Euthanize the Death Penalty Already: Scenes from Capital Punishment’s Chronic Deathbed

(published: The Green Bag 27(3), Spring 2024)


INTRODUCTION

J.R.R. Tolkien’s immortal Lord of the Rings tells of the crossing of the Bridge of Khazad-dûm, during which members of the Fellowship of the Ring inadvertently awaken the Balrog. A monstrous holdover from ancient times, the Balrog attacks the Fellowship. Gandalf, the wizard leader of the Fellowship, successfully fights the monster, but at the very last moment, as the Balrog plunges to its death, it swings its whip one last time, capturing Gandalf and dragging him along into the abyss under the Bridge of Khazad-dûm.

The U.S. death penalty in the 21st century is like the Balrog – arcane, decrepit, still grasping and lashing its whip even as it approaches its demise. The score, state-by-state, is practically against capital punishment: 23 states have abolished it, and out of the 27 states that retain it, six (plus the federal government under President Joe Biden) have instated moratoria upon its use.

Even in retentionist states, the rate of executions has slowed almost to a grinding halt, and initiatives to abolish the death penalty frequently appear on the ballot. Even as Americans hang on to their support of the death penalty by a thread,3 and these ballot initiatives continue to be defeated,4 the death penalty continues to lose practical ground.5 Much like people on death row, most of whom die natural deaths after decades of incarceration and litigation,6 the death penalty itself is dying a slow, natural death.

As Ryan Newby and I explained more than a decade ago, the slow decline of the death penalty has been caused by a confluence of several factors.7 The first is the advent of cheap-on-crime politics in the aftermath of the Great Recession of 2008, which drew attention to the immense, disproportionate expenditure on capital punishment. 8 The second is the rising prominence of the innocence movement, which has shone a light on the widespread problem of wrongful convictions, supported in recent years by
the popular reach of true-crime podcasts highlighting miscarriages of justice.9 The third is the growing attention to racial disparities in criminal justice which, while a tough argument to bring up in litigation,10 has impacted the national policy field through Obama-era reforms.11

The expense, discrimination, and potential for harrowing mistakes are all aspects of the chronic disease afflicting the death penalty. But like many natural deaths from chronic disease, the end is prolonged, undignified, and sometimes bitingly cruel. Anyone who has cared for a loved one through the end of life can probably recall the chaotic, arbitrary, sometimes contradictory indignities that every day of decline brings in its wings. And so, in this paper, I offer you a safari tour of horrors, injustices, absurdities, and embarrassments that have characterized the death penalty through its prolonged chronic demise.


TRUMP’S LAST KILLING SPREE: RELUCTANT VICTIMS, ALZHEIMER’S, AND JURISDICTIONAL DISPARITIES


Tolkien is a master storyteller, and he sets up the moment when the Balrog’s whip ensnares Gandalf as poignantly tragic – a sudden, unnecessary reminder that, even at its demise, the ancient monster can still unleash vicious harm. The last few days of the Trump administration offered ample proof of this, through the Supreme Court’s decision in Barr v. Lee.12

Like much of latter-day death penalty litigation, Lee focused on chemicals used in federal executions – to wit, a single shot of pentobarbital, a mainstay of state executions as European countries no longer export lethal drugs to the U.S.13 As Ryan Newby and I explained in 2013, this sort of litigation is a classic example of what Justice Harry Blackmun referred to in the early 1990s as “tinkering with the machinery of death.” Blackmun could afford a direct, stop-beating-around-the-bush approach to the tiresome and technical minutiae of postconviction litigation, but capital defense lawyers cannot; arguments about human rights and racial disparities have long been futile, for various procedural reasons, and the limits of the sayable on appeal and on habeas revolve around chemicals and number of injections. Barr v. Lee, decided 5-4, was no exception: the plaintiffs, whose cases were final and cleared for executions, provided expert declarations correlating pentobarital use to flash pulmonary edema, a form of respiratory distress that temporarily produces the sensation of drowning or asphyxiation. The federal government provided contrary expert testimony, according to which pulmonary edema occurs only after the prisoner has died or been rendered
fully insensate. The Supreme Court found, per curiam, that the plaintiffs had not carried the burden of proof and cleared the way for the executions. Justice Stephen Breyer’s dissent echoed Blackmun’s distaste for what death penalty litigation has become, remarking, “[t]his case illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishmen[t].’” Justice Sonia Sotomayor, in turn, remarked on the absurdity of doing justice to fundamental questions via “accelerated decisionmaking.”

Then came three troubling executions. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victims’ families to spare him.14 The judicial and executive branches’ trampling of those requests followed the usual capital punishment theater in which, as Sarah Beth Kaufman explains in American Roulette, prosecutors, governors, and death penalty advocates use victims as props, assuming that punitiveness is faithful to their wishes – a position that does not faithfully represent the diverse views among victims of violent crime.15 According to the first-ever national survey of crime, twice as many victims prefer that the criminal justice system focus more on rehabilitation than on punishment; victims overwhelmingly prefer investments in education and in job creation to investments in prisons and jails, by margins of 15-to-1 and 10-to-1 respectively; by a margin of 7-to-1, victims prefer increased investments in crime prevention and programs for at-risk youth over more investment in prisons and jails; and 6 in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation than on lengthy prison sentences.

Then, the federal government executed 68-year-old Wesley Purkey, who was described by his lawyer, Rebecca Woodman, as a “severely braindamaged and mentally ill man who suffers from Alzheimer’s disease” and does not understand “why the government plans to execute him.”16 The debate over Purkey’s mental illness was emblematic of the decades and billions of dollars spent poring over the fitness for execution of elderly, decadeslong death row residents. It also made a mockery of Atkins v. Virginia,
17 which forbade the execution of mentally challenged people but left it up to individual jurisdictions to duke out the details of who, precisely, they deem smart or sane enough to be injected with pentobarbital.

Finally came Dustin Honken’s execution, which offered a grim reminder of the gap between the inexplicable federal enthusiasm for executions and the waning interest of states in the penalty. Honken was the first person from Iowa to be executed since 1963; Iowa abolished the death penalty in 1965. Honken’s lawyer, Shawn Nolan, said, “There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.”18

Another development was the reintroduction of electrocutions and firing squads as permissible execution methods by the administration of President Donald Trump in late November 2020 – after Biden had defeated Trump in the presidential election. The change was intended to offer federal prosecutors a wider variety of options for execution in order to avoid delays if the state in which the inmate was sentenced did not provide other alternatives. At the same time, the Department of Justice said it would keep federal executions in line with state law: “the federal government will never execute an inmate by firing squad or electrocution unless the relevant state has itself authorized that method of execution.”19

Trump’s appetite for executions was, at least, consistent with his positions on capital punishment since the 1980s, when he regularly purchased large ads and gave interviews advocating for the death penalty for the Central Park Five20 (who have since been exonerated, as is well known). In the early days of his presidency, he chased headlines expressing support for capital punishment for drug dealers.21 While consistent with Trump’s presidential positions, the viciousness of his last-minute addition of federal electrocutions and firing squads seemed pointless, since Biden was known to oppose the death penalty and had made campaign promises to work toward federal abolition.22 Moreover, any effort to electrocute or shoot death row convicts would embroil the federal government in interminable Eighth Amendment litigation, given the always-present risk of botched executions.

The last slew of planned Trump executions included more cases that provoked moral anguish. For example, the execution of Lisa Montgomery, the only woman on federal death row.23 Montgomery’s crime was shockingly brutal. She strangled a pregnant woman before cutting her stomach open and kidnapping her baby. Her own experiences of victimization were torturous and harrowing. She was sexually assaulted by her father starting at 11 years old, trafficked by her mother, and horrifically abused by her stepbrother, who became her husband. She was involuntarily sterilized, deteriorated into severe mental illness, and lived in abject poverty at the time the crime was committed. The uproar about the sentence provoked heated debates about the Trump administration’s appetite for creating controversies that the Biden administration would then have to undo. What is the point, one might ask, of all this cruelty? And the answer, as Adam Serwer wrote in a different context, might be: the cruelty is the point.24

OKLAHOMA: CHEMICALS AND INNOCENCE

A tragic Talmudic story tells how Yehuda ben Tabbai, President of the Sanhedrin, once wrongly convicted a man of perjury. By the time ben Tabbai realized his mistake, it was too late; the man had already been put to death. Shocked by his complicity in injustice, ben Tabbai would never again rule singlehandedly on a legal point, and every day of his life he would prostrate himself on the grave of the wrongly executed man, begging forgiveness and weeping.25

One wishes that more judicial and executive officials would take a page from ben Tabbai’s book. Instead, a sense of confusion, lack of commitment, and being in perpetual limbo has characterized capital punishment for the last decade. The story of Richard Glossip, the lead petitioner in Glossip v. Gross, is a case in point. In 2015, the Supreme Court rejected Glossip’s petition against the use of midazolam in his execution, just a brief time after the same drug played a horrendous part in the botched execution of Clayton Lockett. In line with the aforementioned trend of technical litigation, the decision revolved around whether Glossip had shown that Oklahoma had better execution methods than midazolam.26

