Prop. 34 Abolishing the death penalty: Who shall live and die Who by informant or junk science

“Who will live, and who will die …” Jews around the world says these words during one of the most climactic moments of the High Holy Day liturgy. For those of us in California, though, these words have special meaning this year. Voters will decide on Proposition 34, replacing California’s death penalty with the sentence of life in prison without chance of parole. We have the power, to borrow the words of that classic prayer, to “alter the severity of the decree.”

But should we? At one time in my life, I was not sure. Today, I am.

Over the past 20 years, I have had the privilege of representing more than a dozen clients sentenced to death who were later proven to be innocent and officially exonerated and released from prison. Despite the horrors these men endured, they are the lucky ones compared to those who are equally guiltless but will be (or have already been) executed.

There are 140 documented cases nationwide of individuals having been sentenced to death, then exonerated. Each story involves extraordinary serendipities of new evidence emerging or witnesses recanting or true killers confessing in time.

The idea that “who will live, and who will die,” turns on the fortuity of whether DNA or other exculpatory evidence emerges in a timely manner is more than cause enough for voting to replace the death penalty with a sentence that will fully protect us from violent criminals without executing innocent ones.

The Torah is replete, of course, with death sentences for a wide array of crimes — ranging from murder to the violation of the Sabbath or cursing one’s parents. But we know that the great rabbis of the talmudic era — who were devoted to the faithful implementation of the Torah’s edicts — nonetheless imposed an array of procedural safeguards that rendered a capital sentence a virtual impossibility. Hence the classic statement in the Mishnah (Makkot 7a) that a Sanhedrin (high court) that imposed a death sentence once in seven years (some say once in 70) was considered “a destroyer.”

“Who by mistaken identification, and who by false confession? Who by jailhouse informant and who by junk science?” It is up to us.

The specter of executing innocent individuals is more than enough cause for me to support Proposition 34. But there are many other additional compelling reasons.

One of these is the unmistakable evidence of strong racial bias in the imposition of California death sentences. Although one manifestation of this bias is in the race of the defendant, the far more severe bias turns on the race of the victim. This is consistent with studies across the country finding that the killing of a minority does not typically garner the same degree of passion as the killing of a white person, and that prosecutors and juries are less likely to seek and impose death sentences.

Imagine for one moment that we learned that the death penalty was being applied in a manner that treated the lives of Jews as less worthy of attention. Our community would rightfully be screaming bloody murder. How can we be silent when we know this is happening to other groups? “Who by racism, and who by our apathy?”

Proposition 34 also will allow us to redirect hundreds of millions of dollars being spent on capital punishment toward uses that will do far more good in promoting public safety and victims’ welfare. Like many, I used to believe a reason to support the death penalty was that it saved taxpayers the money used to feed and house prisoners. Nothing could be further from the truth.

Due largely to the expenses of legal proceedings and inmate housing, the costs of running a capital punishment system are staggeringly higher than the costs of a life-without-parole system. Indeed, the official conclusion of the California Legislative Analyst’s Office is that Proposition 34 will result in savings of “about $100 million annually in the first few years.”

We have a choice whether to spend money on capital punishment or whether to use that money instead to identify and prosecute rapists who remain at large.

If we are serious about preventing crime, solving crime and valuing human life, we should be funding our police and our schools — not spending hundreds of millions on the broken capital punishment system that has never been proven to contribute in any way to public safety.

On Nov. 6 it will be written and sealed. “Who shall live, and who shall die.” This time, the choice is ours.


Lawrence Marshall is a professor of law at Stanford Law School and was the co-founder and legal director of the Center on Wrongful Convictions at Northwestern University School of Law.