End the Death Penalty or Speed It Up – California Faces Opposing Ballot Initiatives
But the next day, a feeling of letdown began to sink in. “I was supposed to wake up in the morning with this newfound freedom,” Wilson said. “And I didn’t. And I kept waiting and waiting and waiting. And it never came.” Wilson had pushed for the death penalty, although she understood Ramirez wouldn’t be executed anytime soon. “Everybody in California knows that when you get on death row you’re more likely to die of old age,” she said. “Everyone knows that. That really wasn’t the issue.” The sentence was supposed to be the thing that healed her. “It was supposed to be my justice.” Instead, she felt lost and angry.
“That’s when my whole worldview started to unravel,” Wilson said. More than vengeance, she realized she wanted answers. She wanted to know why people do such harm to others. And she needed desperately for something positive to come from her loss.
Wilson embarked on an “investigative journey,” exploring Buddhism and studying forgiveness. Then, on the fifth anniversary of her husband’s death, she sat down to finish a letter she had started many times. “Dear Irving,” she wrote. “I thought that this day should be the one that I put all my fears and expectations aside and just keep writing so I can tell you a few things.” Wilson told Ramirez that she did not hate him anymore. She had despised him for a long time, but now that hatred was hurting her more than it could ever hurt him. So she forgave him. “I’m pretty confident that you didn’t envision your life turning out this way,” she wrote. And then she told Ramirez she was sorry: “I deeply regret my part in making people see you as less than human.”
Wilson tracked down Ramirez’s attorney, who was stunned — she had never seen such a thing in all her years representing people on death row. A different lawyer later helped Wilson arrange a visit to the women’s prison in Chowchilla. The experience was life altering, awakening her to the abuse, neglect, and trauma so common among people behind bars. Today, Wilson is a full-time criminal justice reformer, practicing restorative justice and continuing her prison visits. Although it’s a life she never imagined, it is also the positive outcome she craved: a chance to disrupt cycles of violence by helping others address their own trauma. “I want to heal that,” she says. “Before people twist off and kill someone’s husband, their brother, their son.”
Ramirez never wrote back to Wilson — his lawyers likely cautioned against it. But curled up on her couch in mid-September, alongside her two dogs, she spoke about him with compassion. She feels particular empathy for his mother, who had brought him as a child from El Salvador to escape civil war. Wilson never looked her way during the trial, she was so focused on Ramirez. But now, with an adult son of her own, she imagines how much his mother must suffer at the fear of her child being killed by the state. “She has already lost Irving to death row,” she said. “For her pain to be magnified in my name — I can’t live with that.”
The Yes on 62 campaign has amplified these voices as Election Day approaches. Last week, it released two ads. One features Wilson; the other features Beth Webb, whose sister, Laura, was killed in a 2011 massacre at a hair salon in Seal Beach, by a man named Scott Dekraai. Webb’s grief has been compounded by frustration over an unfolding scandal within the Orange County District Attorney’s Office, involving the sweeping misuse of jailhouse informants. The misconduct has made national headlines, derailing the Dekraai case and dragging out Webb’s ordeal. “I’ve already had to face him in court almost 50 times,” Webb says about her sister’s killer in the Prop 62 ad. For abolitionists, who often point to the burdens represented by long capital cases, the snitch scandal in Orange County is a reminder of the error and corruption that make death sentences not worth the risk.
Convincing voters won’t be easy. Polls still show wide support for the death penalty in California — a survey in September found 51 percent of voters opposed to Prop 62, 40 percent in favor, and 9 percent undecided. In fact, it was just four years ago that voters rejected a different abolitionist measure, Proposition 34, or the Savings, Accountability, and Full Enforcement for California (SAFE) Act. Spearheaded by Death Penalty Focus — whose longtime director, Mike Farrell, is the official proponent behind Prop 62 — the 2012 initiative was tailored largely to conservatives, emphasizing that people on death row would have to work to pay restitution to victims after their sentences were commuted, while providing tens of millions of dollars for police and prosecutors to “get more murderers and rapists off the streets.” The SAFE Act was defeated by a narrow margin: 52-48.
