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By Kent Scheidegger, Special to CALmatters

Two years ago, California had a great debate on capital punishment. Two initiatives squarely presented the question of whether to scrap the death penalty or repair it. The arguments were fully and vigorously presented, and the people made their choice. They chose to mend it, not end it.

Now the ever-vocal anti-death-penalty movement is calling on Gov. Jerry Brown to spit in the face of that decision, and clear out death row with a mass clemency.

Death penalty opponents want him to follow the example of Illinois’ corrupt former Gov. George Ryan with an act of political cowardice, misusing the pardon power on the way out the door when there is no political price to pay for it.

Brown is a long-standing opponent of capital punishment. But he should refuse this request as a matter of principle. Respect for democracy is more important than one’s stance on a particular controversy.

Proposition 66 was not the first time Californians chose in favor of capital punishment. It was the 11th.

In 1972, the California Supreme Court misconstrued the California Constitution to outlaw the death penalty, despite incontrovertible history to the contrary. The people swiftly overruled that decision by constitutional amendment.

In 1976, the U.S. Supreme Court created new rules requiring a new law, and only a weak law could be passed over Jerry Brown’s veto, so the people voted for a stronger one in 1978.

The people voted to further expand the death penalty law twice in 1990, twice in 1996, and twice again in 2000.

In 2012, the people rejected an initiative to repeal the death penalty.

In 2016, they rejected repeal again by a larger margin than in 2012, even though they endorsed liberal propositions and candidates elsewhere on the ballot. Further, they demanded that we enforce the law. The voice of the people does not get any more clear than this.

The bottom line is simple justice. Death row contains people like Lawrence “Pliers” Bittaker who raped, tortured and murdered five teenage girls in the Los Angeles area in 1979.

Tiequon Cox is another denizen, thoroughly undeserving of clemency and due to meet his punishment in the coming year. Cox broke into a home to make a gang hit but instead found a grandmother, her daughter, and her grandchildren. Aware that he was in the wrong house, he slaughtered them anyway.

These are the kinds of people that Hollywood activists wring their hands and soak their hankies for.

Families of murder victims wait for many years as the cases slog their way through the justice system. Many verdicts are overturned, often wrongly, but some make their way through.

There are now two dozen cases where all the normal appeals have been completed. The state has adopted the execution protocol that the federal court previously held it could proceed with. The former state-law barrier to executions was wiped away by the people in Proposition 66. Once the now-baseless federal injunction is lifted by the courts, justice can resume as the people decided it should.

Yet the activists’ push now is to use the power of clemency to snatch justice away, not because of any defects in any particular case but just because they disagree with the people’s decision on the law. That is not what clemency is for. Using it to empty death row would be a gross misuse of the power.

Overall, the system leans heavily in the defendant’s favor on the premise that it is better for 10 guilty people to go free than for one innocent person to suffer unjustly. The system leans even more that way in capital cases.

Even so, clemency provides an invaluable safeguard to cover the possibility that the exhaustive judicial process might fail. If, in a particular capital case, there is an actual doubt that the defendant committed the murder, then by all means the governor should grant a reprieve to resolve that doubt and commute the sentence if it cannot be resolved.

The governor is vested with a broad power to cut through all technicalities and get right to the justice of the matter. With that broad power comes the responsibility to use it for its intended purpose and not to block laws where the governor merely disagrees with the people’s decision. The responsible choice, the respectful choice, the democratic choice is to just say no to blanket commutation.


Kent Scheidegger, a co-author of Proposition 66 of 2016, is legal director and general counsel for Criminal Justice Legal Foundation in Sacramento, [email protected]. He wrote this commentary for CALmatters.