty

Scott Shafer: But that was 30 years ago.  (Editor’s note: Rose Bird served as Chief Justice of California from 1977-1987)

Steve Cooley: … and other courts that just don’t like the death penalty. And quite frankly, they’re outlaws. The law is clear. It works. It’s fair. It’s constitutional, and it’s appropriate for certain individuals, and jurors should be given the opportunity to make that decision.

Scott Shafer: George Gascon, when you ran for D.A., I believe, you pledged you would not seek the death penalty, is that correct. Why?

San Francisco District Attorney George Gascon: That’s correct. Well, I’m against the death penalty. First of all, I believe that you have to do comparisons. It’s hard to do things in a vacuum. If you compare places here in the U.S., where the death penalty is not a choice, it’s not available, versus places where there is, there is no distinguishable difference in crime.

On the other hand, the reality is that occasionally we make a mistake, and when you’re talking about taking someone’s life, making a mistake is irreversible. If you look at how many people throughout this nation have been wrongly convicted, if those people are executed, there’s no fixing of that. So I have a problem there. I also have a problem in that the way the death penalty has been implemented. It often has a very negative impact in communities that generally cannot afford the level of defense and the level of protection that other communities may have.

Finally, when you look at the financial piece and you look at how much money we’re spending on the death penalty and what could be different if that money was reinvested into policing and other services to make us safer, I believe that when you look at all those things, I just can’t imagine that the death penalty is the right tool for us any more.

Scott Shafer: What about Mr. Cooley’s point, if you kill a cop, or some other peace officer, or you kill a kid or you’re a serial killer — that you deserve that punishment, even if it isn’t implemented, that is the sentence you deserve?

George Gascon: We can always take the extreme cases and try to make policy based on extreme cases. I believe that it is more important to look at policy — remove the emotion from the policy — and look at what is practical, what can work well.

Another problem with the death penalty is because it takes so long. And the reality is that it should take long, because we don’t want to make a mistake. The victim’s family have very little opportunity for closure, they’re going over and over again the same case. When you look at putting someone in prison for the rest of their life, I believe that is actually a greater penalty and greater punishment than seeking the death penalty.

Here’s video of Scott Shafer’s interviews with Gascon and Cooley:

Learn More:

Scott Shafer’s examination of the death penalty in California and Proposition 34

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.

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:

San Quentin's death penalty chamber. (Photo: Scott Shafer, KQED)

by Scott Shafer, Lisa Aliferis, Jon Brooks

A new Field Poll finds voters closely divided on Proposition 34, the measure that would end the death penalty and replace it with life in prison.

Supporters of Prop. 34 say California’s death penalty is broken and can’t be fixed. Besides, they add, all those legal appeals are wasting taxpayer dollars.

In the latest Field Poll [PDF] released Tuesday, 42 percent of likely voters agree with ending executions. But slightly more — 45 percent — say “no” — keep things just the way they are. Thirteen percent are undecided. The margin of error is 4.3 percent.

The poll showed a sharp divide among registered Democrats and Independents versus Republicans on the issue. Democrats support the measure 50-37 percent, and no-party-preference or other voters favor it 54-33. But opposition by Republicans is at a whopping 65-23 percent.

Field Poll Director Mark DiCamillo said that support for replacing the death penalty with life in prison has been gaining ground in recent years.

“I think that gives the “Yes on 34″ side a chance,” he said. “But it’s starting off below 50 percent, and the history of our poll suggests that is an ominous place to start.”

The Field Poll samples likely voters. Today’s San Francisco Chronicle took a look at people we don’t usually hear from in this debate, specifically, the 725 inmates on death row, who of course can’t vote. The Chronicle cites evidence that most of them are opposed to overturning the death penalty.

From the Chronicle:

It’s not that they want to die, attorney Robert Bryan said. They just want to hang on to the possibility of proving that they’re innocent, or at least that they were wrongly convicted. That would require state funding for lawyers and investigators – funding that Proposition 34 would eliminate for many Death Row inmates after the first round of appeals.

Bryan has represented several condemned prisoners in California as well as Mumia Abu-Jamal, the radical activist and commentator whose death sentence for the murder of a Philadelphia policeman was recently reduced to life in prison. The attorney said California inmates have told him they’d prefer the current law, with its prospect of lethal injection, to one that would reduce their appellate rights.