Anyone reading the decision could be forgiven for having no idea that Glossip is widely believed to be innocent, and that Oklahoma’s Attorney General, who reviewed his case, does not stand behind the conviction. Nevertheless, the Oklahoma Court of Criminal Appeals would not halt Glossip’s execution. Judge David Lewis wrote that the case “has been thoroughly investigated and reviewed,” with Glossip given “unprecedented access” to prosecutors’ files, “[y]et he has not provided this court with sufficient information that would convince this court to overturn the jury’s determination that he is guilty of first-degree murder and should be sentenced to death.” It took yet another petition to the U.S. Supreme Court to halt the execution.27

CALIFORNIA: DEATH BY MORATORIUM

For more ambiguity and discombobulation on the death penalty in the 21st century, consider California, where several rounds of abolitionist voter initiatives failed in the last decade.28 I want to spend more time discussing California, not only because I am intimately familiar with capital punishment law where I live and work, but also because I think the last decade in the Golden State perfectly encapsulates what a chronic, slow death for capital punishment looks like. In 2016, while narrowly defeating the abolitionist Prop 62, California voters narrowly approved Prop 66, which was supposed to speed up executions, as well as allow death row residents to be relocated to other prisons where they could pay restitution to their victims. Some aspects of Prop 66 – specifically, those which remove safeguards against wrongful executions – have been found unconstitutional, but most of it has survived constitutional review.29

When explaining what the death penalty in California was like in the late 2010s, I sometimes borrow a framework from the construction world. When planning a project, general contractors might draw a triangle, writing in each corner one word – respectively, “good,” “fast,” and “cheap.” They then say to the client, “you can’t have all three; pick two.” This is an apt description of why death penalty opponents often refer to California’s capital punishment as “broken beyond repair.” A “good” and “cheap” death penalty would require finding some way to seriously litigate postconviction motions on a lengthy timeline and on a shoestring, relying mostly on California’s minuscule existing cadre of capital habeas litigators. Cases would drag on and on, as they do now, until people received representation, a situation that at least one federal judge found to violate the Eighth Amendment.30 A “good” and “fast” death penalty, which is what some supporters of Prop 66 perhaps wanted, would require massive expenditures so that proper, high-quality representation could be found and habeas writs could efficiently work their way through the courts. A “fast” and “cheap” death penalty, which is what Prop 66 might have produced had all its aspects been found constitutional, would do away with many safeguards against wrongful executions and result in more deadly mistakes. Even if
one approves of capital punishment in theory, as many California voters do (for example, through a retributive framework), it is therefore hard to compare its abstract form to the way it is administered in practice: There is no way of fashioning capital punishment in California in a way that guarantees it to be “good,” “fast,” and “cheap.”

These concerns, and many others, led California Governor Gavin Newsom to take a step that his abolitionist predecessors had shied away from: placing a moratorium on the death penalty in California and ordering the
death chamber dismantled.31 Newsom is also turning San Quentin prison, home to the country’s largest death row, into a Scandinavian-style “center for innovation focused on education, rehabilitation and breaking cycles of crime.” For the first time in decades, residents of death row are able to move freely within the facility, and many of them will be transferred to other facilities, a monumental change in their life circumstances that some death row residents, acclimated to their peculiar, restrictive lives, view with apprehension.32 But these are executive, not legislative acts. Because the death penalty still has a legal, if not ontological, existence, people whose lives were saved by the moratorium are still, legally, capital convicts, and costly postconviction litigation on their cases continues, to the tune of $150 million per annum.33

To cynical commenters, who might observe that this new incarnation is not “good,” “fast,” or “cheap,” one might respond, “at least we’re not executing people.” But saying, “no one is being executed on death row” is
far from saying, “no one dies on death row.” In late May 2020, as a San Francisco Chronical exposé revealed – and as a subsequent investigation by the California Inspector General’s office and litigation in state courts confirmed – San Quentin, still home to the country’s largest death row, was overcrowded to 113% of design capacity.34 Alarmed by a horrific COVID19 outbreak at the California Institute of Men in Chino, custodial and
medical officials there sought to mitigate the spread by transferring 200 men out of the facility, 122 of them to San Quentin. The men were not tested for COVID-19 for weeks prior to their transfer. On the morning of
the transfer, several transferees told nurses that they were experiencing COVID-19 symptoms (fever and coughing). According to email correspondence between health officials, these men were treated as malingerers and the transfer proceeded as planned. No effort was made to facilitate social distancing within the buses; the transferees heard and felt their neighbors cough throughout the lengthy journey to the destination facilities.35

The virus spread quickly throughout San Quentin. By the end of June, more than three quarters of the prison population had been infected and 29 had died – 28 prisoners and one worker.36 San Quentin’s death row was especially vulnerable to COVID-19, both because of the low quality of the physical plant – a dilapidated, poorly constructed, and thinly staffed long-term home to approximately 750 men (now many fewer) – and because the death row population tends to be older and sicker than the general prison population. The virus tore quickly through death row, and while prison authorities did what they could to obscure the calamities, San Francisco Chronicle journalists broke the story:

A coronavirus outbreak exploding through San Quentin State Prison has reached Death Row, where more than 160 condemned prisoners are infected, sources told The Chronicle on Thursday. One condemned inmate, 71-year-old Richard Eugene Stitely, was found dead Wednesday night. Officials are determining the cause of death and checking to see whether he was infected.

State prison officials declined to confirm that the virus has spread to Death Row, but three sources familiar with the details of the outbreak there provided The Chronicle with information on the condition they not be named, and in accordance with the paper’s anonymous source policy. Two of the sources are San Quentin employees who are not authorized to speak publicly and feared losing their jobs.

There are 725 condemned inmates at San Quentin, and of those
who agreed to be tested for the coronavirus, 166 tested positive, the
sources said. . . .

It is unclear whether Stitely was infected with the coronavirus. He refused to be tested, according to the three sources with knowledge of the situation.37

By contrast to general population residents, whose identities were hidden from the public for medical privacy reasons, the California Department of Corrections and Rehabilitation sent emails to interested parties about
deaths of people on death row, listing their names and full details. Through subtracting the named casualties from the total death toll, a horrifying truth emerged: More people died on death row from COVID-19 under Newsom’s moratorium than California had executed since the reestablishment of the death penalty in 1978.38

This outcome was deeply ironic, because even after the moratorium, with no death chamber and bereft of lethal chemicals, California courts continued to be clogged with death penalty litigation concerning details
revolving around whether various modes and aspects of the execution process are “cruel and unusual” even as the death penalty itself was still deemed “kind and usual.”39 Flying in the face of this precious and expensive effort to sever the death penalty from any of its potentially cruel and unusual implications were executions clearly not prescribed by the California Penal Code: deaths from a contagious pandemic, compounded by incompetence and neglect.

At the same time, even stalwart supporters of the death penalty realized that capital verdicts that will never be carried out make no sense, logically or practically. In summer 2020, Santa Clara County District Attorney Jeff Rosen, by no means a capital-punishment-shy public prosecutor, announced that his office would no longer seek the death penalty. Rosen claimed that his visit to the Civil Rights Museum in Alabama inspired him to see the death penalty not only “through eyes of the victims and families of those whose lives were taken,” but also “through the lens of race and inequity.” The rationales he offered for the policy change were in line with those behind the penalty’s decline in popularity more generally: “These cases use up massive public resources and cruelly drag on for years with endless appeals that give no finality to the victims’ families,” he said. “There’s the tragic but real risk of wrongful conviction. And, shamefully, our society’s most drastic and devastating law enforcement punishment has been used disproportionately against defendants of color.”40 Rosen was facing an election challenge from a more progressive candidate, which could partly explain his change in position. Nevertheless, his reliance on the more general arguments means that the gubernatorial changes at San Quentin did resonate.

Perhaps even more important was the announcement by George Gascón, upon his election as Los Angeles District Attorney in fall 2020, that the county would no longer seek the death penalty41 – an inflection point for one of California’s four “killer counties” and one of the entire country’s three highest sources of capital sentences. 42 Even more striking is a remarkable data point from Sacramento: Joseph DiAngelo, otherwise known as the Golden State Killer, was finally caught and convicted using innovative forensic investigative tools.43 The Sacramento County prosecutor did not even ask for the death penalty, and rightly so, as it would have allowed DiAngelo to continue litigating at the state’s expense only to die a natural death, like everyone else on death row. Which raises a fair question: If not the most notorious and heinous criminal in the history of California, then who?

WHAT DEATH PENALTY EUTHANASIA MIGHT LOOK LIKE

Capital punishment’s last gasps are, as these examples show, rife with inconsistencies, ironies, and changes of direction, which raise the question when, and how, the end will come. As public opinion and results at the ballot box show, the death penalty retains a symbolic hold over the American imagination. But judges and politicians are exposed to its unsavory sides.

