Update on the Death Penalty in California

California has more inmates on death row than any other state in the country. However, while the state seems to have no problem sentencing defendants to death, it seems to have a bit of an issue with the follow through. California has not executed a death row inmate since 2006. However, as the state prepares for a shift in leadership, it may begin to perform executions, once again.

Why Isn’t California Executing Death Row Inmates?

There are a few different reasons that could explain why it has been 12 years since California executed an inmate on death row.

Questions of Constitutionality

Between 1993 and 2006, California carried out 13 death row executions. In 2006, however, things changed when a federal court held that the state’s lethal injection protocol was unconstitutional. Specifically, the court explained that the methodology employed by the state violated the prohibition of cruel and unusual punishment. It did not say that all executions by lethal injection were unconstitutional. Instead, the court explained that California had to find a better way to carry out the execution.

Since that decision, the state has been working to develop a lethal injection protocol that will not subject death row inmates to excruciating pain and a drawn-out death. However, it appears that the state has been airing on the side of caution, fearing that other protocols may also subject prisoners to a slow, painful, and mentally-abusive death. There is a clear struggle in California and across the country to find a way to execute death row inmates that is humane.

Voters’ Views on Capital Punishment

Studies show that California voters are split on the issue of capital punishment.  In the past decade, there have been two ballot initiatives addressing the abolishment of the death penalty. Each failed by a very small margin. In 2012, Proposition 34, which would have declared executions unconstitutional, had the support of 48 percent of voters. In 2016, Proposition 62, which was another effort to abolish the practice, had the support of 47 percent of voters. Perhaps not surprisingly, support for abolishing the death penalty is most heavily concentrated in areas of the state populated by minorities. As a general rule, the death penalty disproportionately affects black and Hispanic individuals.

Since the state is so split on the issue, the government may be hesitant to carry out executions. Many elected officials, particularly those in minority-heavy areas, may fear that their political futures could be jeopardized by supporting new executions.

Governor Resistance

Many have pointed out that California may not have performed any executions in recent years because of its anti-death penalty governor.  As a Catholic, Governor Jerry Brown is not only politically opposed to capital punishment, but morally and religiously opposed, as well. His own personal views have undoubtedly helped him to avoid efforts to revamp the state’s execution process.

While Brown is set to retire in January, it actually seems as if he will be replaced by a governor who is also opposed to the death penalty. Five of the six candidates chasing his seat in the Governor’s mansion, including both Democrats and Republicans, have plainly stated that they are not in favor of the death penalty. When Brown exits, California’s stance on the death penalty may still be up in the air.

What Will Happen Next?

In 2016, California voters passed Proposition 66, which now requires the state to speed up execution efforts. While California courts have temporarily stayed all executions, they will be pressured to set execution dates for inmates who have exhausted all appeals. There are currently 18 death row inmates, including Robert Fairbank, David Raley, and Anthony Sully, who could conceivably receive execution dates within the next year

Presumably, however, courts will try to wait until Governor Brown reaches the end of his term to see if he offers clemency to any death row inmates. While state law prohibits him from commuting the sentences of inmates who have been convicted of 2 or more felonies without court approval, he does have the ability to help approximately half of the inmates on death row.

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