Yet much has changed in the past four years. In 2014 a U.S. district judge declared California’s death penalty unconstitutional, calling it a punishment “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.” A subsequent poll found support for the death penalty in California at its lowest in 50 years. Nationally, momentum has continued to build toward abolition. The same year the SAFE Act failed, Connecticut abolished its death penalty, with Maryland following in 2013. In a particularly extraordinary move, last year the Nebraska legislature overrode a governor’s veto to overturn its death penalty law; voters will face a ballot initiative on November 8 seeking to repeal the repeal. Alongside a steady decline both in executions and new death sentences year after year, exonerations have continued apace: In the relatively short time since the defeat of the SAFE Act, 15 people have been exonerated from death row across the country.
Abolitionists are hopeful that the landscape has shifted enough in California to reverse the narrow margin that defeated the SAFE Act, turning it in their favor. But this time, they face a new barrier, a pro-death penalty ballot measurethat was not a factor in 2012. Proposition 66 — or the Death Penalty Reform and Savings Act — seeks to preserve capital punishment and restart executions by revamping the system from top to bottom. At the heart of the measure, backed by prosecutors, police, and prison guard unions, is a vow to deliver on California’s unkept promise of closure for victims, by slashing the long delays between a killer’s conviction and death. The campaign has rolled out emotionally charged videos of its own: In one recent ad, a woman named Sandra Friend holds up a framed photograph of her 8-year-old son, Michael, who suffered a torturous sexual assault and murder after being abducted on his way home from school in 1996. “I am living a parent’s worst nightmare,” she says, urging voters to vote “yes” on the measure.
But critics accuse Prop 66 of peddling false promises, describing it as a poorly written measure that would create a whole new set of problems, including raising the risk of executing innocent people. Indeed, while the text can be hard to understand, it was clearly designed with finality rather than fairness in mind — opponents are not wrong to warn that it would make California “more like Texas.” Under Prop 66, post-conviction proceedings would be moved from the backlogged California Supreme Court to the same trial courts that handed down the death sentence in the first place. These courts, whose judges and clerks have never reviewed capital habeas appeals in California, would be tasked with swiftly appointing lawyers to handle habeas petitions (a process that currently takes years), in part by expanding the pool of available attorneys to include those who do not usually represent people on death row. Lawyers would face a one-year deadline to investigate and file habeas petitions — currently they have three years — except where there is “a substantial claim of actual innocence,” in which case they would get two years, tops.
Elsewhere amid the myriad provisions in Prop 66 is language that comes from an unlikely place: “Some of it was taken straight out of Prop 34,” one co-author told me, smiling at the irony. The SAFE Act’s work and restitution requirement, for example, was written into Prop 66 almost verbatim, except that it would apply to people on death row. Awkwardly, Prop 62 contains the same provision carried over from Prop. 34, the only other difference being the percentage of prison wages going to restitution: Prop 62 would allocate 60 percent; Prop 66 promises 70 percent.
Indeed, with their shared public safety frame, Prop 62 and Prop 66 can look disconcertingly similar at first glance. The title for the former — “Justice That Works Act” — could easily apply to the latter, which promises to “Mend, Not End the Death Penalty.” Polls suggest voters may actually be confused about the two measures; a Capitol Weekly survey in late October found that while 92 percent of voters who identify as anti-death penalty say they plan to vote for Prop 62, “40 percent of those same anti-death penalty voters are casting ballots for Proposition 66.” Californians could conceivably vote “yes” on both. If both measures pass, the one with the most “yes” votes wins.
