Ten Years After Last Execution, California’s Death Row Continues to Grow

TEN YEARS AGO TODAY, on January 17, 2006, California executed Clarence Ray Allen, the oldest person ever put to death in the state. It was just after midnight — the day after Allen’s 76th birthday — and the execution was couched in controversy. Allen was legally blind, diabetic, and relied on a wheelchair. He had suffered a heart attack the previous fall. Later, when he asked that they just let him die if he were to have another heart attack before his execution date, prison officials said they could do no such thing.

Yet when the press told the story of Allen’s death, the prevailing descriptions were of a man in fine health — not nearly as weak as described by the attorneys who had tried to save his life. “In final moments, killer didn’t seem so frail,” read the headline in the San Francisco Chronicle, which noted Allen’s “robust ability”: how he stood up on his own from his wheelchair before being helped to the gurney by four prison guards; how he “vigorously craned his head” toward his supporters in the viewing chamber. California Assemblyman Todd Spitzer, who witnessed the execution, called it “incredibly humane,” remarking, “For 76 years old, he looked to be in remarkably good shape.” When it was revealed that officials at San Quentin had to inject Allen with a second deadly dose of potassium chloride — raising potential questions about the efficacy of the state’s execution protocol — the Associated Press presented this as proof that the “barrel-chested prisoner’s heart was strong to the end.”

Clarence Ray Allen

The narrative was comforting in its reassurances: Regardless of any last legal challenges or activist hysterics, this was a dangerous killer, not a feeble old man. And Allen certainly had much blood on his hands: Sentenced to life in prison for killing his accomplice in a 1974 robbery, he was then convicted and sentenced to death a few years later for ordering three more murders while behind bars at Folsom Prison. In a state that had struggled to carry out executions for decades, Allen’s death could be seen as a righteous way to usher in what was expected at the time to be a busy era for the execution chamber. With appeals running out for a number of prisoners, 2006 was to be the year California resumed executions “at a pace unseen in more than a generation,” according to the Sacramento Bee.

Yet a full decade later, California has not executed a single person. Soon after Allen’s death in 2006, problems with lethal injection protocols brought the state’s execution machinery to a halt. It has never restarted. In the meantime, California’s death row, by far the largest in the country, has continued to grow, from 646 people in January 2006 to some 750 today. Last year, California officially ran out of space for its condemned prisoners, prompting Gov. Jerry Brown to request $3.2 million from lawmakers to expand its death row cells.

But the past decade is only the latest chapter in California’s long and sordid death penalty saga, a history that has seen the state pour resources into a punishment regime that, when measured in executions, at least, exists more in theory than in practice. To date, only 13 people have been executed since the state brought back the death penalty in 1977. Meanwhile, more than 100 have died facing execution — a quarter of these prisoners have committed suicide, according to the California Department of Corrections and Rehabilitation (CDCR). The cost to California taxpayers, according to a 2011 study, has been more than $4 billion — and by 2030, the projected cost will reach $9 billion, with more than 1,000 people on death row.

Today, a growing number of Californians have reached the inevitable conclusion that it’s time to get rid of the death penalty once and for all. In 2012, a hard-fought ballot initiative to replace capital punishment with life without parole lost by a narrow margin — and in 2014 support for the death penalty dropped to a 50-year low. Yet some remain committed to reviving executions in California — and late last year the state took a number of steps in that direction. In November, the same month a federal judge overturned a ruling that had declared the state’s death penalty unconstitutional on Eighth Amendment grounds, officials introduced a new “humane and dignified” lethal injection protocol, replacing its embattled three-drug cocktail with an array of one-dose options. In December, pro-death penalty activists began collecting signatures in support of a ballot measure that would jumpstart executions by quickening the appellate process and shorten the amount of time between conviction and execution. This coming November, backers of the measure will face off against an opposing measure that again seeks to abolish the death penalty. Last week, a field poll found California voters evenly divided on the two ballot initiatives.

None of this activity makes executions imminent in California. The state’s new lethal injection protocol will be subject to a lengthy public vetting process. And even if the pro-death penalty ballot measure prevails, implementing its changes would be costly and complicated. Still, should the state start killing again, Californians can expect to see a lot more prisoners who look like Clarence Ray Allen make their way to the gurney. As of now, the next 16 prisoners in line to die are mostly old men, all of whose sentences date back to the 1980s. Half are in their 60s, and two are more than 70; the oldest is 78.

TO JEANNE WOODFORD, who once oversaw executions as the warden at San Quentin, killing these men “serves no penological purpose.” The murders they committed “are horrible crimes, no doubt about it,” she said. But decades later, their executions seem senseless and arbitrary, devoid even of any retributive value. In Allen’s case, the father of one of his victims waited 25 years for his execution, only to die months before it was carried out.

Nor do such executions keep Californians safer, Woodford says. It is understood that for a punishment to be a deterrent to crime, it must be “swift and certain.” Today, more than ever, the death penalty in California is the exact opposite.

Jeanne Woodford, a former San Quentin warden, in San Francisco, Calif., May 27, 2011.

Woodford worked at San Quentin for more than 25 years. When she started, there were only six people on death row. By the time she left in 2006, the number was more than 700. A lot of the prisoners she saw were young men — “gang members,” she recalled, “the very people whose behavior changes over time.”

“These were not the people most Americans would imagine as the ‘worst of the worst,’” she said. Many had been convicted under a 1978 ballot measure known as the Briggs initiative, which significantly expanded the kinds of crimes eligible for the death penalty. “When they widened the net, they included a lot of people who aren’t serial killers,” Woodford said. As she reached the end of her time at San Quentin, Woodford saw a death row population that was increasingly aging and infirm — “guys with dementia.” Dozens had died of old age, illness, and suicide. “There is a wide gap between who the public thinks is on death row and who is actually on death row,” she said.

