In Support of Proposition 34

Proposition 34, also known as the SAFE California Act, is on the November 6, 2012 ballot in California as an initiated state statute.

If the state’s voters approve it, Proposition 34 will eliminate the death penalty in California and replace it with life in prison without the possibility of parole.

Specifically, Proposition 34 will:

• Repeal the death penalty as maximum punishment for persons found guilty of murder and replace it with life imprisonment without the possibility of parole.

• Apply retroactively to persons already sentenced to death.

• Require persons found guilty of murder to work while in prison, with their wages to be applied to any victim restitution fines or orders against them.

• Create a $100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases.

California has 725 people on death row. Seven of the 725 people currently on death row have exhausted all appeals and are therefore eligible for execution, although legal challenges to California’s lethal injection procedure must be resolved before any of them could be executed. The last time a prisoner was put to death in California was in 2006. At that time, a federal judge halted executions in the state until various changes were made in how the state administers the death penalty. (source: www.ballotpedia.org)

The San Francisco Chronicle recently ran an article about a segment of Death Row inmates in California who are vocal in their opposition to Proposition 34, and detailed their reasoning, which centers on the fact they stand to lose state funding for their post-appellate proceedings.

Three of our Minutes Before Six writers who support Proposition 34 have written essays in response. 

Willie Johnson has been on Death Row at San Quentin for 30 years for a crime he did not commit.  His Actual Innocence appeal is currently pending.

Michael Wayne Hunter spent 18 years on Death Row at San Quentin before his sentence was commuted to Life With Out Parole in 2002.

Thomas Whitaker has resided on Death Row in Texas since 2007.

Both Michael and Willie are familiar with the Death Row inmates opposing Proposition 34, and all writers put forth their supporting opinions with respect. 

Don’t Give Up

By Willie Johnson

I’m always amazed by the sociological impact that western culture has on the psychological make-up of African-Americans.  Here we are three hundred years after the initiation of slavery and there’s African-American prisoners embracing the practice of state execution.  I know that my brothers on death row are not motivated by selfish reasons when they speak against SAFE California/Proposition 34 that will end capital punishment in California.  But they should always keep in mind the symbolic meaning of blacks being killed by the state.  And the symbolic implication it holds for future generations.  It’s been a long journey since slavery.  And the little freedom we hold is the result of many people making blood sacrifices.  Individuals were willing to give their lives so that the next generation would have an opportunity to improve on their work.  And their work was to ascertain equal rights and protection for all citizens under the American flag.  So to hear brothers speak out against ending the death penalty makes me sad, particularly since I have a clear understanding of what it means to the struggle of African-Americans and poor people in general.  I know that these brothers are concerned about what ending the death penalty means.  But they must keep in mind how many lives ending the death penalty will save.  I’ve personally seen many men sent to death at San Quentin and I’ve also witnessed the many suicides and other deaths that have occurred on the row.  And each one has touched me deeply, not only because each man was a human being, but also because each death was the result of social injustice.  I say that because the American justice system doesn’t treat rich and poor people the same.  And that to me speaks volumes of what America is all about.  So from someone that has been getting the boot all his life, I say whatever advantage the state provides us we should take it because in the end we don’t know how much it will assist others to bring a better day.  Sometimes in life we are forced to bite the bullet for the sake of others.  And I believe this is one of those times.  Besides, if you really have faith in yourself, you will find a way to get your case heard.  And in all respects you shouldn’t have to rely on the state to be fair by you.  After all, it’s the state that wants to kill you in the first place.

Thoughts on the SAFE California Act

By Michael Wayne Hunter

As a prisoner who was warehoused on San Quentin’s Death Row for eighteen years and now have been serving Life Without Possibility Of Parole (LWOPP) for ten years, I read with great interest the writings of several death row prisoners about the SAFE California Act. The main two objections by condemned prisoners to the SAFE California Act seemed to be the lack of consultation with prisoners currently sentenced to death, and the fact that if the act passes and condemned prisoners sentences are modified to LWOPP, their appellate attorneys’ fees will no longer be automatically paid for by the taxpayers.

As for consultation, condemned prisoners are not a monolithic group marching in lockstep toward the execution chamber. There are as many opinions as there are prisoners. When I was on death row, I used to joke that if San Quentin’s walls fell down and the guards told condemned prisoners to just go ahead and leave, a significant segment would refuse while saying, “Don’t you tell me what to do!”

When you are on death row, you are catered to in ways that you don’t fully understand until you leave for the general population. When I was transferred to Salinas Valley Prison, I found myself sleeping on the floor of Receiving because there was no cell available for me, while thinking, “Didn’t they know I was coming?!” Then it occurred to me that I was no longer one of the seven hundred on the row carefully warehoused while awaiting execution, I was now one of the 170,000 in California prisons and Salinas didn’t know or care that I was arriving at the prison.