To attack Prop 66 head-on, activists have launched a third campaign: No on 66. Led by many of the same advocates behind Prop 34, it is nonetheless separate from Yes on 62, with its own communication operations, endorsements, and events. The week I was in California, a press conference at the Los Angeles ACLU offices featured Barry Scheck of the Innocence Project, California exoneree Shujaa Graham, and relatives of Cameron Todd Willingham, who warned voters about the risk of wrongful executions. Days later, a separate event held by Yes on 62 featured 17 death row exonerees from across the country.
Although No on 66 works effectively in tandem with Prop 62, the separate campaigns also reveal fissures within the anti-death penalty movement. Some activists I spoke to have chosen to vocally support No on 66 while holding back on Prop 62. The tension dates partly back to the Prop 34 campaign; abolitionist critics pushed back against the SAFE Act’s conservative framework and law-and-order provisions. An activist whose husband is on death row at San Quentin pointed out at the time that people serving life without parole already pay restitution to victims while earning as little as 15 cents an hour — “One might title this initiative, ‘End the death penalty and replace it with slavery.’” In a growing debate beyond just California, others warned against embracing life without parole as the default alternative to executions, with Texas death penalty lawyer David Dow arguing that the sentence “denies the possibility of redemption every bit as much as strapping a murderer to the gurney and filling him with poison.” Particularly sobering was a survey conducted by the Campaign to End the Death Penalty, which sent questionnaires to 200 people on California’s death row in advance of the 2012 election. Of 50 who replied, 47 opposed the SAFE Act, even though its passage would mean they no longer faced execution. Central among their concerns was the automatic loss of their state assigned post-conviction attorneys, which would be a devastating blow to habeas appeals, especially for those with innocence claims.
But this year is different. The threat posed by Prop 66 has largely unified abolitionists behind Prop 62. In a new round of surveys sent by the CEDP to California’s death row, respondents have widely backed it as well. While people serving life without parole in California still warn that Prop 62 promotes a different kind of death sentence, others argue that the ends clearly justify the means. For Wilson, who would never deny the power of redemption, it is a question of priorities as well as what is realistic: “We have to stop a system that actively kills people. That’s it. There is no way that the public would go for taking people from death row and giving them the possibility of parole someday. That ain’t gonna happen. Nobody is brave enough to do that.”
Today, the same people responsible for bringing the death penalty back to California are among its harshest critics. Ron Briggs, who pushed the ballot measure that vastly expanded the death penalty in 1978, is a supporter of Prop 62. So is the man who actually wrote the 1978 ballot measure in question, an attorney named Donald Heller. Not only does Heller consider his law to have been misinterpreted and overused, as he told me last January, he is certain it led to the execution of an innocent man.
For others, who did not play a role in its design, applying the death penalty in practice has turned them against it. Darryl Stallworth worked as an Alameda County deputy district attorney for 15 years, leaving the office in May 2007 — just two months before the death sentence came down for Irving Ramirez. Now Stallworth is a criminal defense attorney, working out of a dimly lit office in downtown Oakland.
Raised Catholic, with parents from the South, Stallworth admits that he had never really given the death penalty much thought, even after becoming a prosecutor — “which is scary, but that’s where I was.” He simply accepted that it was on the books for a reason. After developing a track record of winning murder convictions, in 2003 he was tasked with a major capital trial. At first, he was excited. “Getting a death penalty case for me was like a promotion,” Stallworth recalled. “Until I started to work on it.”
Then there was jury selection, which lasted three months. As Stallworth gave out questionnaires, he began to realize the enormity of what he was asking people to do — to be “intimately involved in the process of executing someone.” He saw his own anxiety reflected in many potential jurors. “I hadn’t developed that place where I think prosecutors have to go, where you know, ‘I’m putting this person on death row, I want to kill them. This person is a monster.’ It started to feel like in order for the jury to legitimately consider executing somebody, they had to find them to be inhuman. And I had to see that the same way. And I struggled with that.”