It is hard to provide facile explanations for the different modes of the capital penalty’s demise in recently abolitionist states. In Washington, abolition arrived through a judicial decision about racial disparities in the penalty’s application;44 in Delaware, through a case involving arbitrary jury decisions in capital cases, which was later extended to the remaining cases on death row;45 in New Hampshire, through a non-retroactive statute; 46 in Colorado, through a combination of a statute and gubernatorial commutations;47 in Virginia, the first Southern state to abolish the death penalty, through a bipartisan legislative vote.48

One is left wondering whether it is easier to get rid of the death penalty in retentionist states – such as in Illinois, where abolition followed Governor George Ryan’s mass commutations, largely due to his concerns about innocence and wrongful executions49 – or in states with moratoria – such as California, where one wonders whether the dismantlement of the death chamber and the disbanding of death row, along with the vanishing prospect of an execution as a lightning rod, might be slowing down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole),50 does the effort to abolish a thoroughly defanged (but still expensive) death penalty lose its steam?

What signals a new phase in the death penalty’s terminal illness is a combination of factors: a critical mass of abolitionist states; backlash caused by the Trump administration’s execution spree; the absence of capital sentencing nationwide and, especially, in high-profile cases; abolitionist thinking and decisionmaking at the county prosecution level; the specter of COVID-19 deaths; and, of course, the ever-rising costs. We are unlikely to see a definitive kiss of death. Instead, many local developments may eventually mean – perhaps, to our surprise – that, like so many people on death row itself, capital punishment has died a quiet, natural death.

NOTES


1 J.R.R. TOLKIEN, THE LORD OF THE RINGS: THE FELLOWSHIP OF THE RING bk. II, ch. 5
(2012 [1954]).

2 Abolitionist states with date of abolition: Alaska (1957), Colorado (2020), Connecticut (2012), Delaware (2016), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Maryland
(2013), Massachusetts (1984), Michigan (1847), Minnesota (1911), New Hampshire (2019),
New Jersey (2007), New Mexico (2009), New York (2007), North Dakota (1973), Rhode
Island (1984), Vermont (1972), Virginia (2021), Washington (2023), West Virginia (1965),
Wisconsin (1853). Retentionist states (including states with moratoria): Alabama, Arizona,
Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wyoming.
States with moratoria, along with moratorium date: California (2019), Pennsylvania (2023),
Oregon (2022), Arizona (2023), Ohio (2020), Tennessee (2022). The federal moratorium
was put in place by the Biden administration in 2021. Source: Death Penalty Information
Center (“Death Penalty Info”) website, deathpenaltyinfo.org/states-landing. 3 Megan Brenan, “Steady 55% of Americans Support Death Penalty for Murderers,” Gallup, Nov. 14, 2022.

4 AUSTIN SARAT, JOHN MALAGUE, AND SARAH WISHLOFF, THE DEATH PENALTY ON THE
BALLOT: AMERICAN DEMOCRACY AND THE FATE OF CAPITAL PUNISHMENT (2019).

5 DANIEL LACHANCE, EXECUTING FREEDOM: THE CULTURAL LIFE OF CAPITAL PUNISHMENT
IN THE UNITED STATES (2016).

6 166 non-execution deaths, as of 2024: Death Penalty Focus, deathpenalty.org/facts/.

7 Hadar Aviram and Ryan Newby, “Death Row Economics: The Rise of Fiscally Prudent
Anti-Death Penalty Activism,” 28 CRIM. JUST. 33 (2013).

8 HADAR AVIRAM, CHEAP ON CRIME: RECESSION-ERA POLITICS AND THE TRANSFORMATION
OF AMERICAN PUNISHMENT (2015).

9 Keith A. Findley, “Innocence Found: The New Revolution in American Criminal Justice,”
in CONTROVERSIES IN INNOCENCE CASES IN AMERICA 3-20 (2016); Lindsey A. Sherrill,
“Beyond Entertainment: Podcasting and the Criminal Justice Reform ‘Niche,’” and Robin
Blom, Gabriel B. Tait, Gwyn Hultquist, Ida S. Cage, and Melodie K. Griffin, “True
Crime, True Representation? Race and Injustice Narratives in Wrongful Conviction Podcasts,” in TRUE CRIME IN AMERICAN MEDIA 67-82 (2023).

10 McClesky v. Kemp, 481 U.S. 279 (1987).

11 Barack Obama, “The President’s Role in Advancing Criminal Justice Reform,” 130 HARV.
L. REV. 811 (2017).

12 Barr v. Lee, 591 U.S. 979 (2020).

13 “Europe’s moral stand has U.S. states running out of execution drugs, complicating capital
punishment,” CBS NEWS, Feb. 18, 2014.

14 Hailey Fuchs, “Government Carries Out First Federal Execution in 17 Years,” NEW YORK
TIMES, July 14, 2020.

15 SARAH BETH KAUFMANN, AMERICAN ROULETTE: THE SOCIAL LOGIC OF DEATH PENALTY
SENTENCING TRIALS (2020).

16 Khaleda Rahman, “U.S. Executes Wesley Purkey, Who Calls It a ‘Sanitized Murder’ In
Last Words,” NEWSWEEK, July 16, 2020.

17 Atkins v. Virginia, 536 U.S. 304 (2002).

18 Shawn Nolan, “Statement From Shawn Nolan, Attorney For Dustin Honken,” FEDERAL
DEFENDER, July 17, 2020.

19 Matt Zapotosky and Mark Berman, “Justice Dept. rule change could allow federal executions by electrocution or firing squad,” WASHINGTON POST, Nov. 27, 2020.

20 Colby Itkowitz and Michael Brice-Saddler, “Trump still won’t apologize to the Central
Park Five. Here’s what he said at the time.” WASHINGTON POST, June 18, 2019.

21 Michael Krasny, “President Trump Announces Plan to Fight Opioid Abuse, Including
Death Penalty,” KQED FORUM, Mar. 20, 2018.

22 Dakin Andone, “Biden Campaigned on Abolishing the Federal Death Penalty. But 2 Years
In, Advocates See an ‘Inconsistent’ Message,” CNN, Jan. 22, 2023.

23 Reuters, “Lisa Montgomery: US Executes Only Woman on Federal Death Row,” BBC
WORLD, Jan. 13, 2021.

24 Adam Serwer, “The Cruelty Is the Point,” THE ATLANTIC, Oct. 3, 2018.

25 Bavli Hagiga 16:2.

26 Glossip v. Gross, 576 U.S. 863 (2015); Jeffrey E. Stern, “The Cruel and Unusual Execution
of Clayton Lockett,” THE ATLANTIC, June 15, 2015.

27 Glossip v. State, www.okcca.net/cases/2023/OK-CR-5/ (2023); Glossip v. Oklahoma, 143.Ct. 2453 (2023).

28 Prop 34 failed in 2012: David A. Love, “Prop 34 Fails But Signals the Imminent Demise
of California’s Death Penalty,” THE GUARDIAN, Nov. 9, 2012. Prop 66 failed in 2016:
Sarah Heise, “Death Penalty Supporters Claim Victory with Failure of Prop 62,” KCRA3, Nov. 9, 2016.

29 Bob Egelko, “California Supreme Court Upholds Most Of Expedited Death Penalty
Initiative,” SAN FRANCISCO CHRONICLE, Aug. 24, 2017.

30 Jones v. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014).

31 Kyung Lah, “How Kamala Harris’ Death Penalty Decisions Broke Hearts on Both Sides,”
CNN, Apr. 8, 2019; Eric Westervelt, “California Says It Will Dismantle Death Row.
The Move Brings Cheers and Anger,” NPR, Jan. 13, 2023.

32 Nigel Duara, “Gavin Newsom Moves to ‘Transform’ San Quentin as California Prison
Population Shrinks,” CALMATTERS, Mar. 21, 2023; Sam Levin, “The Last Days of Death
Row in California: ‘Your Soul is Tested Here’,” THE GUARDIAN, May 1, 2023.

33 Arthur Rizer and Marc Hyden, “Why Conservatives Should Oppose the Death Penalty,”
THE AMERICAN CONSERVATIVE, Jan. 10, 2019.

34 Mary Harris, “California’s Carelessness Spurred a New COVID Outbreak,” SLATE, July 7,2020; Roy W. Wesley and Bryan B. Beyer, “COVID-19 Review Series, Part Three,” OFFICEOF THE INSPECTOR GENERAL STATE OF CALIFORNIA, Feb. 1, 2021, 1-2, www.oig.ca.gov/wpcontent/uploads/2021/02/OIG-COVID-19-Review-Series-Part-3-%E2%80%93-Transferof-Patients-from-CIM.pdf; “Monthly Report of Population As of Midnight June 30, 2020,”CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, July 1, 2020, 2, www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/07/Tpop1d2006.pdf.

35 For a thorough examination of COVID-19 and California’s death row, see HADAR AVIRAM AND CHAD GOERZEN, FESTER: CARCERAL PERMEABILITY AND CALIFORNIA’S COVID19 CORRECTIONAL DISASTER (2024).

36 Daniel Montes, “Trial Over COVID-19 Outbreak at San Quentin State Prison That Left29 Dead to Begin Thursday,” BAY CITY NEWS, May 20, 2021.Euthanize the Death Penalty AlreadySPRING 2024 193

37 Megan Cassidy and Jason Fagone, “Coronavirus Tears through San Quentin’s Death Row;
Condemned Inmate Dead of Unknown Cause,” SAN FRANCISCO CHRONICLE, June 25, 2020,
www.sfchronicle.com/crime/article/Coronavirus-tears-through-San-Quentin-s-Death15367782.php.

