Image from Flickr via lukey dargons

By Casey Michel

On July 5, 1978, near a lake outside San Diego, Robert Harris walked behind a pair of 16-year-olds, directing them forward. After promising no harm would come to them, Harris shot and killed one, then chased the other behind a nearby rock and shot him four times, then walked back to a nearby car and finished the boys’ unfinished hamburgers. For his crimes, which included kidnapping, burglary, and murder, Harris was sentenced to death in early 1979. Eleven years later, Harris entered a gas chamber, becoming the first individual executed in California since the reinstatement of the death penalty in 1977 (the California Supreme Court had declared the death penalty cruel and unusual punishment in 1972).
Since Harris’s execution in 1990, twelve individuals—all men—have died at the hands of state executioners. California currently has over 700 individuals on death row, idling as they await their final sentence. They wait because six years ago California placed a moratorium on implementing state-sponsored executions. This may finally be the year in which the state’s, and the prisoners’, period of uncertainty ends.

DNA exonerations and national protests–to say nothing of sharing certain capital honors with Iran and China–have all snowballed into creating a nationwide movement, or at least discussion, questioning the merits of the death penalty.

In 2006, citing an inability to obtain necessary licensed technicians, the state postponed all scheduled executions, allowing the prisoners run their sentence in prison while the state sorted out the future of capital punishment in California.
After a half-dozen years of discussion, dissension, and dissemination of mountains of facts and figures—capital punishment has cost the state $4 billion since its 1977 reinstitution—California voters will have a chance tomorrow to become the 18th state to repeal the death penalty. The California electorate will face Proposition 34, a state-wide initiative that would ban the death penalty and replace existing sentences with life imprisonment without the opportunity of parole.
California is certainly not the only state to grapple with both the moral and fiscal overhangs of the death penalty in recent years. As Gallup pointed out last year, national opposition to the death penalty is inching upward. The most recent figures, with 61 percent in favor and 35 percent opposed, represent a 39-year low in support for the death penalty. DNA exonerations and national protests—to say nothing of sharing certain capital honors with Iran and China—have all snowballed into creating a nationwide movement, or at least discussion, questioning the merits of the death penalty.
Mirroring such domestic trends, momentum in California seems to be carried on the side of the pro-repeal contingent. Thus far, the Yes on 34 campaign has outraised their opponents by nearly 200 percent, tallying almost $7 million in donations to the No camp’s $360,000. The pro-repeal campaign’s stable of both donors and endorsers is as long as it is impressive: seven-figure sums have come from both The Atlantic Advocacy Fund and Nicholas Pritzker, CEO of the Hyatt Development Corporation, while endorsers range from Joan Baez to, of all people, Bill O’Reilly.
The anti-repeal campaign has cobbled donations from associations of police officers and security forces, with the largest offered by the Peace Officers Research Association of California PAC. While those endorsing No on 34 campaign maintain legislative appeal–opposition backers include former governors Pete Wilson and George Deukmejian, plus a handful of district attorneys–the opposition’s roster holds little PR punch compared to the Yes group.

But while the electorate have strong visceral reactions, they also have short memory spans.

On counts both financial and endorsed, it would appear that the repeal camp should maintain the upper hand. However, and as opposed to mere electoral races, such discrepancies and differences are not an automatic guarantor of success, especially in instances involving a distinctly socio-moralistic component. For instance, opponents of California’s 2008 Proposition 8, which constitutionally defined marriage as a union of one man and one woman, raised nearly 20 percent more campaign funds than the anti-gay marriage campaign, but still lost by nearly five percentage points.
Thus, it came as little surprise when a mid-September Field Poll showed the electorate split on Prop 34 with 45 percent in opposition, 42 percent support–within the poll’s margin of error. The race appeared, and was expected, to be one of the tightest on Tuesday’s ballot.
Then the bottom fell out.
In late September, a USC/LA Times survey showed support and opposition at a 39/50 percent split, and a SurveyUSA poll in early October, gathering opinion from 539 likely voters across the state and with a margin of error of 4.3 points, saw only 32 percent of those surveyed in favor of passing Prop 34, with 48 percent in opposition. The money was there. The endorsements were in. Even very recent surveys had suggested that more California voters preferred life imprisonment to the death penalty. And yet, polling kept slipping.
Call it the Fowler Effect. Named for Rickie Lee Fowler, the man found guilty of sparking the Old Fire of 2003, one of the most devastating fires seen in Southern Californian history. Fowler, whipped up on methamphetamines, had lofted a lighted road flare into nearby brush. The ensuing blaze torched some 90,000 acres, assessing the state $40 million in reparations and taking the lives of five elderly men. (The five died not from fire-induced injuries but, rather, from heart attacks in the ensuing evacuation.)

Fowler was finally sentenced last August. For his drugged-out transgressions—and in light of testimony pegging Fowler to numerous violent rapes while in prison—the jury, in early October, sentenced Fowler to be the 725th person placed on the state’s death row. The conviction came down, notably, at the same time as the aforementioned SurveyUSA poll, where support for death penalty repeal in place abruptly dropped, despite the efforts of the repeal campaign.
Facts and figures had been behind the support for the repeal; with the Fowler story, an individual turned the campaign on its head. Fowler gave the anti-repeal camp an emotional, personal story, and the polls, sliding with each subsequent survey, reflected this new perception.

This round’s not really about a morality issue—it’s a cost issue.

“I’m not surprised that support for repeal took a hit,” said Laurie Levenson, a law professor at Loyola Law School, where she leads the Project for the Innocent. “Fowler was just a wretched person, was raping cellmates, and he became poster boy [for the death penalty]. That’s the problem with having any sustained repeal measure, because now people say, ‘Oh, maybe he should get it.’”
But while the electorate have strong visceral reactions, they also have short memory spans. As October marched along, Fowler’s case receded, and the pro-repeal camp’s war chest began to outpace lingering news coverage. Endorsements continued to roll in. Once more, just as had been the case during the months pre-Fowler, financial concerns began to resonate with California voters.
“This round’s not really about a morality issue—it’s a cost issue,” says Levenson. “The pitch this time [from the repeal camp] is that when we can’t fund our schools, can’t fund our highways, why are we funding this program that already has these exorbitant costs?” A report from 2011, authored by Judge Arthur Alarcon and Prof. Paula Mitchell, found that switching those on death row to life imprisonments without parole–as Prop 34 would accomplish–would save the state $170 million per year, tallied to $5 billion over the next two decades.
The rhetoric–that is, emphasizing the financial burden capital punishment has placed on the state–seems to be working. The most recent poll staked the pro-repeal campaign with a 45/38 percent lead, its first advantage of the campaign.
Such tightening is not, perhaps, quite the surprise it may initially seem. After all, previous initiatives—such as Prop 8 (which rescinded gay marriage rights in the state) and 19 (which would have legalized marijuana)—saw abrupt closures in any polling gaps in the final weeks before the election. Both elections ultimately preserved the conservative status quo. This proposition, if it were to pass, would shift California’s legal structure in a new, markedly liberal direction.
“I don’t know what’s going to happen, but this is the most traction I’ve seen the death penalty repeal get in decades,” Levenson noted. “We can’t shorten the process. We can’t take shortcuts. There’s too much at stake.”  

Casey Michel is a current polling fellow with Talking Points Memo, and a former Peace Corps Volunteer in Kazakhstan, where he drank far more vodka than he would have liked.

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