The death penalty lives on —

and so should the fight to end it

By ​THE TIMES EDITORIAL BOARD

NOV 16, 2016 ​|​ ​5:00 AM

The interior of the lethal injection facility at San Quentin State Prison is seen on Sept. 21, 2010. (Eric Risberg /
Associated Press)

A majority of California voters peered into their souls on election day and
decided that, yes, ​they are OK​ with the government executing people in their
names. That's tragic, but, as the old saying goes, the people have spoken.
Perhaps even more disappointing than the rejection of Proposition 62, which
would have ended the death penalty, was the passage of Proposition 66, the
competing measure designed to ​speed up​ the death penalty appeals process.
Californians, it seems, not only want to keep the death penalty in place, but
they want to execute people more quickly and efficiently, and give the
condemned less opportunity to appeal their fates. This measure already is
being challenged​ in court ​on grounds​ that it will "impair the courts' exercise of
discretion, as well as the courts' ability to act in fairness to the litigants before
them," among other things. Further court challenges are expected over
potential violations of the constitutional right to due process. So there's hope
yet that the court system might save the state from itself.

Proposition 66 passed on the dubious promise that it would shorten the time
between conviction and execution while saving tax dollars by requiring all
state-level appeals to be completed within five years. It may, but it may not.
After all, it actually adds a new layer to the appeals process. And it relies on a
requirement that appellate-level lawyers take on capital cases even if they have
no interest. And is a five-year limit fair? Note that​ ​156 death row exonerations
since 1973 occurred after an average of 11.4 years, according to the Death
Penalty Information Center.
Rather than sigh and accept that state-sanctioned killings could resume, the
anti-death penalty movement needs to take stock of where it stands and craft
new strategies. Part of that involves determining why a majority of voters
continue to see capital punishment as politically, fiscally and morally sound
despite clear evidence of wrongful convictions, disproportionate targeting of
the poor and people of color, exorbitant costs, and an appeals process that,
while critically necessary, often adds to the arbitrary nature of who ultimately
gets executed.
It's perplexing, particularly, that many political conservatives don't object to
the ultimate in government overreach — killing citizens — nor find it
problematic that the decision to seek the death penalty has less to do with the
nature of the crime than it does with the zeal and politics of a particular
county's district attorney.
Polls show that support for the death penalty nationwide, despite Tuesday's
setback in California and the reinstatement of capital punishment in
Nebraska​, ​is fading​. Perhaps the courts will take notice. After all, in
recognizing the right of gays and lesbians to marry, the Supreme Court
followed shifting national sentiment. Former Chief Justice Earl Warren once
wrote that the court's definition of "cruel and unusual punishment" must
reflect "evolving standards of decency that mark the progress of a maturing
society." So let's evolve, and mature.
The Supreme Court has already ​struck down​ the death penalty once before,
deciding in ​Furman vs. Georgia​ in 1972 that capital punishment was
disproportionately applied to minorities and the poor. But the court revived
the practice four years later in ​Gregg vs. Georgia​, ruling that capital
punishment was not inherently unconstitutional.
So is there a legal challenge that might get a majority of the Supreme Court to
see capital punishment for what it is — an anachronistic act of barbarity?
Maybe. Justice Antonin Scalia was a reliable vote for the death penalty, and
who President Trump nominates to replace him will likely make the difference
in which direction the Supreme Court goes on the issue. Which doesn't leave
much room for optimism, but it's the right fight to keep waging.
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