38 Patt Morrison, “California Is Closing San Quentin’s Death Row. This Is Its Gruesome
History,” LOS ANGELES TIMES, Feb. 8, 2022.

39 Aviram & Newby, supra note 7; George Skelton, “In California, the Death Penalty is Allbut Meaningless. A Life Sentence for the Golden State Killer Was the Right Move,” LOSANGELES TIMES, July 2, 2020.

40 Quoted in Michael Cabanatuan, “Santa Clara County DA Jeff Rosen No Longer to SeekDeath Penalty,” SAN FRANCISCO CHRONICLE, July 22, 2020.

41 Alexandra Meeks and Madeline Holcombe, “New Los Angeles DA Announces End to
Cash Bail, the Death Penalty and Trying Children as Adults,” CNN, Dec. 8, 2020.

42 “Death Penalty Info: ACLU Study: Los Angeles Death Penalty Discriminates Against
Defendants of Color and the Poor,” deathpenaltyinfo.org/news/aclu-study-los-angelesdeath-penalty-discriminates-against-defendants-of-color-and-the-poor.

43 Paige St. John, “The Untold Story of How the Golden State Killer Was Found: A Covert
Operation and Private DNA,” LOS ANGELES TIMES, Dec. 8, 2020.

44 State v. Gregory, 427 P.2d 621 (Wash. 2018).

45 “Death Penalty Info: Delaware,” deathpenaltyinfo.org/state-and-federal-info/state-by-state/
delaware.

46 “Death Penalty Info: New Hampshire,” deathpenaltyinfo.org/state-and-federal-info/stateby-state/new-hampshire.

47 “Death Penalty Info: Colorado,” deathpenaltyinfo.org/state-and-federal-info/state-by-state/
colorado.

48 “Death Penalty Info: Virginia,” deathpenaltyinfo.org/news/virginia-legislature-votes-toabolish-the-death-penalty.

49 Sarah Schulte, “20 Years After Commuting 167 Illinois Death Sentences, Ex-Gov.
George Ryan Has No Regrets,” ABC7 CHICAGO, Jan. 10, 2023.

50 HADAR AVIRAM, YESTERDAY’S MONSTERS: THE MANSON FAMILY CASES AND THE ILLUSION
OF PAROLE (2020).

The Perfect, Yet Again, Is the Enemy of the Good: LWOP Edition

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.

Adelson Family’s House of Cards Falls Apart

Today marks a new episode in the quest to hold the Adelson family accountable for my colleague and friend Dan Markel’s murder. On November 6, Charlie Adelson, Dan’s brother-in-law, was convicted of murder; he was the one who enlisted his girlfriend, Katie Magbanua, who in turn enlisted the father of her children, Sigfredo Garcia, to commit the murder. Garcia and his accomplice, Luis Rivera, were caught after surveillance tied them to a silver Prius that followed Dan on the morning of his murder. Rivera accepted a plea deal and testified against Sigfredo and Magbanua.

One of the arguments death penalty supporters sometimes make is that, even if no one is sentenced to death, it is important to keep it on the books in order to use it as a bargaining chip for a confession. Ilyana Kuziemko’s 2006 study of this phenomenon in New York (exploiting the natural experiment of its reinstatement in 1995) found that the threat of death penalty leads defendants to accept plea bargains with harsher terms, but does not increase defendants’ overall propensity to plead guilty. The risk of innocent people pleading guilty is exemplified in this short piece by Claudia Salinas. And indeed, Magbanua did not break down when offered this deal, and refused to flip against Charlie. Eventually, when Charlie was indicted and tried for the murder, Magbanua did testify. In this recap she explains why she did it: “Because to give up Charlie, I had to give up the father of my children, and I couldn’t do that[.]”

Charlie’s version of the events was that Garcia and Rivera, through Magbanua, committed the murder on their own accord, in order to blackmail him. Not only was this theory implausible–why go through the trouble of killing someone they didn’t know? Why not threaten to kill Charlie himself?–but it was also contradicted by Charlie’s affectionate relationship with Magbanua and a conversation they had at a restaurant in 2016, in which they colluded about what to do regarding an extortionist (who did not exist; it was a police sting designed to make them talk.)

The latest threat to the Adelsons’ house of cards came on Monday, when Donna (Charlie and Wendi’s mother) was arrested at the airport as she and her husband, Harvey, were trying to flee to Vietnam (which does not have an extradition treaty with the United States). Here is Donna’s arrest affidavit:

I’m trying to read the affidavit with a defense attorney’s eye. Donna’s movements and phone contacts on the day of the murder are far from conclusive proof of her involvement. It would make sense for her to repeatedly contact family members on the day of a shocking event (the murder of a much hated son-in-law). But I think it’s notable that she talks to Charlie more than she talks to Wendi who, presumably, would be more affected by the death of her ex-husband.

The strongest evidence against Donna, it seems, are the conversations she had with Charlie after receiving the fictitious extortion letter. While the transcripts show she was afraid and stressed, and willing to pay the extortionist to go away, a defense attorney will probably argue that these actions were in defense of her son, as she might have learned about the murder after the fact and wanted to protect her family (the words “it concerns both of us” are quite damning, but I suspect a defense attorney would argue that they stem from identification with her son.) But you be the judge: Episode 5 of the podcast Over My Dead Body contains detailed footage of the conversations between Charlie and Donna (fair warning: even though the podcast is extremely well done, and very respectful toward the Markel family and Dan’s friends, it is jarring and upsetting to listen to a popular culture repackaging of a tragedy that took the life of someone you know.)

On a personal note, just as with the previous waves of arrests for Dan’s murder, I find that Donna’s arrest brought me peace of mind, and don’t feel invested in the sentencing phase. However, I continue to follow this up and will post more on this as things develop.

Richard Glossip’s Execution On Hold Again; and Wrongful Conviction Shenanigans

A horrendous Talmudic story tells of a wrongful conviction and its aftermath. Against the backdrop of the bitter civil conflict between the Phrarisees and the Sadducees,[1] Rabbi Yehuda ben Tabbai, who was President of the Sanhedrin, looked to score a political point by sentencing a conspiring false witness from the rivaling faction to death. It turns out, however, that he was mistaken, and his Sanhedrin counterpart, chief justice Shimon ben Shatah, quoted the appropriate rule:

Conspiring witnesses are not executed unless they are both found to be conspirators; if only one is found to be a conspirator, he is not executed. And they are not flogged if they are liable to such a penalty, unless they are both found to be conspirators. And if they testified falsely that someone owed money, they do not pay money unless they are both found to be conspirators.

Hagiga 16:2

But it was too late; the witness had already been executed. Rabbi Yehuda admitted his mistake and would never again rule on a legal point except in the presence of Shimon ben Shatah. Some sources claim that he consequently yielded his Presidency of the Sanhedrin. And his remorse was grave:

All of Yehuda ben Tabbai’s days, he would prostrate himself on the grave of that executed individual, to request forgiveness, and his voice was heard weeping. The people thought that it was the voice of that executed person, rising from his grave. Yehuda ben Tabbai said to them: It is my voice, and you shall know that it is so, for tomorrow, [i.e., sometime in the future,] I will die, and my voice will no longer be heard.

Hagiga 16:2

Looks like folks on the Oklahoma Court of Criminal Appeals [2] could take a page off Yehuda ben Tabbai’s book. My colleague Roy Peled just sent me the astonishing news that Richard Glossip–yes, the petitioner in Glossip v. Gross whose petition against the use of midazolam was rejected by the Supreme Court–has just had his execution halted. The CNN story exposed me to something I had not realized when reading the SCOTUS case: Glossip is widely believed to be innocent and Oklahoma’s Attorney General, who reviewed the case, does not stand behind the conviction. Here’s more on this (the italics are mine):

The latest round of litigation was brought to the Supreme Court by Glossip, with the support of the Oklahoma Attorney’s General office, who asked for his May 18 execution to be set aside.

The emergency hold on his execution will stay in place while the justices consider his request that they formally take up his case.

Glossip has maintained his innocence, having been convicted in 1998 of capital murder for ordering the killing of his boss.

A review launched by Oklahoma Republican attorney general found that prosecutors had failed to disclose evidence to Glossip that they were obligated to produce and that the evidence showed that the prosecutors’ key witness – the supposed accomplice of Glossip’s who committed the murder – had given false testimony.

Despite Oklahoma’s assertions that it could no longer stand by Glossip’s conviction, the Oklahoma Court of Criminal Appeal declined Glossip’s request that his execution be halted.

In their filings with the US Supreme Court, Glossip’s attorneys argued that – in addition to the obviously irreparable harm he would suffer if the execution moves forward – Oklahoma “will also suffer harm from its Department of Corrections executing a person whom the State has concluded should never have been convicted of murder, let alone sentenced to die, in the first place.”

Query: how is it possible that, despite the state’s inability to stand by the conviction, Oklahoma’s supreme appellate instance thinks that executing Glossip is fine?

Answer (via the Associated Press): Glossip’s case “has been thoroughly investigated and reviewed,” with Glossip given “unprecedented access” to prosecutors’ files, “Yet he has not provided this court with sufficient information that would convince this court to overturn the jury’s determination that he is guilty of first-degree murder and should be sentenced to death,” according to the ruling written by Judge David Lewis.