Many of Stallworth’s misgivings had to do with the defendant’s age and background. The young black man was barely out of his teens; like many people who end up on death row, “he had lived a life that was a cycle of violence,” Stallworth said. “His mother was an alcoholic. She was in jail when he was born, never raised him. He was on the streets as a juvenile.” Stallworth remembers being determined to empanel a jury of his peers, only to struggle with that, too. “A lot of people of color don’t have jobs that are gonna pay them to sit for weeks or months. … You wind up getting this, most often, conservative group of people that are either retired or work for the government.”
Stallworth ultimately won a guilty verdict. But by then, he had been transformed. He held back from the dehumanizing rhetoric often used to demand a death sentence, simply asking jurors to weigh the aggravating circumstances against the mitigating ones. After a week of deliberations, the jury came back with a sentence of life without parole. “I’d lost the biggest case in my career,” Stallworth said, “but I had learned more than I ever could have imagined.”
Stallworth left the DA’s office soon afterward. A few years later, he was invited to lunch by a lawyer with the ACLU. “I don’t know how she figured that I might not have been all the way on board with what I had been doing,” he said. But he found himself sharing his story for the first time. Stallworth was asked to join the Prop 34 campaign. Knowing he would take heat from his former colleagues, he decided to do it anyway, and continued on to speak out on behalf of Prop 62. It would have been “cowardly” to remain silent given everything he knew, he said — and as a black man, he felt he had no choice.
HUNDREDS OF MILES south of Oakland, one of Stallworth’s most vocal opponents works in a small, windowless office in the heart of Los Angeles. In the downtown LA County Justice Center, Deputy District Attorney Michele Hanisee sits at a desk surrounded by case files laying out sex crimes and violent acts against children. On top of a stack of boxes sits a large poster that she designed. It bears the smiling faces of 14 young homicide victims, reading on the bottom: “227 children were murdered by the inmates now on death row.”
Hanisee is the president of the Association of Deputy District Attorneys for LA County, a position that keeps her especially busy these days. The union opposes initiatives like Prop 57 — an upcoming ballot measure to reform parole — as well as Prop 62, against which she is a leading voice. Hanisee has worked in the office for 16 years, about the same amount of time Stallworth spent as a deputy district attorney up north. But she shows no signs of stopping. As a prosecutor, she said, she has “the incredible luxury of always getting to do the right thing.”
White, blond, and raised in LA County, Hanisee’s experience runs parallel to Stallworth’s in one respect. “The first time you ever work on a death penalty case, that’s when you have to decide your feelings about the death penalty,” she said. “Until that moment, it’s purely hypothetical.” Her first capital case was the murder of a woman named Julie Cross, “the first female Secret Service agent killed in the line of duty.” As part of her job, she listened to the phone calls placed from jail by the defendant, who had been previously convicted of multiple murders. “I remember listening to this man’s calls with his young son. And he was saying, ‘Son, I’d kill a man for you’ — this was his display of affection for his son.” In all the capital cases she has prosecuted, Hanisee said, the killers have not only shown a lack of remorse — “They actually revel in the suffering they caused.”
Hanisee reminded me of something Dionne Wilson said when we met. However wrongheaded Wilson considers Prop 66, she is nonetheless certain it stems from a sincere desire to help victims. “I think the motivation is altruistic, frankly,” she told me. “I understand why people think that justice exists in a death sentence.” Hanisee comes across as one such true believer. “I have seen very intimately the level of hurt and pain that these people caused,” she said. For her, a death penalty is not about closure but retribution. “People like to say ‘there’s no closure for victims.’ Nope. There isn’t. You just have to learn to live with a new normal.”
