Back in 2016, I was campaigning with a group of determined activists, some of them formerly incarcerated, for Prop 62, which would have abolished the death penalty in California. Most of our messaging, just like when we had campaigned for Prop. 34 in 2012, was aimed at centrists, who were on the fence about the death penalty but would care how much it cost. It was only pretty late in the game that I realized there was another group we had not been addressing: progressives.
You’d think progressives were not a demographic that needed convincing about death penalty abolition. But in the topsy-turvy, horseshoe-theory world of progressive activism, being against the death penalty doesn’t equal voting against the death penalty. The usual reason people gave was something like this: getting rid of the death penalty would merely retrench life without parole, which is not that different from the death penalty given that we’re not executing anyone, and life without parole is wrong and bad, so let’s vote against abolition, so that… wait a minute, so that what?
Back when this happened, I was a lot more sanguine about progressive activism–it was eight years ago, Trump hadn’t been elected yet, and much of the nonsense that now plagues my political environs was in its infancy–but even then, this position seemed absurd to me. Don’t these people understand that legal change works incrementally? I agonized. Or are they pretending not to know so they can posture about how good, and how against LWOP, they are? So I ended up writing this:
You know what? I agree with you. Life without parole is, indeed, an extreme form of punishment. Like you, I am committed to a struggle to bring a possibility of hope–an exit possibility–to any prison sentence.
Unfortunately, we can’t start our fight against life without parole until we win our fight against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and with a big base of consensus.
I wish there were a critical mass of Californians of all political persuasions convinced that our criminal justice system needs to be immediately reformed. Not just at the edges, not just for nonviolent inmates, not just for juveniles, but for everyone. But that is not the world we live in. The political reality is that, in order to make change, incremental steps have to be taken. Remember same-sex marriage? That didn’t happen overnight. There were revolutionaries calling for marriage back in the seventies, when it was unthinkable. Then, the movement had to regroup, advocate for lesser protections (domestic partnerships, workplace protection). Yes, domestic partnership was less than marriage in important ways. But this is why public opinion changed, between the mid-1990s and the early 2010s. Incremental change is what led to the triumph of that movement.
For an even more relevant example, see what is happening with juvenile justice. Life without parole for juveniles is horrible, right? And look at how close we are to eradicating it–because in 2005, in Roper v. Simmons (2005) the Supreme Court abolished the death penalty for juveniles. It was the first step in a long series of reforms. In Graham v. Florida (2010) the Supreme Court felt comfortable relying on the same arguments to abolish life without parole for nonhomicide crimes. In Miller v. Alabama (2012) the Supreme Court relied on that logic to abolish mandatory life without parole for all juveniles, and then felt comfortable making that ruling retroactive in Montgomery v. Louisiana (2016). We are now within striking distance of abolishing life without parole for juveniles. None of this would have been possible without Roper v. Simmons.
This is even truer for legislative/public campaigns than for judicial change. To make reform happen, we need wide public consensus–not just an agreement among progressives. We need our conservative and moderate friends to live with the new situation for a while, realize that the sky doesn’t fall if punishment is less extreme, and accustom themselves to the idea of further reform. A classic example is marijuana legalization. Recreational marijuana would not be on the ballot–within reach and polling great so far–if Californians of all persuasions didn’t have a chance to live with medical marijuana for years and realize that it was not the end of the world. Do you think we would have been here, at this point in time, if progressive voters had declined to vote for medical marijuana, claiming that limiting legalization to medical patients wasn’t good enough? Similarly, conservatives and centrists grew accustomed to same sex marriages because they lived with domestic partnerships. They will be willing to consider a reform of life without parole if and when they see that the death penalty was abolished and it didn’t lead to a rise in crime rates, a decline in public safety, or any other negative consequences. You and I already know that giving reformed, aging folks a chance at parole is also not a safety risk. But not everyone knows that, and we need our friends across the political map to agree with us. We can’t make change otherwise.
I’ve been studying criminal justice reforms for the last sixteen years. I have not seen a single criminal justice reform that sprang perfectly from nothing. Every change we’ve seen since 2008–and we’ve seen plenty, believe me–was the product of incremental, bipartisan reform. This will be no exception. We can’t get from A to Z skipping steps along the way. I know you’re ready for Z. So am I. But the people whose hearts and minds we have to change so that Z happens–and we can’t make it happen without them–need us to go through all the steps so that we can have a coalition. What we want won’t happen otherwise.
We all know what happened with Prop 62. It was exactly what happened with Prop 34 four years earlier. We lost by a small gap, and the death penalty remained, and it is still sucking the soul and the funds of California for the sake of absolutely nothing, as I explain in an article that’s coming out in a couple of months in The Green Bag (I’ll post it when it is published). But today we have more proof of how we ignore the incremental path of change at our own peril. Stephanie Lam wrote for the Mercury News:
State lawmakers have dismissed a bill by a Santa Clara County senator that would have provided a chance at release for some inmates serving life in prison without the possibility of parole for murder.
Sen. Dave Cortese, a San Jose Democrat, authored SB 94 in 2022 in hope of offering inmates who were convicted of murders committed before June 5, 1990, and who already have served a minimum of 25 years, opportunities to seek parole.
“After two years of negotiations and over a dozen deliberated amendments, I am incredibly disappointed that SB 94 was not granted the opportunity to be heard and the amendments considered for vote by the full Legislature,” Cortese said in a statement. “The bill, like those it would’ve helped, did not get its day in court.”
Does the bill make sense? Of course it does. It’s not automatic release, it’s a resentencing hearing for people who have already spent decades behind bars. If anyone knows that not everyone gets out on parole, it’s me. But folks, you can’t sell people on abolishing LWOP before you abolish the death penalty. You just can’t. I know there’s a moratorium. I know the death chamber has been dismantled. The reason it had to be done by executive decree is that it couldn’t yet be done through the legislature. I think that day is coming really fast, I really do. But the death penalty, like the Balrog, can be at its most vicious just as it appears to fall into the abyss. And until it finally does, all the beautiful speeches about how LWOP is merely “death by another name” and how we’re “retrenching” or “non-reform reforming,” won’t do. Either you don’t know how the sausage is made, or you pretend you don’t, but the result is that the perfect becomes the enemy of the good. And here we are. Again.
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