“Many of them say, ‘I’d rather gamble and have the death penalty dangling there but be able to fight to right a wrong,’ ” Bryan said.

Or, as Death Row inmate Correll Thomas put it in a recent newspaper essay, if Prop. 34 passes, “the courthouse doors will be slammed forever.”

Earlier this year, KQED’s Scott Shafer interviewed Mark Klaas. Klaas became a victims’ advocate after his 12-year-old daughter, Polly, was kidnapped and murdered by Richard Allen Davis in 1993. He is strongly opposed to repealing the death penalty:

SCOTT SHAFER: You and your family suffered a tremendous loss with the death of your daughter Polly. Richard Allen Davis has been on death row for sometime now. How would this law, if it were to pass, affect him, and what are your thoughts about that?

MARK KLAAS: There are many reasons I support the death penalty. But I can tell you, Richard Allen Davis told a psychiatrist that he spends his time in prison contemplating victims of his past crimes as he masturbates at least twice daily. I believe Polly and all the other girls and people he victimized through his long criminal history deserve peace of mind. And I believe they can’t get peace of mind until justice is administered, and in this case it’s the death penalty.

SHAFER: One of the arguments for the death penalty is that it brings closure to families of crimes. But Richard Allen Davis has been on death row since 1996…

KLASS: I believe this execution would bring closure to my daughter. She is the one that he contemplates as he acts out in his prison cell. It’s not going to change my life one way or the other. But I don’t invest a lot of time or energy in thinking about Richard Allen Davis. He’s dominated my family’s life quite enough as it is. I’m content to see him at least be on death row and know that at some point he may have to face that final judgment.

SHAFER: What have other people who have witnessed the execution of a perpetrator of a crime against a family member told you? Did it make a difference?

KLASS: It does make a difference. It’s about carrying out the law. It’s about the final judgment. Those individuals I’ve talked to -– family members who have witnessed executions — are grateful for the experience, sad that it had to come to that, but satisfied that justice has been fulfilled.

Those in favor of overturning the death penalty say that the problem is that it simply costs too much money, and that justice would be better served by converting death penalty sentences to life in prison without the possibility of parole. As former San Quentin warden Jeanne Woodford explained on KQED’s Forum recently, billions of dollars could be saved.

“[That] figure [PDF] actually came from Justice Alarcon, who is the 9th circuit court judge,” she said, further explaining that Alarcon supports the death penalty and his then-law clerk Paula Mitchell, who co-wrote the analysis, does not. They studied the issues for five years, Woodford said. “They concluded that we have spent $4 billion on the death penalty since 1978, and if we continue with the death penalty we will spend up to another $7 billion on the death penalty by 2050.”

In addition, Woodford pointed to the non-partisan Legislative Analyst’s Office report which estimates savings of $130 million annually within a few years of passage of Proposition 34 — with the caveat that its estimate could vary by tens of millions of dollars.

Learn more:

• Death Penalty Research Flawed, Panel Says (NPR)
• The Quiet Revolution in the Death Penalty Debate (NPR)

San Quentin's lethal injection room. (Photo: Scott Shafer, KQED)

The death penalty is on the ballot in California in November, in the form of Proposition 34.  While death penalty discussions usually involve the topic of morality, there is little of that in the proposition’s language. Instead, Prop. 34 focuses on money. Specifically, what would be saved by abolishing the death penalty — billions of dollars, according to Jeanne Woodford, executive director of Death Penalty Focus. She explained the number on KQED’s Forum this morning.

“The figure [PDF] actually came from Justice Alarcon, who is the 9th circuit court judge,” she said, further explaining that Alarcon supports the death penalty and his then-law clerk Paula Mitchell, who co-wrote the analysis, does not. They studied the issues for five years, Woodford said. “They concluded that we have spent $4 billion on the death penalty since 1978, and if we continue with the death penalty we will spend up to another $7 billion on the death penalty by 2050.”

In addition, Woodford pointed to the non-partisan Legislative Analyst’s Office report which estimates savings of $130 million annually within a few years of passage of Proposition 34 — with the caveat that its estimate could vary by tens of millions of dollars.

At first glance, Woodford is an unusual spokesperson for overturning the death penalty. She served as warden at San Quentin State Prison, which houses California’s death row, and she’s the former director of the California Department of Corrections. Woodford spent 26 years total at San Quentin, having started in 1978, the year California reinstated the death penalty. She says the death penalty is an “illusion” — just 13 people have been executed since 1978, and another 729 people are on death row.

