Earlier this month, California Governor Gavin Newsom heeded the advice of capital punishment experts in his state and pledged to finally dismantle the death-row facility at San Quentin State Prison. Newsom’s announcement means that California is one step closer to ending a human rights catastrophe that found the nation’s largest death row in a state of perpetual liminality over the fate of nearly 700 condemned inmates.
Over the next two years, Newsom’s administration says he’ll transfer inmates to other prisons around the state. A state report recently recommended that he commute some death sentences to life-without-parole while also reviewing inmates’ sentences with an eye toward clemency for those, like Jarvis Jay Masters, who are almost certainly innocent of their capital charge. It’s a step in the right direction, as Newsom’s order, on top of his moratorium on capital punishment, will further strengthen a death-penalty-free zone that now extends from Alaska to the Mexican border.
Public opinion on capital punishment has shifted away from the 1990s “tough on crime” mantra, according to data assembled by the Washington, D.C–based Death Penalty Information Center, which is headed by Executive Director Robert Durham. The DPIC is a nonprofit that doesn’t support or oppose capital punishment but is critical of the way it is administered.
Durham says efforts are afoot around the country to “resort to the politics of the 1990s,” an era that saw, for example, Bill Clinton failing to intervene in the Arkansas execution of the severely brain damaged Ricky Ray Rector. Nowadays, killing off the infirm is something of a trend: DPIC’s 2021 report found that 10 of 11 executions carried out last year were of inmates with developmental disabilities or other mental impairments.
The DPIC also dives into the conditions in a handful of counties that account for an outsize number of executions. Just five counties—Harris, Dallas, Tarrant, and Bexar counties in Texas and Oklahoma County, Okla.—account for 20 percent of all executions in this country since 1976.
Other states have in recent years seen high-ranking death-mongers overriding local prosecutorial decisions. “Executions are affected by the declining support,” Durham says, “but artificially propped up by state attorney generals who want to carry out the execution regardless of what the public wants.” That dynamic played out at the national level during Trump’s late-season federal “execution spree,” he says, “where the Supreme Court didn’t just not intervene—it vacated injunctions and lifted stays.”
In recent years, reform-oriented county prosecutors (sometimes of color) have been replaced or overridden by governors and state attorney generals, including in Florida, where in 2017 then-Governor Rick Scott removed State Attorney Aramis Ayala from 21 murder cases after she said she wouldn’t pursue the death penalty. “Here you had a white Republican replacing a Black Democrat and appointing another white male Republican to handle those cases,” says Durham. Similar patterns have played out in Tennessee and Missouri, where efforts to exonerate innocent people or overturn unconstitutional death sentences have been stymied by state officials. In Missouri last year, local prosecutors around the state identified several people whom they identified as being wrongly convicted of murder. Missouri Attorney General Eric Schmitt intervened, says Durham, and told the state Supreme Court that “innocence wasn’t an issue.” The court agreed, and Missouri had to pass a new law to allow prosecutors to pursue exonerations. “That’s the kind of stuff we are seeing.”
Oklahoma County stands out as an outlier when it comes to both executions and the politics of prosecutorial reform. The state doesn’t have the benefit—at least not yet—of reform-minded prosecutors and instead finds local prosecutors “in lockstep” with the state attorney general’s office on capital punishment and criminal justice reform generally, says state Representative Mauree Turner, a millennial African American legislator who represents a big part of Oklahoma City.
Turner, who identifies as nonbinary, introduced a bill this year that would put the question of capital punishment as a public referendum—the only way to abolish capital punishment in a state that enshrines the practice in its state Constitution. The legislator describes an Oklahoma dynamic where local district attorneys have “weaponized capital punishment” even in light of local, national, and international outrage over the state-sanctioned killing of Julius Jones in November 2021, which followed on the heels of the botched execution of John Grant a month earlier. “It seemed negligent to not put this appeal forward,” says Turner.
The DPIC report highlights that Oklahoma County is one of only two US counties to impose more than one death sentence in 2021, performing more executions than any county outside of Texas. Historically, Oklahoma County has performed 42 executions, which as the DPIC notes is “more than twice the number of executions of the next-highest county”—St. Louis County, Mo., where 19 people have been executed.
Turner, who worked for the ACLU before becoming a legislator and whose father and grandfather were both incarcerated in Oklahoma, says criminal-justice issues in the state extend beyond capital punishment in communities afflicted with high rates of poverty, a poor education system, inadequate access to health care, and other denominators of red-state malfeasance. Both Tulsa and Oklahoma City rank in the top tier of police-involved killings of citizens, says Turner, adding that Oklahoma “somewhat feels like a police state, with DAs that continuously throw the book at people for minor infractions. People aren’t angrier or more hostile here—our system is archaic, biased and racist.”
The pro-death pushback has of late taken a new tack, as legislators and candidates for office have used the cudgel of cop killers to justify a return to capital punishment. Democrats in the Virginia statehouse pushed back an effort this week that would have reinstated the death penalty for cop killers. Following the highly publicized killing of two police officers in New York City, Desi Cuellar, the Republican challenger to US Representative Alexandria Ocasio-Cortez, vowed to introduce a bill that would pursue capital charges at the federal level when law enforcement agents are killed in the line of duty. Deploying dehumanizing language straight out of the Trump Central Park Five “animals” playbook, Cuellar accused Ocasio-Cortez of having “created a culture where it’s okay for criminals to run the streets and even kill cops.” (Less clear are Cuellar’s views on whether insurrectionists who assault cops while engaged in “legitimate political discourse” would get a pass.) And in Illinois—which is not a death penalty state—state Senator Dave Severin recently introduced a cop-killer capital punishment bill in January, following the murder of an officer there.
Durham says Severin’s approach is typical of 1990s-style rhetoric that emphasizes “spikes in murders and how we have to protect the police. I agree with him 100 percent: We have to protect our police, and that’s why the death penalty should not be on the table.” The DPIC has studied 30 years of FBI data on murders both generally and of law-enforcement agents and found no deterrence factor: Police are no safer in death penalty states than in others. “If either of those [were] the case, then that’s a strong reason to have the death penalty, or at least in the limited circumstance of the killing of police,” he says. But since they aren’t, the focus on capital punishment just diverts attention from reforms that might actually make police safer—“taking care of guns, for example.”