Death penalty is dying across America. Will California save it? | McClatchy Washington Bureau

The last inmate executed in California was 76-year-old Clarence Ray Allen, legally blind and suffering from diabetes, who had his heart stopped with a lethal chemical cocktail as punishment for a triple homicide in Fresno he’d ordered from a Folsom Prison cell a quarter century earlier.

It was more than a decade ago when Allen spoke his last words – “Hoka Hey, it’s a good day to die” – and the poisons flowed into his veins at San Quentin State Prison.

Now, with the death penalty dying across America, the nation is watching California as its voters weigh competing initiatives meant to either revive executions or abolish capital punishment. Several states in recent years ended their death penalties through court decisions or legislation, but California is a test of whether voters think executions are worth trying to save.

“The death penalty system has been so broken for so long in California that it seems there is a uniquely compelling argument for abolition, to say, ‘Let’s just cut our losses,’ ” said Douglas Berman, an Ohio State University law professor and criminal sentencing expert. “If abolition can’t succeed in California I have a hard time thinking that it can succeed by plebiscite anywhere.”

Proposition 62 on the November ballot would end the death penalty and convert the sentences to life without parole. Proposition 66 aims to speed up executions with – among other things – limits on appeals and deadlines on court rulings. Should both measures pass, the one with the most votes becomes law.

California’s decision comes as the death penalty withers in the rest of the nation. There were 28 executions in America last year, the lowest number since the death penalty was reinstated in 1976, and a 70 percent decline from the peak in 1998.

Only six states had executions last year, most of them in the cotton belt. Even America’s execution capital of Texas is slowing down, with a 68 percent decline in inmates put to death over the past 15 years.

A new Harvard University study found that just 16 counties in the U.S.’s 3,143 had imposed at least five death sentences since 2010. Supreme Court Justice Stephen Breyer noted last year that “the number of active death penalty counties is small and getting smaller.”

Reasons include legal challenges to death sentences, botched executions – including a 2011 Oklahoma injection where the condemned man writhed and moaned as it took him more than 40 minutes to die – difficulty obtaining lethal drugs from pharmaceutical companies reluctant to play a role in ending lives, and wrongful convictions.

More than 150 people on death row nationwide have been exonerated since 1973, according to the Death Penalty Information Center, including three in California. Wrongful convictions doomed the death penalty in Illinois, which passed legislation to abolish it in 2011.

States are also balking at costs of a death penalty case and appeals. Lawmakers in conservative Nebraska voted to join the states shedding the death penalty last year, citing expenses and religious objections. The issue will go to Nebraska’s voters in a November referendum.

The death penalty is on hold in California, Arizona, Arkansas, Colorado, Kentucky, Louisiana, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania and Washington state as a result of legal challenges or moratoriums imposed by governors.

Capital punishment has been abolished in eight other states over the past decade and is in limbo in Florida, which has the nation’s second-most-populous death row after California, following a Supreme Court decision striking down the state’s death penalty statute.

Polls find that a majority of Americans still support the death penalty, but the numbers are falling. The Pew Research Center found 78 percent support in 1996 and 56 percent last year.

“The death penalty is in decline by any objective measure,” said Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C.

Sacramento County District Attorney Anne Marie Schubert said that regardless of what was happening in the rest of the nation she saw the death penalty as appropriate justice for the “worst of the worst” killers in California.

“It’s a policy that Californians continue to support but they want the system fixed,” Schubert said.

California voters supported keeping the death penalty in 2012 with 53 percent of the vote. Recent polling suggests this year’s initiative campaign to end capital punishment is struggling to win majority support.

No state has repealed the death penalty by public vote since Oregon in 1964 – and voters there reinstated it in 1978. While courts and legislatures around the nation are abolishing capital punishment, when it goes to a public vote the hard line tends to have the advantage, said Franklin Zimring, a criminal justice expert at the University of California, Berkeley.

“The question is what do you do with the worst criminals you have?” Zimring said. “And if that ever becomes a question of sentiment the answer is boil them in oil.”

California has the largest death row population in the Western Hemisphere, with 746 inmates who are sentenced to die. The nonpartisan Legislative Analyst’s Office estimates that eliminating California’s death penalty would save around $150 million a year, including reduced costs for trials and challenges to death sentences.

According to the study from Harvard’s Fair Punishment Project, five of the 16 U.S. counties in the U.S. that imposed at least five death sentences since 2010 are in Southern California – Kern, Los Angeles, Orange, Riverside and San Bernardino. Riverside County has become the nation’s leader in death sentences – with eight people sent to death row last year alone.

Meanwhile, no one is actually being executed in California.

A federal judge ruled in 2006 that the state’s lethal injection procedures risked a painful and inhumane death. Other legal challenges followed, and the state is now considering a single lethal barbiturate dose to replace the three-chemical method barred by the courts.

Cal-Berkeley’s Zimring predicts the initiative designed to speed executions in California will have minimal impact if it passes. The main result would be litigation and delay, he said, since the ballot measure has so many pieces open to challenge.

That’s disputed by Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento.

“The most important reforms of this carefully drafted initiative are virtually bulletproof,” he asserted.

California’s vote in November will be “hugely significant” in the national debate over the death penalty, said Ohio State University criminal sentencing expert Berman. Politicians and judges pay attention to signals of the public’s view on the death penalty, and the vote of a state like California carries weight.

“If it is a conclusive victory for one side or the other, that could be profound,” Berman said.