So much to be amazed at here, not the least of which is that the issue of Glossip’s actual innocence didn’t quite come up in Glossip v. Gross. There, just a brief time after midazolam played a horrendous part in the botched execution of Clayton Lockett, Justice Alito saw no problem with continuing to use it in Oklahoma executions, because Glossip couldn’t show that Oklahoma had a better option that midazolam (what kind of an argument is that? Is he a chemist? And anyway, do you know what’s better than midazolam? Death penalty abolition, that’s what). But at no point did the decision venture into actual innocence territory, which makes me wonder: would SCOTUS be less tolerant of midazolam if they were aware that Oklahoma’s top prosecutor is unwilling to stand by Glossip’s conviction? Not that questions of humane execution should be decided on the basis of innocence or guilt, but looking at this from the perspective of death penalty supporters who believe it is administered fairly, wouldn’t a credible wrongful conviction claim give you pause? Not even a bit?

Then there’s Oklahoma’s Criminal Court of Appeals, which seems unperturbed by a conviction that the state itself finds worrisome enough to disavow. Is finality really that important?

Let’s keep tabs on this case as it progresses.

[1] At some point I’ll write more about this bitter conflict – I’m reading Flavius Josephus’ commentary on the last days of Judah, and finding it an astute, sobering analysis of social movements, civil conflict, mainstream/radicalism discord, and the destructive force of church/state disputes.

[2] Oklahoma is unique in that its Court of Last Resort is split into two courts: the Oklahoma Supreme Court handles civil appeals, and the Oklahoma Court of Appeals handles appeals from the District Courts. For more, see here.

A New Life for Death Row

“Of what shall a living man complain, each man for his sins?” (Lamentations 3:39).
“Of what shall a living man complain?” – it is sufficient for him that he is alive. Rabbi Levi said: The Holy One blessed be He said: Your life is in My hands, yet you complain? Rabbi Huna said: Let him stand like a mighty one, confess his sins, and not complain. Rabbi Berekhya said: Of what shall he complain about the One who gives life to the worlds? If he seeks to complain, it should be each man for his sins.

Eikhah Rabbah 3: 13

There’s a superb story in this morning’s Guardian by Sam Levin about what Gov. Newsom’s Quentin “Scandinavization” means for the people on death row. Levin had incredible access and interviewed some fascinating people, whose voices we almost never see in print: the people on death row themselves, who are coming to terms with an unfathomable change in their lives and future prospects. It may surprise those of us unfamiliar with death row that the change is not universally celebrated, and that some people feel downright dread about the prospect of being surrounded by people and other stimuli. Some express serious concerns about being transferred away from their family and lawyers. Others are thrilled with the new experiences, including those of the natural world, even as they are reeling from them:

Leaving death row was immediately overwhelming. His group of about a dozen men, heading to a prison outside Los Angeles in July 2021, made a brief stop in the Central Valley, and as they stepped off of their bus, many of them froze in their tracks, he said.

For the first time in decades, they were standing on grass.

When they explained to a guard why they were so stunned, the officer allowed them to walk to an even lusher patch of grass nearby. “We just marveled at the softness and the smell of the grass and the earth. It was remarkable. The officer let us stand there and watch as we left our footprints in the grass. It’s just an amazing thing that people take for granted.”

At their new prison, Correll Thomas, 49, who had been on death row since 1999, experienced sensory overload: “On the yard, it’s just movement – people running laps at different speeds, people doing push-ups and exercising, someone’s throwing a football back and forth, people playing soccer while others are playing football. I was keeping my head on a swivel, trying to take in as much as I can, turning right to left every two seconds. On death row, we don’t have such fast movements.”

This stuff–the opening of possibilities for people whose life was entirely doomed–is huge. It’s a scenario I’m intimately familiar with, because of my work on members of the “Class of ’72” and their parole hearings. In 1972, the California Supreme Court decided People v. Anderson, which found the death penalty unconstitutional because of its barbarism. The decision would be publicly lambasted and later reversed, and the death penalty would return in 1978, but the people who were on death row at the time–including Charles Manson, Dennis Stanworth, and Sirhan Sirhan–had their sentences commuted. Life with parole was not an option at the time, and so, all these people, who were not supposed to see the light of day, started coming up for parole in the late 1970s.

All the parole hearings I’ve looked at from the early 1980s reflect a sense of great public panic about the prospect that these folks would receive what was considered the standard sentence for murder at the time–fifteen years or so at most–and the sense of urgency to keep them behind bars. I wouldn’t be surprised if the rapid and considerable increase in the average length of a sentence for murder was because of the concerns about disproportionate punishments in these high-profile cases. Which raises a really interesting question: if you were supposed to be executed and you’ve had a reversal of fortune, are you supposed to just be grateful and roll with the punches of absurdity at the parole board? If you’re then barred from taking any programming because of protective segregation or whatnot, should you just shut up and say thank you, because you weren’t going to receive any programming anyway? Or are we willing to revise our opinions about people’s fates over time.

My colleague Alessandro Corda drew my attention to a new and intriguing development in retributivism: Julian Roberts and Nethanel Dagan propose revising our notions of just deserts. Rather than a “static” assessment of severity, conducted and calcified at a particular point in time, they propose a “dynamic censure” model, which is flexible to changes in censure that occur as time passes. Here they explain this model in their own words:

According to the dynamic model, the amount of censure that an offender deserves for his crime may change in response to certain acts of the offender. Sensitivity to some post-offence and, particularly, post-sentence behaviour thereby becomes internal to assessments of (continuing) deservedness of punishment. According to what we term ‘ static ’ desert, post-offence conduct does not affect the seriousness of the crime or the offender ’ s culpability for the offence. Under a purely desert-based sentencing rationale, the focus of the sentence is, therefore, tightly drawn upon the culpable act or omission. The offender’s general lifestyle and his actions after the commission of the crime should carry no weight. They are not seen as affecting an offender ’ s culpability and are therefore excluded from the sentencing equation.

A responsive censure-based approach, however, necessarily expands the ambit of inquiry at sentencing. Penal censure engages the offender in a more clearly communicative manner. Andreas von Hirsch and Andrew Ashworth capture the essence of the concept in this way: ‘ The punishment conveys to the actor a certain critical normative message concerning his conduct … this message treats him as a moral agent – that is an agent capable of moral deliberation ’. These authors further note that ‘ When the offender is thus censured, a moral response on his part is deemed appropriate ’ , but then suggest that ‘ The censure, however, serves only to give the actor the opportunity to make such a response ’ . Yet does it make sense to provide offenders with an opportunity but to then remain oblivious to whether they avail themselves of the opportunity ? We argue that the censuring authority should be attentive to the fruits of the offender ’ s moral deliberation, as they may affect the degree of censure that is (or remains) appropriate.

Even more importantly, a responsive censure approach draws the sentence administration phase into the purview of desert-based punishment. Desert theory contains restraining arguments for the punitiveness of the state, such as the ‘ drowning out ’ argument, progressive loss of mitigation for repeat offenders, the principle of parsimony, and related decremental penal strategies. However, desert theory fails to offer any restraints on the severity of punishment after sentencing, no matter what offender does thereafter. The punishment phase itself – which can last for years and even decades, sometimes for an offender’s entire natural lifespan – creates a normative ‘ vacuum ’ for desert theory. In contrast, we argue that a responsive censure-based account offers an important resource for evaluating the degree of deserved punishment into the administration of the sentence.

Roberts J. & Dagan N. (2019). “The Evolution of Retributive Punishment: From Static Desert to Responsive/Dynamic Penal Censure.” In: A. du Bois-Pedain & A. Bottoms (eds.) Penal Censure: Engagements within and Beyond Desert Theory, pp. 141-159 Oxford: Hart.

One possible critique of Roberts and Dagan’s groundbreaking article is that they are doing nothing more than articulating utilitarian reasons, such as rehabilitation, within the retributive framework. To which one might answer: Why is that a bad thing? If a person manages to avail herself of rehabilitative options, isn’t that as much a statement of the rebalancing of good and evil in their case as it is of their future reentry prospects? I think one can make a case about both. This also helps explain why, for example, I feel differently about the release prospects of Sirhan Sirhan and Yigal Amir. The former has been in prison for 55 years, improved himself in countless ways, picked up far fewer disciplinary write-ups than one would expect for such a long incarceration, and expressed serious contrition and a change of heart about terrorism and about violence as a solution for the world’s problems. The latter has been inside less than 30 years, expresses no contrition whatsoever, and is pretty much the same person he was when he went in. Even from a purely retributive perspective it feels like one of these people is more deserving of freedom than the other.

I think it’s fair to read the Guardian piece with an open mind, without drawing comparisons between life on death row and life in general population. There is only one road in your life, and that’s the road your life ends up taking. Gratitude is always a wonderful thing to feel and express, but there is plenty to fix in general population and in the parole process as well. Where someone should or should not have ended up is far less important then where they actually are. Let’s fashion our policy to acclimating these folks to the yard accordingly.

Sirhan Sirhan, Yigal Amir, and the Place of Retribution on Parole

A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal.

Mishna Makkot 1-10

So too for those who are liable for capital punishment or lashes: their death or lashing does not atone for them until they repent [do teshuvah] and confess verbally [do vidui].