Kurt Scheidegger is the legal director of the Criminal Justice Legal Foundation. The savings estimates are sorely lacking, he says, because they do not take health costs into account. “You have the cost of incarcerating people and you have the cost of medical care which has become a huge portion of the Department of Corrections budget,” he said “and that portion gets larger as people gets older. If you give the people of California an iron-clad guarantee that these murderers will never be released, that means you’re going to keep them to the end of their natural lives and, as we all know, the cost of health care escalates sharply as we get older.”

Then there are the costs to victims’ families, Woodford argued. The years of litigation that comes with a death penalty conviction are draining. ”They spend years and years reliving these cases over and over again,” Woodford said, “and then so many of these cases are overturned, a high percentage. … It’s really so harmful, so hurtful to victims’ families.”

But Scheidegger counters that the years wasted are reason for reform not repeal. He insists that much of the litigation has to do with the death penalty sentence itself, not guilt. ”We spend far too time much examining the decision whether to sentence him to death or not,” Scheidegger said. “That’s a decision that needs to be reviewed carefully, but it only needs to be examined once. So we could simply eliminate all these additional appeals, reserving them exclusively for issues of guilt and save a huge amount of money, save a huge amount of time which saves the incarceration costs as well and we can also deliver justice effectively in these cases.”

Prop. 34 requires $100 million to be directed over four years to law enforcement agencies for the investigation of murder and rape cases. About half of all murder and rape cases are not solved in California. Woodford believes ending the death penalty would save money and that the money is well-spent on solving cases.

Again, Scheidegger countered that law enforcement agencies are unlikely to get additional dollars. He says the legislature will reduce general fund money to law enforcement by whatever amount Prop. 34 sends in.

You can listen to all their arguments here, on Forum:

Among the dozens of ballot measures now gathering signatures in California — is one seeking to repeal the death penalty and replace it with life sentences without the possibility of parole.
It’s chief proponent is Jeanne Woodford.

“I’m arguing for ending the death penalty because it doesn’t serve us” says Woodford. “It’s not a public safety tool.”

You might say Woodford is an unlikely opponent of the death penalty. As warden of San Quentin Prison, she presided over four executions.

“I tell people at the end of every execution someone on my staff would ask ‘Did we make the world safer tonight?’ And we all knew the answer was no,” said Woodford.

Today, Woodford is director of Death Penalty Focus, a non-profit fighting capital punishment. Woodford thinks deliberately killing inmates is immoral. But her main arguments against it: The death penalty doesn’t deter crime, it costs too much and it doesn’t help victims’ families move beyond their horrible loss.
“You know I think people wait years for an execution that may or may not happen,” said Woodford. “I mean people come to the prison hoping that that execution will somehow bring closure to them and I’ve never had anyone say that it did.”

Don’t tell that to Marc Klaas. His 12-year-old daughter Polly was kidnapped, assaulted and murdered by Richard Allen Davis. Davis has been on death row since 1996. And while there is no execution date, Klaas knows where he’ll be the day Davis is scheduled to die.

“I’ll spend that day in the execution chamber watching him,” said Klaas. “And i would hope the last thing he’d see is my eyes — just as the last thing my daughter saw before he strangled the life out of her — after he raped her — were his eyes.”

Woodford’s initiative is retroactive — so if it makes it to the ballot and passes, all 719 people on death row — including Richard Allen Davis — would get a reprieve. Their death sentences would revert to life in prison without the possibility of parole.
State Corrections Secretary Matthew Cate won’t say where he stands on the death penalty. But, in an interview last year before this initiative was written, he acknowledged the difficulties of implementing it.

“We have enormous responsibilities and the regulatory and legal hurdles are significant,” said Cate. “It is very complex.”

But efforts to expedite capital punishment — by shortening the appeals process for example — have all failed in the State Legislature.

Opponents of executions say ending the death penalty could save the state more than a $100 million, a figure cited by the nonpartisan Legislative Analyst.

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

The campaign to end capital punishment is well funded. Supporters have raised more than a million dollars. But if their measure gets on the ballot, it’s sure to face powerful opposition, from law enforcement organizations and crime victims groups. Proponents have until mid-March to collect their signatures.

Listen to the radio story: