With Californians increasingly turning against capital punishment, political forecasters say the vote on Prop 34 — the anti-death penalty initiative — could be extremely close.

In September, the polls had Prop 34 losing by a wide margin. However, a new poll by USC Dornsife and the Los Angeles Times shows the gap narrowing to just three percentage points — 45 to 42 percent.

When pollsters asked recent converts to the anti-capital punishment side what changed their minds, most cited capital punishment’s high cost and the increase in exonerations by DNA testing as major factors in their decision. If these many condemned people have been proven innocent, they reason, the judicial system is too imperfect to mete out such a final and permanent sanction.

The Debate

The death penalty debate has been raging for so long, most of us can recite the arguments chapter and verse by now. Deterrence, the cost, closure for victims’ families, eye-for-an-eye justice and the immorality of state-sanctioned killing are just a few of the ideas that have been screaming at each other for years, changing very few minds.

The imperfect system/too final penalty argument had also been cited by the anti-capital punishment crowd, but until recently was more theory than fact. This argument asked folks to imagine the torture of being mistakenly condemned and considered by society to be unworthy of living — to imagine themselves and their family in that hellish situation, marking the days off to the exact day of your erroneous-but-certain death — while the real killer remains at large.

The imperfect system argument, which often included references to overzealous prosecutors, ineffective counsel, railroading cops, mistaken eyewitnesses and faulty lab work was usually countered by the assertion that capital cases’ appeals and exacting checks and balances kept the innocent from being put to death.

Some even conceded that a very few wrongful deaths might slip by but considered the death penalty so valuable, a mistake now and then would be OK. However, I doubt these folks ever visualized members of their own family or themselves as potential death penalty martyrs. After all, people mistakenly charged with capital offenses, they reason, are probably criminals or lowlifes anyway, or they wouldn’t have found themselves in such an awful predicament.

Delbert Tibbs

I guess they hadn’t heard about Chicago seminary student Delbert Tibbs:

In 1974, Tibbs was hitchhiking in Florida when he was stopped by police and questioned about a rape/murder that had occurred earlier that night. Although Tibbs was some 200 miles from the site of the crime — the brutal murder of a man and the rape of the man’s girlfriend — and did not match the victim’s original descriptions of the assailant, the police took Tibbs’ picture. The photograph was then sent to Fort Meyers, where the victim identified Tibbs as the rapist/killer. Although Tibbs had an alibi, the victim’s ID and a jailhouse informant’s claim that Tibbs had boasted of the crime were enough to send Tibbs to Florida’s death row.

Fortunately for Tibbs, the informant recanted his testimony after the trial, saying that he had lied for the prosecution in exchange for lenient sentencing in his own rape case. The recantation and the contradictory identifications by the rape victim eventually led to Tibbs’ exoneration in 1977.

Warning: If an overzealous prosecutor, mistaken identification and lying snitches can convict a hitchhiking seminary student who was nowhere near the crime, they can convict anyone.

DNA Testing and Curtis McCarty

Then the 80s brought us DNA testing. Tales of death row exonerations began appearing more frequently in the news. Such exonerations as the 2007 Curtis McCarty case in Oklahoma had people rethinking their position on the death penalty.

After spending 21 years behind bars — 19 on death row — McCarty became a free man. McCarty had been convicted twice of murdering 18-year-old Pamela Kaye Willis. His first conviction was overturned because of prosecutorial misconduct. However, the most damning evidence against McCarty from the first trial — proof that strands of hair collected at the murder scene were his — was presented at the second trial. The jury found him guilty and sentenced him to die again.

In 1995, an appellate court upheld McCarty’s conviction but ordered a rehearing on McCarty’s sentencing. Again, Curtis McCarty was sentenced to death — three times in all.

Then in 2000, while under investigation by the FBI for submitting phony forensic results, Joyce Gilchrist, Oklahoma City’s forensic analyst, was asked by McCarty’s attorneys to re-examine the hair fibers. She told them the samples collected at the scene had been lost or destroyed.

Based on the investigation’s finding of numerous instances of fraudulent testimony by Gilchrist, McCarty’s lawyers got permission to perform DNA tests on sperm collected from Willis’ body. Negative results of that test, plus Gilchrist’s unreliable forensics persuaded a judge to grant McCarty a third trial.

Armed with results of the sperm test, DNA tests proving that fingernail scrapings recovered from Willis’ body came from a different man, and suspected fraudulent forensics, McCarty’s lawyers asked a judge to vacate the convictions and to drop all charges against their client.

In 2007, McCarty was freed.

Lucky Guy

Despite having spent over two decades in prison for someone else’s crime, McCarty is a lucky man. He had dedicated and able attorneys fighting for him. Additionally, McCarty’s case happened to catch the eye of the Innocence Project, a group of lawyers and law students at Yeshiva University who assist inmates with cases that could benefit from modern DNA testing. Since 1992, the Innocence Project has helped remove 17 people from death row.

Death penalty supporters may point to McCarty’s eventual exoneration as proof of the system’s infallibility. However, that conclusion seems to overlook McCarty’s good fortune. For example, analyst Gilchrist had testified in thousands of cases over twenty years, including a number of capital cases. It was sheer luck that suspicions of her perjury habit surfaced while McCarty was still breathing. Also, McCarty was blessed with lawyers who gave a damn — not all do. Finally, the Innocence Project — as dedicated and effective as they are — are only able to get involved in a limited number of cases. Fortunately for McCarty, his case happened to be one.

The Ultimate Argument

There have been previous death row exonerations — 140 since 1973 — but apparently that number (3.5 per year) fell within the acceptable range for death penalty supporters. It also supported their belief that the system works, however belatedly.

But with DNA testing, the number of exonerations has jumped to five per year between 2000 and 2007. For an increasing number of voters — nationwide and in California — that’s just too many people. They realize that in many of these cases, the exonerations were the result of advocacy from outside the system, advocacy that very easily could have been focused on some other poor soul while the wheels of “justice” rolled over a number of innocent people.

On the other hand, they reason,  life with no possibility of parole will keep killers off the streets for good, while allowing those wrongfully convicted a chance to fight their conviction if new evidence proves them innocent.


Remember how we used to argue about the death penalty? You said it was a deterrent; I said it was meted out unfairly. You said it saved money; I said it wasted money.

Then we began to see an increasing number of stories in the news about DNA-based death row exonerations facilitated by such organizations as the Innocence Project and we put our argument on hold.

Wonderful as those stories were, they left us with one very disturbing and inescapable question: If these many lives are being saved because of the efforts of outside groups with limited resource and staff, how many other innocent lives are going all the way to the gurney because the Innocence Project is busy saving somebody else… six, ten, 100?

We don’t argue about the death penalty anymore.

  1. Hi Rusty,
    I have never been a fan of the Death Penalty. None of us has the right to take a life. I can’t even imagine what type of person would want the job of pushing the plunger. Let’s just stop this nonsense here and now. Plus, the person guilty of killing someone should be in prison, put to work and get on with their life in prison with the rest of the creeps; and not sitting in a private cell on death row for years and years. Sheesh, it is 2012 have we not evolved even a little bit?
    Love you,


    • Russ Buchanan says:

      Hi Debbie,

      Yeah, it is beyond me how our bloodlust has trumped our common sense and humanity for so long. With studies on deterrence inconclusive (at best) and a steadily increasing number of DNA-based exonerations hitting the headlines, how can anyone of good conscience support this barbarity?

      I’m with you — let those convicted of capital crimes do max security time for the rest of their lives, in many ways, a fate worse than death.

      Depressing subject notwithstanding… Always great to hear from you.



  2. Prop. 34 proponents are perpetuating a huge FRAUD against California voters, knowing that with the millions of out-of-state dollars they can repeat their lies enough times that voters will begin to accept them. A Study by Judicial Watch concludes that Prop. 34 is “both disingenuous and deceptive.” Three former CA governors and every major law enforcement group in CA OPPOSE Pro. 34.

    Pro. 34 is dangerous, will cost taxpayers more, and was poorly thought through.

    Prop. 34 will NOT save money, but instead COST TAXPAYERS BILLIONS of dollars more in additional trials, prison changes, and escalating health care costs.

    Claims that Prop. 34 will save money are based upon a paper written by a former judge who has been advocating for abolishing the death penalty for decades (biased and inaccurate). A review of these numbers by the Legislative Analyst’s Office concludes that the assumptions supporting these claimed savings “may well be wrong.” Michael Genest, former State Of California Finance Director, found that these “savings claims are grossly exaggerated.” Also, the loss of the threat of the death penalty will substantially increase the total number of murder trials by taking away a major incentive for murderers to plead guilty.

    Prop. 34 ignores the escalating costs of medical care for life-time inmates. Prop. 34 will cost CA taxpayers billions more over the next several years. (It is these huge medical costs that are fueling the attack on life sentences under 3-strikes under Prop. 36.)

    Prop. 34 is DANGEROUS. Experts conclude that Pro. 34 will increase the number of murders in California. Criminals will be more brazen in their crimes without the death penalty. Also, there will be no deterrent for the 34,000 inmates already serving life from killing a guard or an inmate. They are already serving the maximum penalty.

    One of the key methods for “saving” money under Prop. 34 is to move death row inmates into the general population and house them from single-person cells with other inmates. One strong proponent of Prop. 34 admits this is unworkable– the risk of danger posed by mixing the prison population is too great, and would increase costs associated with such an arrangement.

    Life without parole is means they WILL GET OUT. Efforts are already being pursued by the same people supporting anti-punishment ballots and legislation to get rid of life sentences. (Human Rights Watch, Old Behind Bars, 2012.) On 9/30/12, Brown passed the first step, signing a bill to allow 309 inmates with life sentences for murder to be paroled after serving 25 years. Someone who has committed a brutal murder at age 20 could get out by age 45! Governors are also notorious for releasing inmates who should never be released. Convicted killers get out and kill again, such as Darryl Thomas Kemp, Kenneth Allen McDuff, and Bennie Demps.

    ARGUMENTS OF INNOCENCE BOGUS. Proponents can’t identify one innocent person executed in CA. They can’t identify one person on CA’s death row who has exhausted his appeals and has a plausible claim of innocence. Quite simply, CA’s appellate process, designed by the very same people promoting Prop. 34, is 100% effective in weeding out the innocent. Every person Prop. 34 proponents refer to are either non-death-penalty cases or out-of-state cases where defendants do not get the benefit of CA’s appellate process.

    Don’t get fooled by the bombardment of lies. See cadeathpenalty.webs. com/ and voteno34. org for more facts explaining why you should NOT SUPPORT Prop. 34.


    • Russ Buchanan says:

      Hey Chris –

      Thanks for your enthusiastic commentary.

      You make some interesting points. However, Opposition to Prop 34 by “Judicial Watch” isn’t one of them. How that self-described “conservative” outfit (with an official sounding name) feels about Prop 34 is about as significant as, say, how Mitt Romney feels about four more years of Obama in the White House. We try to avoid that kind of sleight of hand here at this blog, Chris.

      For me,there is but one argument — one argument that trumps all others. Our disturbing suspicions that innocent people were seeping through the cracks of the system has been borne out by the increasing number of exonerated death row inmates across the country — some who had gotten within hours of the gurney. I see no more compelling reason to abolish this hold-over from the Dark Ages than the fact that death is far too final a penalty for such an imperfect judicial system.

      California is not immune to prosecutorial misconduct, mistaken eyewitness identification, incompetent lawering and a number of other causes of wrongful convictions. Just ask three former California death row inmates, Jerry Bigelow Patrick Croy and Troy Lee Jones — all removed from death row because the system you contend is infallible… isn’t. In fact, Columbia Law School’s comprehensive review of capital cases across the country 1973-1995 found California capital trials rife with error — more than 87 percent of capital verdicts contained errors that could have tainted the outcome.

      Although the issue of capital punishment as deterrent has been reduced to “you cite your study — I’ll cite mine,” I will point you and my readers to a 2009 study by Michael Radelet, chair of the Sociology Department at the University of Colorado-Boulder and Werner Einstadter, professor emeritus of criminology and sociology at Eastern Michigan University, that found over 80 percent of the nation’s criminologists believe the death penalty does not deter. The study is called “Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” and I would have gladly provided a link to this PDF if I weren’t so cyber-challenged. You can find the link at DeathPenaltyInfo.org This page also makes one heck of a financial case for voting yes on Prop 34. But, as I said, there’s only one argument for me.

      Regarding life-without-parole: You know as well as I — or you should know — that not one, single, solitary prisoner serving life with no possibility of parole has ever been released on parole from a California prison — or any other prison, for that matter. Why you believe they suddenly will is beyond me.

      Your right, after Prop 34 passes tomorrow, California prosecutors will no longer be able to get defendants to plead guilty to capital crimes by threatening to seek the death penalty if they choose to fight the charge in court. That will make the DA’s job more difficult, true. But look at the bright side — prosecutors will no longer be able to use the same threat on those wrongfully charged. In other words, innocent people won’t be put in the almost unimaginably awful position of having to swear to God they took someone else’s life in order to save their own.

      Thanks again for your input,



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