Mishne Torah LaRambam, Repentance 1:1

It’s hardly debatable that Richard Nixon’s presidency was a watershed moment in American criminal justice. Even the scholars who point to punitive tendencies among his predecessors will admit that Nixon’s presidential campaign highlighted crime—and particularly judicial permissiveness in the face of rising crime rates—as a key political issue, and that his presidency made good on the promises to become tougher on crime.

Having lived under this regime for 50 years, it’s hard to speculate what our system would look like if Nixon had not been elected. We did come very close: Nixon’s most promising challenger for the presidency was Democratic Senator Robert Kennedy, well-respected and admired, and a former Attorney General. But shortly after Kennedy announced his victory in the California Democratic Primary at an event at the Embassy Hotel, a young Palestinian refugee, Sirhan Sirhan, darted toward the Senator and fired several shots from his revolver. Kennedy was killed and four other people were injured by the gunfire.

Sirhan was sentenced to death, but experienced a stunning reversal of fortune. In 1972, the California Supreme Court found the death penalty unconstitutional, and the 107 people on death row at the time–including the Manson family members and Pinole murderer Dennis Stanworth–had their sentences commuted to life with parole. By the time California brought the death penalty back in 1978, alongside the option of life without parole, the “Class of ’72” people were already preparing for their upcoming parole hearings. One of them was Sirhan Sirhan.

Almost immediately after his arrest, and throughout his trial and incarceration, Sirhan was interviewed by many psychiatrists. They noted his traumatic childhood in Palestine, his harrowing journey to Jordan as a refugee, the horrendous violence he witnessed as a young child. They identified psychosis and paranoia. But by the mid-1970s, he seemed to settle down, to the point that the parole board–on par with how things were done in those days–sat down to set a parole date for him. They settled on 1984; 16 years was plenty for first-degree murder back in those days. If this seems oddly lenient to you, keep in mind that Sharon Tate’s family members thought it would be an uphill battle to keep the Manson girls behind bars in 1978.

Sirhan’s early hearings in the late 1970s were basically status conferences, which followed up on his rehabilitative journey in prison. But things took an interesting turn in 1982. On April 26, a Monday, the parole board convened for a week-long hearing in his case, whose purpose would be to determine whether to rescind his 1984 parole date.

The impetus for this unusual step was threefold. First, as Sirhan’s release date approached, the Board faced unexpected gale force winds of public disapproval. The Commissioners received of 3,961 letters; 8,127 signatures of petitions; and 50 city and county resolutions requesting the recission of Sirhan’s parole date. The November 1981 assassination of Egyptian president Anwar Sadat, on the heels of his historical peace agreement with Israel, reminded the public of yet another anti-Israel act of terrorism, spurring these letters on and drawing connections between the two acts.

Second, the Board explained, new evidence had come to light that called into question the prior portrayal of Sirhan as a docile, rehabilitated inmate. The information included a Playboy article called “inside Sirhan”, as well as numerous threatening letters Sirhan had sent from prison to various individuals, and documentation of his threatening personality in his central file. “Generally,” the Commissioners explained, “the information specified above alleges that Sirhan has made threats against various people, and that he has exhibited other behavior indicating that he is not suitable for parole.”

The third ground for the hearing, however, was legal: the board maintained that its 1975 predecessor, which set Sirhan’s 1984 date, erred in exercising its authority. The question for discussion would be: “[D]id the parole granting panels fail to exercise independent discretion in finding Sirhan suitable or in establishing a period of confinement? The panel’s failing to consider the nature of the offense and the victim in finding Sirhan suitable for or in establishing a period of confinement.” The Board answered this question in the affirmative: they claimed that the 1975 Board abused its discretion by “fail[ing] to appreciate and fully assess the magnitude of the crime for which Sirhan was convicted.”

Sirhan’s attorney, Luke McKissack, balked at these reasons for recission. All the details about Sirhan’s crime, its seriousness, and its magnitude, he said, were widely known at the time of his trial and had no place at his parole hearing. As to Sirhan’s presumably threatening behaviors, McKissack explained, they should be understood in the context of his traumatic upbringing and unusual confinement situation. McKissack recounted some of Sirhan’s traumatizing experiences in Palestine—killings, mutilations, and mass atrocities, which “Sirhan, at four years of age, obviously would be affected by seeing that kind of violence.” He also explained that Sirhan’s threats should not be taken seriously: his 14 years in protective custody “could be the equivalent of twenty or twenty-five years for somebody else. . . from the onset he knew that anybody might kill him” and his threats should be seen as what they were: the airing of frustrations made “ten years ago when Sirhan was depressed, psychologically disturbed and reflective of that situation and not as high-powered as the district attorney makes it out to be.” During those years, McKissack explained, Sirhan witnessed other people—some convicted of multiple murders—being paroled, and it was understandable that he was frustrated and felt that he was singled out: “It doesn’t seem to me that in order to qualify for being paroled, that a person has to think that everything that occurred to him in life is fair.” Sadat’s assassination, he said, had nothing to do with Sirhan, who was being scapegoated: “In 1982, in an election year, with international events out of control, everybody is frustrated. It’s: Find someone to jump on.”

The Board was undeterred. On April 27, 1982, the Commissioners interrogated their predecessor, James Hoover, a member of the committee that set Sirhan’s original parole date. The resulting exchange reads like a remarkable showdown between the rehabilitative, professional, low-key logics of 1970s parole decisions, and the much more emotional and political tenor these decisions would reflect in the 1980s. Hoover had no love for Sirhan, obviously, but he thought his job was to judge Sirhan impartially on the basis of his prison performance:

Brown: It was your impression from 75-20 that everyone had to have a parole date set?

Hoover: That was my impression, as long as there was no negative factors in file.

Brown: Initially you could find no reason to deny the setting of the parole date?

Hoover: I could find no reason. I might mention in my own mind that I wanted to find a reason. . .

You have got to remember that our median time for murder first was only about fifteen years. So that means we had an awful lot of low cases and an awful lot of high cases. . . our legislature in their great wisdom did not say, “Well, if you shot a Senator you ought to do so many years. And if you shot Jose Gonzales down in the barrio, you only do this many years”. . . At that period of time this was what was acceptable. It may not be acceptable today, but at that period of time that was the guidelines. And my feeling was, there was nothing to justify. . . I thought that was ample punishment picking that period of time, that time in space of society and what people expected.

Hoover didn’t want Sirhan to walk, but he did what he thought was his job:

W]hen I saw [the psychiatrist], I said, first thing out of my mouth, ‘Shit. This son-of-a-bitch ain’t going nowhere.’ That was just—it was the flash that came up. And then I think she said, ‘Well, show me why not.’ And that’s when I went to the file. I thought, certainly I’ll be able to have all these negative things in file. I mean, it was just set in my mind. I just walked into it and without review, just off the top of my head.

Hoover’s 1982 colleagues, needless to say, did not see eye to eye with him on this. They rescinded his date, citing not only his threatening behavior but also the 1975 Board’s mistake in discounting the magnitude of his crime. The New York Times story about the recission features clearly retributive rationales:

‘’The people of the world will breathe a sigh of relief tonight because Sirhan will remain in prison,’’ said District Attorney John Van de Kamp of Los Angeles, who had pushed for canceling the Sirhan parole date. ‘’The message must be sent out in clear and unmistakable terms that political assassination will not be tolerated in this society – and those who engage in it must pay the price.’’

‘’He deserves never to be set free,’’ said State Treasurer Jesse Unruh, who as the California manager of Robert Kennedy’s campaign for the 1968 Democratic Presidential nomination was present when the New York senator was shot. ‘’I’ve been battling that parole date since 1975.’’

As we all know, Sirhan, who is now 79 years old, remains behind bars. In 2021 he was recommended for parole, but Governor Newsom reversed; in 2023 he was again found unsuitable for parole. In his last few hearings–probably to heed the California Supreme Court’s admonishment in Lawrence–the Board stopped citing the magnitude of the crime and started giving us, instead, the usual parole word salad about insight and accountability and looking inward, the whole psychic excavation enchilada. But the archaeology of the hearings plainly shows what happened: as of 1982, the parole board started seeing itself responsible not just for assessing the parole candidate’s prison journey, but for curating and appeasing the public sentiment about his or her crime.

To be honest, I’m not sure retribution has no place in release decisions. While working on Sirhan’s parole hearings, I repeatedly thought of another political assassin: Yigal Amir, the third-year Israeli law student who assassinated Prime Minister Itzhak Rabin. In 2023, it is hard to not see Rabin’s assassination as the watershed moment that ushered Binyamin Netanyahu’s ascendance to state leadership and, as Israel faces a severe constitutional crisis that threatens to disproportionately affect Palestinians and other non-Jews, to balk at the possibility that Amir should ever be paroled. In the following video, an excerpt from an excellent satirical show called The Chamber Quintet, actor Rami Heuberger depicts Yigal Amir. He smiles at the camera and said, “in twenty years, I’ll receive clemency. You know that’s true. Deep inside, you know it.” The effect is chilling:

The prospect of parole, clemency, or a pardon for Amir is not farfetched at all under the auspices of Israel’s 37th Government. Would that really be so much more horrible than a parole for Sirhan? What about when Amir is 79 years old? I’m not sure. But I also feel that we need to talk honestly about the role, if any, that retribution should play in parole decisions, and about the extent to which we entrust Board members to properly calibrate the resulting punishment in the face of political and social considerations and public upheaval. In any case, I find it poignant that Sirhan became a victim of the era of punitiveness that he ushered with a bullet.