Like everyone else, Hanisee concedes that the state’s current death penalty system is untenable. After defeating the SAFE Act in 2012, she and her colleagues agreed that “either we have to fix it or get rid of it. Not just be in this ridiculous stalemate where no one’s happy with what’s going on.” Prop 66 is “very complicated,” she admits, but she flatly rejects the notion that it is unworkable, saying its critics have probably not read the initiative. She has no patience for the warnings about inexperienced attorneys saddled with habeas appeals; if such lawyers don’t want capital cases, “then go get a different job and let somebody who will do this work take the money from the government.” As far as the practical problem of how on earth to address the backlog of people awaiting execution, she said, “I don’t think the goal is to clear death row. That would be perverse.” The goal, she said, “is to carry out the judgment of the juries of the citizens of this state in a reasonably prompt manner. But no one is suggesting that you should rush it and risk making mistakes. No one is suggesting that.”
Yet Hanisee is less clear-eyed when it comes to the systemic problems that plague the criminal justice system, whether proceedings are rushed or not. She refused to concede that California has ever sent an innocent person to die; when I cited a widely accepted tally of three death row exonerations in California to date, she said, “or questionably, none.” Even well-documented problems like racial bias are a “non-issue” as far as she is concerned. “All I know is my office never considers the race of the defendant.” While stressing that much of what is labeled “prosecutorial misconduct” is actually simple error, Hanisee did at least acknowledge the ongoing problems in Orange County, stressing that her office has protections guiding the use of jailhouse informants. But she took umbrage at the claim that such problems, paired with Prop 66, could result in the bad outcomes seen in more notorious death penalty states. “I don’t like being compared to Texas and Oklahoma,” she said. “This is California.”
On my last day in California, I met Steve and Raquel Herr, whose personal nightmare has been prolonged by the snitch scandal in Orange County. Retired teachers living in the affluent community of Anaheim Hills, they lost their only son — an Afghanistan war veteran named Sam — to a shocking murder in 2010. The killer, a community actor named Dan Wozniak, dismembered and decapitated their son, taking the stage in a play and attending a cast party later that night. “I was praying that the cops would find my son’s head on my birthday,” Steve Herr said. “I’ll never forget that.”
Wozniak was caught quickly, but not before luring one of his victim friend’s, Julie Kibuishi, to his apartment, killing her and trying to frame Sam for the murder. Police got a confession within a week, yet it took more than five years just for the case to go to trial. On the day I met the Herrs in mid-September, Wozniak still had not been formally sentenced. “Our son was murdered six years and four months ago,” Steve Herr said. Of some 190 hearings, he had attended them all, with one exception: “There was one I didn’t, because Raquel had a heart attack.”
Unlike Beth Webb — the Prop 62 supporter who blames the Orange County DA’s Office for delaying justice for her sister — the Herrs blame the public defender who exposed the office’s misconduct for using their case to advance “his own agenda.” Like many victims’ relatives in high-profile cases, they deeply resent that their son’s murderer has stayed in the spotlight. “Everything is focusing on Daniel Wozniak’s rights. Where are Sam and Julie’s rights?” Steve Herr asked.
Herr, the more vocal of the two in pushing Prop 66, was never particularly political. “But what occurred to our son made me political,” he said. He called for a death sentence from the start — years before Prop 66 raised the possibility of swift, certain justice. Indeed, like Dionne Wilson when she supported a death sentence for her husband’s killer, Herr knew better than to expect a fast execution for Wozniak. “Chances are, we’re not going to be around when he’s put to death,” he said. But death sentence made him feel vindicated — it validated his loss. “A jury is made up of 12 different people from all walks of life. They got it in an hour. They saw the heinousness of what Wozniak did. Knowing that the jurors got it, that was enough to me.”
A week after I met the Herrs, Wozniak was officially sentenced to die. As he had every other time, Steve Herr sat in the front of the courtroom. News reports also noted something he did not mention in our interview: Herr visited his son’s killer multiple times in jail, “looking for answers,” but was not swayed by Wozniak’s apologies. “I’ll never forgive you,” Herr reportedly told his son’s killer, “but I might hate you less.” Whatever closure the sentence may bring, it will not necessarily hinge on the future of capital punishment in California.