What the SAFE act proposes to do is eliminate the death penalty and place the prisoners currently housed on death row in the exact same situation as thousands of prisoners in California prisons who at their trials were sentenced to Life In Prison Without Possibility Of Parole. I see prisoners in general population writing innocence projects, self-educating in the law library, and trying every way possible, mostly without success, to obtain judicial review of their trials and sentences. I would like every lifer have the right to appellate counsel but the State Of California is broke and on the reality plane the taxpayers are simply not going to pay for our appeals.

Although I like and greatly respect Kevin Cooper, who I personally know and believe along with many judges to be innocent of the murder charges against him, and I’m moved by KC’s willingness to risk execution in order to have the right to an attorney who will represent his claims in the courts, I think about the scores of prisoners on death row who are guilty of everything they were charged and convicted and have no appeal issues and will be executed if California doesn’t abolish the death penalty.

I understand the suspicion of Jeanne Woodford and to a large extent share them. I did not think she was a good warden when I was on death row or sympathetic to the concerns of condemned prisoners or their families and loved ones. But if condemned men are going to ask for an opportunity to grow and seek redemption, we should give that same opportunity to Jeanne Woodford, and I think the California SAFE Act although far from perfect is a step in the right direction and will save the lives of many condemned prisoners.

Just Another Brick in the Road

By Thomas Bartlett Whitaker

Come November, the citizens of California are going to vote on whether or not to keep the state’s comatose capital punishment scheme on life support. Prop 34 – or the SAFE California Act to those who prefer their bags of coal tied with a shiny red ribbon – would execute the death penalty and replace it with Life With Out Parole. (LWOP) If passed, the number of condemned prisoners in the United States would be cut by roughly a quarter, and CA would represent the 6th jurisdiction to abolish state-sanctioned murder in just under six years. Since the 9th Circuit is located in San Francisco the passage of Prop 34 could also potentially have the effect of increasing the rate of overturned death penalty convictions from the other states which fall under the oversight of the 9th Circuit – states like Arizona, Washington, and Oregon. This sort of home-court advantage isn’t supposed to happen, of course, but it does and there is no sense in pretending otherwise. The Act was considered a long shot to pass when the signatures were gathered to put the voter initiative on the ballot, but due to the bipartisan support amassing behind the movement, it now has a fair shot at passage. Voters should support the ratification of Prop 34 and add California to the list of territories currently acknowledging we aren’t living in the stone ages.

That said, Prop 34 is not a perfect thing. It has come to my attention that a certain subset of the population of California Death Row is urging voters to shoot this initiative down. I wasn’t really surprised to learn of this. You meet all sorts of people in prison, many of whom have…ah…”interesting” views on politics. In any case, their arguments against the Act aren’t entirely baseless, merely flawed because those who hold them are laboring under some serious misunderstandings of the law and life itself. The first of these justifications goes something like this: LWOP is just another kind of death in prison, so Prop 34 isn’t any sort of real solution. Ok, granted: LWOP is a barbaric concept and clearly not a great outcome. But you guys are allowing the perfect to be the enemy of the good (or at least the decent). The pace of progress is a slow shuffle, and sometimes it feels like you spend 90% of your energy just trying not to fall backwards. It would be wonderful if we could see the passage of a bill that A) abolished the death penalty, B) instituted a reasonable set of determinate sentencing guidelines, and C) apportioned the funds needed to set the wrongly convicted men and women on death row free. While we are at it, I’d like to have an eidetic memory, 24-inch biceps, and a robot butler that looks just like Jessica Alba. Let’s get real here: ain’t none of that happening. Though it is not apparently popular (even amongst the Left) to believe in the concept of Utopia anymore, I still do. Perhaps not the pie-in-the-sky worker’s paradise of yesteryear, but some sort of human society that addresses the needs of all in a rational, utilitarian manner, without ending up with the horror of an Omelas.

You guys who are advocating the continued existence of the DP need to understand that you are never going to see the Promised Land. You, me, everybody: we’re all screwed, doomed to toil away in this existence (whether behind bars or in the free world) and die unremembered, all because we had the misfortune of having been born too early in the history of our species. Get over it. Our job is to follow the pathway laid down by past generations, find the spot where its edges meet the Uncharted Lands, and then lay our own bricks down. That’s it; that’s life. That is the simultaneous beauty and desperation of the human condition. Prop 34 is one such brick, and it’s a big one. Once it is set in place, we can go about figuring out how to lay down the next, which deals with true criminal justice reform. But we have to get the distraction of the death penalty out of the way first. I know that sometimes progress feels like a pretty name for having to choose between two evils, but if you keep choosing the lesser of the two and never take your eyes off of the horizon, eventually you (and by this I mean the human race) are going to find yourself in a place that starts to look like home. And in any case, I’ve learned this about the journey: the cure for the pain is in the pain. Think about that for a bit, because there is a whole mountain of power and peace in those few words.

The first rule of intelligent tinkering is this: save all of the parts. That is what Prop 34 does: it removes the medicalized gibbet from the picture, and saves 725 lives. According to my data, there are either 14 or 15 men on California’s death row whose appeals are currently exhausted. If the voter initiative fails, most or all of these men will die in the relatively near future. Once Superior Court Judge Larry Paul Fidler rules on the execution protocol changes. Do you want that on your conscience? Think about all of the rest of us nationwide who are rapidly approaching final contact with a gurney: there are 9 human beings currently with dates in Texas in the next 3.5 months alone. We need forward thinking states like California to fall so that the pressure moves on to other jurisdictions. As my friend Willie wrote above, “Sometimes in life we are forced to bite the bullet for the sake of others.” This Act is a reasonable first step in a state where capital punishment still has a favorable majority opinion. Bring your head out of the clouds and focus on the real situation on the ground and take what you can get. And live to fight another day, a cliché that seems remarkably apt for the current debate.

After offering up the preceding moral/ideological argument, those advocating the defeat of Prop 34 move on to a more practical one. They claim that the passage of the Act will remove forever from the table their ability to find good attorneys capable of setting them free. This is a legitimate concern, at least on its surface. In a recent issue of the SJRA Advocate, San Quentin resident Correll Thomas writes: They are attempting to force us condemned men and women to accept another Death Penalty without any habeas review of our sentences.

Jarvis Jay Masters echoes this fear, saying: You need to know that your vote for this act would throw away the key for all the innocent men and women on death row, and instead, sentence all prisoners on death row to spend the rest of their lives in prison without the possibility of parole and without effective legal representation.

I don‘t know how the passage of the Act would affect these men’s constitutionally guaranteed right to counsel, because they would no longer be under sentence of death. (For the record, I don‘t think anyone really does at this point, and this issue will be litigated going forward.) For the sake of argument, let’s say that Thomas and Masters are right, and they are soon to be punted into general population without any legal help whatsoever. Wake up guys: the Act in no way precludes anyone A) going out and hustling up pro-bono representation or B) going to the law library and learning enough to file their own §2254s. I mean, gee, guys, welcome to the South: everyone of us down here in Yee-Haw Land understands instinctively that to survive this place we can’t rely on the state to provide us with a good attorney. Like Willie wrote above, “And with all due respect you shouldn’t have to rely on the state to do right by you.” A-bloody-men, brother. I’ve had to file my own motions, and I had to track down my own federal representation. It sucks that we have to do this if we want we want a chance of finding an attorney who actually wants to see us survive, but these are the rules of the game and there is no sense in complaining too much about them: just roll up your sleeves and get to work. Doing otherwise smacks of laziness. Doing otherwise while supporting a status quo that is about to put a wrecking ball through the lives of potentially hundreds of human beings is, frankly, evil.

In any case, the actual facts aren’t on your side: roughly 40% of the men on California’s death row don’t even have an attorney, let alone a good one capable of doing much for them. It can take a decade before you ever get your first, your first of many. California’s death row is a place you go to die – of old age. Or suicide. Or sickness. Anything but the actual needle. Even when you do get counsel, the vast majority of these attorneys are going to be novices or worse: those who took your case not for ideological reasons, but simply for the cash. If what you are really interested in is getting top-notch representation, the only way this is going to come to pass is when you stop waiting on others to save you and start writing letters. I sent out over 150 information packets before I found my firm, and this action is probably the only reason I am still alive to write these words.

Seven years of life behind bars has caused the sensitivity of my BS detector to improve in ways I had never imagined possible. Reading the publicized complaints by the condemned Prop 34 detractors caused this apparatus to start pinging crazily. I suspect that when you break it down, each and every detractor has selfish reasons for wanting the only two options to be release or the status quo. The thing is, guys, we have moved from a world of personal goals and fears into one of pure ideology here, and the self has to take a backseat to the greater good. That may be uncomfortable for some, but I am hoping that a majority of California residents are persuaded to take a stand for the side of light. One has so few opportunities to participate in an actual movement in this post-modern sludge.
If this thing fails, it will be partly because you guys collapsed at the moment when solidarity was most needed. If god or karma or whatever other metaphor for justice you care to worship exists, I hope that it/he/she is kinder to you than I would be, because you are about to have entire rivers or blood on your hands. Some of it will belong to friends of mine. Some of it will belong l to me.

Please support Proposition 34 by visiting www.safecalifornia.org