Newsom Announces Quentin “Scandinavian” Revamp

Big news regarding San Quentin today: Gov. Newsom announced a complete reorganization of San Quentin as a rehabilitation and training center, along the lines of Scandinavian prisons. Nigel Duara of CalMatters reports:

Gov. Gavin Newsom is expected to say that the state will spend $20 million to begin the reorganization of San Quentin State Prison from an institution that houses 3,300 incarcerated people at a high-security site on the San Francisco Bay to a “center for innovation focused on education, rehabilitation and breaking cycles of crime.”  

The new plan would complete the closing of death row and shut a Prison Industry Authority warehouse. The facility would be renamed the San Quentin Rehabilitation Center. 

Some of the larger questions about the reorganization will remain unanswered until the prison’s advisory committee decides them, including which imprisoned people are eligible for the rehabilitation center. 

The new facility will also offer job training, according to the governor’s office, though the advisory committee will have to decide for which jobs inmates will be trained. In prisons in other states that emphasize vocational training, the jobs include plumbing and long-haul trucking. 

The plan for the new facility is modeled on prisons in Scandinavian countries, including Norway, which significantly improved its rate of recidivism from 60%-70% in the 1980s to about 20% today when it began to allow prisoners more freedom and focused its prisons on rehabilitation. 

In those prisons, incarcerated people can wear their own clothes, cook their own food and have relative freedom of movement within the prison walls. That model has taken root in states as disparate as deep-blue Connecticut and deep-red North Dakota. 

Drawing inspiration from Scandinavian facilities is nothing new, and in fact, continues a trend that AMEND SF have begun in partnership with Norwegian prisons. Here’s an interesting report on the CDCR website about a trip some custodial staff took to Norway and what they learned from it. They’ve also brought Norwegian custodial staff to CDCR and to prisons in Washington State to inspire improvements in correctional culture.

It’s important to keep in mind that not all is peachy in Scandinavian criminal justice. In her book Nordic Nationalism, Vanessa Barker highlights the price of preserving a humanist welfare state–gatekeeping against immigrants. Keramet Reiter, Lori Sexton and Jennifer Sumner also wonder about the extent to which the humane and rehabilitative treatment of prisoners in Denmark can be imported to the United States given the difference in political cultures. And, in their fieldwork, they ask and answer some complicated questions about the Danish prison experience:

First, we find that harsh punishment can and does exist in Danish prisons.They are not, after all, uniformly humane; there are scratches in the “polished glass” and certainly reasons to resent the system. Second, the “responsibilization,”which Larson describes (and which, we argue, is fundamental to modern incarceration), can only be enacted through staff and institutional frameworks, which necessarily impose limits on individual freedoms. The particular ways that prisoners and staff describe the negotiation of limits—in the context of both open and closed prisons in Denmark—sheds light on the shortcomings of ScandinavianExceptionalism as both a substantive explanatory model as an ideological agenda that other countries might emulate.

A possible answer to this might be–duh, it’s prison. If it takes you out of your ordinary life against your will, it will involve *some* form of suffering. But I think there’s something else we have to ask ourselves.

I suspect that the energy behind the proposed Quentin overhaul–which, if it comes to fruition, will be overall a welcome development–has a lot to do with the Quentin COVID-19 disaster that we cover in FESTER. Yes, the physical plant at Quentin requires special attention because it is dilapidated and almost 200 years old, and basically allows disease to run rampant. But at the same time, it was no wonder that when CDCR tried to address COVID with transfer policies many people fretted and objected. As we explain in the book, Quentin benefits immensely from its location in the Bay Area, near nonprofits, universities, and a plethora of progressive do-gooders. Which means that, if you want to make parole, this is the place that will offer you the kind of programming and positive reports (“chronos”) that the parole board wants to see. People from all over the state jostle to try and get to Quentin. Investing even more in making Quentin a jewel of enlightened incarceration will make these disparities even worse.

This is not a good reason, of course, not to change things. But it is a good reason to rethink how things are going in the system as a whole. Given what we know about the practicality of population reduction–namely, that you could release 50% of CA’s prison population tomorrow without an appreciable rise in crime if the political good will was there–shouldn’t we try to spread the love toward Susanville and Central Valley, where lifers are parched for programming? And wouldn’t it do wonders for everything prison related–health-care, rehabilitation, the works–if there were overall fewer people in the system? If each prison, individually, were populated to 50% of design capacity, and this were the norm, wouldn’t that free up resources and professional attention to invest in Denmark-izing other prisons beyond the Bay Area?

Impending Closure of Death Row

A couple of days ago I spoke on KCRW about the announced closure of death row at San Quentin. Here’s the story as it appeared on the KCRW website, followed by some additional thoughts from me:

***

Governor Gavin Newsom announced this week a plan to shut down the notorious death row at San Quentin State Prison. The plan would move the prison’s most condemned inmates to other maximum security prisons over the next two years, in an effort to create what Newsom calls a “positive and healing environment” at the Northern California prison. 

San Quentin has the largest death row population in the nation — nearly 700 total. And while California hasn’t executed anyone in more than 15 years, Newsom also signed an executive order imposing a moratorium on executions in 2019. 

The facility was originally a ship, and in the mid 19th century, prisoners themselves built the prison, explains UC Hastings law professor Hadar Aviram. “It’s a dilapidated facility, there are no solid doors, there are bars on the doors, ventilation is terrible. So it’s a facility that was built for 19th century standards. And just because of inertia, we are still incarcerating people in the same condition.”

She points out that the facility is located in a geographically beautiful area surrounded by expensive real estate. “In many ways, [it’s] a waste to have a prison there where people don’t enjoy the seaview and are incarcerated in terrible conditions.”

However, she notes that people currently aren’t being executed due to the moratorium, and since 1978, the state executed only 13 people, and more than 100 died of natural causes during that time. 

“Just during this moratorium that Governor Newsom introduced, more people died on death row from COVID during the horrific outbreak at Quentin than we executed since 1978. So I’m sure that is giving some pause about the utility of the exercise of keeping people there,” Aviram says. 

Because San Quentin is so old, inmates there suffered from coronavirus more than those at modern and well-ventilated facilities like the state prison at Corcoran, she says. Plus, it houses lots of people who are aging and infirm, who were thus already immuno-compromised and vulnerable to the virus.  

Emotional and political reasons may be driving votes

California voters approved a ballot measure in 2016 to speed up executions, and the measure included a provision allowing death row inmates to be relocated to other prisons where they could work and pay restitution to their victims.

Aviram says over the years, there have been several attempts to abolish the death penalty through voter initiaties, but they always lost by small majorities. 

Through inquiries, polls, and conversations with people, she says she realizes: “People are voting for the death penalty largely for emotional, sentimental, political reasons. They are more in love with a fantasy of having a sentence that’s reserved for the worst of the worst, and can deter people.” 

She describes death row in California as “basically a more expensive version of life without parole that costs us $150 million a year.”

She adds, “It’s probably a good idea to think of the death penalty as undergoing the same process as some of the people who have been sentenced to death, which is rather than an execution, the death penalty is going to die a slow natural death itself, just from disuse and from this gradual dismantling.” 

However, some district attorneys continue asking for the death penalty in capital cases, though the state doesn’t execute people anymore, as they hope the governor might revive the policy, Aviram points out. However, she says, “I think that because of the national trends … it is extremely unlikely that it’s going to come back.”

Newsom’s reimagining of prisons and what’s missing

When the governor says a “positive and healing environment,” Aviram says this means a life where inmates find meaning and usefulness (do some jobs). 

But this doesn’t completely eliminate the death penalty, she says. “Because there is still one very big and expensive piece of the death penalty that is still with us — and that’s death penalty litigation.”

“We have this facility where people are sentenced to death and are still litigating themselves post-conviction, and that litigation is actually the lion’s share of the expense. So it’s only really going to go away if and when all of those sentences are commuted, and these people are no longer litigating their death sentences at the state’s expense. So that is the missing piece.”

***

Some more thoughts: First, it’s been interesting to follow the fanciful, but often idle, talk about the real estate potential of Quentin. Readers who have been to Quentin know how beautiful the village is and how glorious the waterfront vistas are. There are plans to close four prisons, but no definite plans for Quentin. Any prospects of selling that land are to be viewed with ambivalence. On one hand, what a waste to have a prison so close to the water, without windows to enjoy the view – a place that combines suffering with beauty. On the other hand, it would be a terrible loss for the folks housed at Quentin, dilapidated and dangerous as it is, to be strewn about prisons in remote locations in the state, far away from the progressive energy of volunteers and rehabilitative programming richness of the Bay Area that people so desperately need for making parole. In my wildest fantasies, we close Quentin down, transform it into a resort/retreat for nonviolent communication and community healing, rebuild with huge ceiling-to-floor glass walls overlooking the ocean and gorgeous walking trails, and offer all the men well-paying jobs running the resort.

About the money: I predicted much of this demise, based on national trends, in Cheap on Crime, and still think that the deep decline of the death penalty is in no small part due to the financial crisis of 2008. The fact that we still spend a sizable pile of money on death row, despite the moratorium, is not surprising, and shows that the disingenuous efforts to save money via Prop 66 didn’t fulfill their purported purpose. In 2016, when giving talks about this, I used to draw the triangle of home improvement; write in its three corners: good, fast, and cheap; and tell people, “you can have two.” We can’t compromise on having a “good” death penalty (one in which there are no constitutional violations and factual mistakes), and so, it cannot be fast or cheap. The big savings will only roll in when we get rid of the litigation piece.

There’s no better proof that the death penalty is on its last leg than the fact that Joseph Diangelo, the Golden State Killer, was sentenced to life without parole. If not the most notorious and heinous criminal in the history of California, then who? And the logic in Diangelo’s case applies to everyone else–why the death penalty? So they can continue litigating at the state’s expense and die a natural death? Whose interests does this serve?

About the actual job of relocating death row people to other prisons/general population: this is going to be a complicated and delicate job, and my fear is that it will be entrusted to folks who are not tuned in to the complexities. They would be moving people who have been effectively “at home” in solitary confinement in unique conditions, many of them for several decades, into facilities with much younger people and a very different energy. There could be animosities and alliances that are difficult to predict and go beyond crude racial/gang affiliations. This is true, generally speaking, for every prison transfer (long time readers remember the fears and concerns surrounding CDCR’s plan to comply with the landmark decision in Von Staich through transfers to other facilities); in the case of the death penalty, there are other factors, not the least of which is the unique combination of notoriety and frailness of the people to be transferred.

There’s also the question whether dismantling death row, what with its symbolic hold over the Californian imagination, slows down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole), does the effort to abolish the death penalty lose its steam? The uphill battle for activists will be to spin this development to argue that the death penalty has been defanged beyond its utility; now that we’re left with only its negative aspects (to the extent that some people think it has advantages) it’s time to stop hemorrhaging state funds for incessant litigation.

***

Today I’m at the Annual Meeting of the Western Society of Criminology, speaking about FESTER. My panel starts at 8:15am island time in the Waianae room – come say hi!

Series Review: Night Stalker: The Hunt for a Serial Killer

Netflix’s new docuseries about the hunt for Richard Ramirez, known as the Night Stalker, comes to our computer screens at an interesting cultural moment, in which national and state responses to heinous crimes are in flux. As the bicameral Democratic legislature of the Biden administration prepares to get rid of the federal death penalty, the Trump administration finishes its four-year tour of gratuitous cruelty with gratuitous executions happening at the eleventh hour with the blessing of SCOTUS and to the horror of the court’s progressive minority; several people have observed the irony of lethal injections happening at the federal level just as death row people here in CA get the first injection of the COVID vaccine. This throwback to bloodthirstier decades comes as a majority of Americans, for the first time since the sixties, now support life imprisonment over the death penalty. Half the states retain the death penalty and half (growing since the recession) have abolished it or placed moratoria upon its use; if Virginia moves forward with abolition, not only will it be the first Southern state to abolish capital punishment, but also a majority of states will have abolished/sunset the death penalty. Here in California, more people have died on death row from COVID-19 under Gov. Newsom’s moratorium than we have executed since the return of the death penalty in 1978. Ramirez himself–the subject of the new docuseries–was the 85th person to die on California’s death row of natural causes in 2013. And just recently, Joseph DeAngelo, whose horrific crimes as the Golden State Killer are eerily similar to Ramirez’s, was sentenced to life imprisonment, raising the fair question–if not him, then who?

Against this backdrop, the choice to focus now on Ramirez and his heinous crimes is a curious one, and the series does not offer a lot in the sense of narrative or cinematic innovation to justify the subject. The story is told from the perspective of two intelligent and sympathetic LAPD detectives–then-newcomer Gil Carrillo and veteran Frank Salerno–and several retired crime scene technicians, who in four episodes follow through the trail of horrific murders. The still shots from the various murder scenes are enhanced through cinematography that somewhat brings them to life and accompanied by chilling music. Thankfully, at least the victims themselves–both those deceased and those who survived–are portrayed with restraint and respect, and on occasion (albeit not always, which struck me as somewhat distasteful) their relatives comment on their lives, evoking sympathy and humanity. These graceful interview scenes lift the series from a sequence of excessive gore, and I wish there were more of them.

As to Ramirez himself, the show does not delve much into his own mind beyond short, clichéd quotes about the “inherent evil in all human kind” and “Satan [as] a stabilizing presence” displayed between scenes. Having read and watched a lot of the Manson literary and cinematic canon, I think a deliberate choice was made here not to glorify Ramirez in a similar way. At some point, one of the detectives even said that they considered whether Ramirez was a Manson copycat, which strengthens my belief that this approach was carefully considered. The choice not to follow the legacy of Mansonist efforts to delve into the minds of heinous murderers a-la Dahmer, only recently continued with Aquarius and Mindhunter, means the focus of the show is mostly on the police investigation.

But even here, the show’s coverage of the LAPD’s eponymous “hunt” offers some contradictions. Carrillo and Salerno are sympathetic, interesting interviewees; Carrillo’s background is explored in depth, including his early prescient conclusion that seemingly unrelated crimes were perpetrated by the same person. He attributes this insight to a class he had taken, in which Robert Morneau referred to “a deviancy that says, ‘I like to see the frightened look on your face.'” Rather than digging into the motivation, this illuminated Carrillo’s crime scene analyses and explained why the murders were perpetrate in a particular way (i.e., why the killer had waited for the victims to see him, rather than kill them from behind or in their cars.) But at the same time, we get glimpses into what appears to be epic incompetence in interagency collaboration. A golden opportunity to zone in on the killer through a distinctive sneaker shoeprint was wasted, even though only one pair of black sneakers of that brand had been shipped to Los Angeles. Similarly, the opportunity to fingerprint a car that the suspect had touched in the course of a traffic stop was squandered. And amazingly, a clever trap at Ramirez’s dentist’s office did not function. Eventually, Ramirez was caught not by police officers, who allowed him to walk before them unnoticed after his appearance was already well known, but by alert members of the public. The focus on Carrillo and Salerno’s solid crime scene investigation draws attention from the sad conclusion that, had the LAPD had their act together and collaborated, Ramirez would have been caught earlier and lives would have been saved. Having studied the Manson murders in detail, it seems that little was learned since the fiascos of the Tate-LaBianca investigations, which were also characterized by department siloing and insularity (Bugliosi is full of braggadocio about his own heroic role in the case and very eager to throw blame onto the LAPD, but at least in that instance the objective facts seem to support his perspective.)

Even as the focus on audacity, deductive work, and targeted legwork draws attention away from omissions and organizational hurdles, Night Stalker is a reminder of what good policing should be. It is poignant to watch an investigation in the 1980s, with 1980s technology, as the FBI pieces together last week’s insurrection at the Capitol and attempts to track down the perpetrators, a job much easier than Carrillo and Salerno’s because of the plethora of social media evidence and the availability of facial recognition technology. It is also poignant to think about the most recent example of excellence in policing: Capitol police officer Eugene Goodman’s clever, creative, and courageous act of baiting and tricking the mob away from the unguarded door behind which the legislators hid, armed only with a nightstick and facing dozens of angry insurrectionists yelling racial epithets at him. As I’ve said many times before, I don’t think the problem is too little or two much policing; it’s the wrong kind of policing altogether, which relies on crude, humiliating, and ineffective methods like stop-and-frisk at the direct expense of the classic crime solving work features in the Night Stalker. Give me a police force full of Eugene Goodmans, Gil Carrillos, and Frank Salernos, and I’ll be a happy camper. If the show reminds us (and the FBI, and the LAPD) that good policing is valuable and scarce, then it has been a worthwhile endeavor.

Night Stalker: The Hunt for a Serial Killer is available on Netflix.

New Death Penalty Abolition Bill

There’s a new bill, introduced by Assemblymembers Levine and Chiu and coauthored by Assemblymembers Friedman, Gipson, and Stone and Senator Weiner to abolish the death penalty. The bill does not include a retroactive provision to commute current death sentences to LWOP.

The bill will likely pass in the legislature, but because it requires a constitutional amendment it will be on the ballot. This does not have a history of success, as Austin Sarat explains in this book. But since 2016, when we tried this last, six big things have changed, which may improve the odds:

  1. Twenty-two states have abolished the death penalty and three have moratoria on its use. A critical mass of states can now be said to have given it up.
  2. Since the beginning of this pandemic, more people have died of COVID-19 on death row alone than we’ve executed since the death penalty was reintroduced in 1978.
  3. Because of the death penalty moratorium, we won’t be executing anyone else anytime soon – but we’re still footing the bill of death penalty litigation.
  4. The Golden State Killer got life without parole. If not him, then who?
  5. One of California’s major killer counties, L.A. County, will cease to seek death sentences under new D.A. George Gascón.
  6. The recent Trump/Barr killing spree at the federal level has disgusted and reviled millions of people.

I think these developments have altered the landscape considerably enough to merit another try at abolition.