After she left the CDCR, Woodford became an anti-death penalty activist, briefly heading the group Death Penalty Focus, which led the fight for Proposition 34, the 2012 ballot measure to abolish the death penalty. In doing so, she encountered the unlikeliest of allies: the man who authored the Briggs initiative, a former prosecutor-turned-defense attorney named Donald Heller. Once a staunch supporter of capital punishment — he once said he would “throw the switch” for a criminal defendant — Heller designed the 1978 ballot initiative at the behest of California state Sen. John Briggs, a right-wing conservative who aspired to join the U.S. Senate. The measure was designed to increase the number of eligible death penalty crimes through the use of “special circumstances” — aggravating factors that would automatically set the range of punishments for a criminal defendant as either death or life without parole. “Unfortunately,” Heller recalled, “I did a really good job.” The initiative passed overwhelmingly. A Loyola law professor who conducted a study of the death penalty for the Senate Judiciary Committee later decried the “reckless drafting” of the initiative as well as the political campaign around it: The ballot pamphlet told voters that only those who intended to carry out a murder would receive the death penalty under Briggs, but this did not turn out to be true.

After the Briggs measure passed, prosecutors rushed to seek the death penalty. “Everyone was trying to put a notch on their gun,” Heller recalled. “There were a tremendous number of capital cases filed.”

Donald Heller

As Heller watched the wave of new death sentences, he said, “I had second thoughts about what I wrote.” He started to realize that he had made a number of erroneous assumptions about the death penalty. “The first was that it would deter murders,” he said, a claim for which he says there is no empirical evidence. “The second: I assumed defendants would have competent representation.” Heller was “shocked” to see just how shoddy the representation could be for people facing death row.

But the case that ultimately turned Heller against the death penalty for good was that of a man named Tommy Thompson, one of the few people in California whose death sentence has culminated with his execution. Sent to death row in 1984 largely on the word of a jailhouse snitch, Thompson was convicted for a rape and murder that prosecutors later pinned on his codefendant — but only after Thompson had already been condemned to die. Once the state “switched theories,” Heller told the Los Angeles Times in 2011, “the prosecutor made no effort to notify Thompson’s trial judge that evidence now showed that Thompson was not the actual murderer.”

Heller was so disturbed by Thompson’s case, he agreed to testify at his clemency hearing, “I laid out in detail the reasons that I felt this was wrong, that it violated the letter and spirit of the initiative, the fundamental law, the prosecutor’s obligation, and was an injustice,” he told the LA Times. But Gov. Pete Wilson declined to commute the sentence and Thompson was executed in 1998. His last words were read by the warden after his death at 12:06 a.m. “For 17 years the AG has been pursuing the wrong man,” Thompson said. “I don’t want anyone to avenge my death. Instead I want you to stop killing people. God bless.”

The experience forever altered Heller’s feelings about capital punishment. “Something I wrote was utilized to execute someone who was innocent,” Heller said. He no longer believes the death penalty is worth the financial or human cost. “If you have an imperfect system taking someone’s life, it’s a little bit frightening,” Heller said. “Especially with the number of people who have been shown to be actually innocent. It makes you think.”

The entrance to death row at San Quentin State Prison in California, June 8, 2012.

Not everyone in the state is learning from the past. Indeed, as far as stalled executions are concerned, California has been here before. It took 15 years, after bringing back capital punishment in 1977, for the state to carry out its first execution, in 1992. In the meantime, hundreds were sent to death row. In 1990, a year that saw 33 new death sentences in the state, the Los Angeles Times ran an article titled, “Next to Die in Gas Chamber: It’s Anybody’s Guess.” Of the 275 people on death row at the time, the story speculated, only those who were willing to drop their appeals and be executed were likely to be executed anytime soon. But even that was no guarantee. One man, on death row since the ’80s for killing his wife, told the Times, “I don’t wish to die, but I don’t wish to live under these conditions.” More than 25 years later, that man, Jerry Stanley, is still alive and now in his 70s. He has continued to ask for death. In 2011, as dubious lethal injection drugs made national news, he wrote to the Times, “I am willing to be the experimental guy to see whether or not they work.”

THESE DAYS CALIFORNIA sends fewer people to death row. But the state still appears to be in denial about its death row crisis. In 2008, after four years of studying the state’s death penalty system, the bipartisan California Commission on the Fair Administration of Justice declared it “dysfunctional.” In addition to raising alarm about wrongful convictions, the commission warned lawmakers that sentencing an average of 20 prisoners per year to death — while executing no one — was creating “a backlog … so severe that California would have to execute five prisoners per month for the next 12 years just to carry out the sentences of those currently on death row.”

The backlog, the commission found, is inextricable from the fact that virtually every person on California’s death row is indigent — and thus reliant on the state for representation. But even as California has added scores to death row, it has defunded the office of the State Public Defender. So, while death penalty supporters like to blame prisoners’ lengthy appeals for clogging the path to justice, in reality condemned inmates spend years just waiting to be appointed lawyers who can handle their case. Indeed, the commission found “excessive delay” at every stage of the review process: Prisoners sentenced to death wait between three to five years for an attorney to be assigned to their direct appeal. Longer still is the wait for counsel for state habeas petitions (eight to 10 years). These are followed by additional years of waiting for courts to rule: The commission found a more than six-year wait for decisions on federal habeas petitions. In all, the commission found, “The total lapsed time from judgment of death to execution is 20-25 years.”

That prisoners spend so long languishing on death row was at the heart of a 2014 ruling by U.S. District Judge Cormac Carney, who overturned the death sentence of a California man who had spent 20 years facing execution — and at the same time declared the state’s death penalty system unconstitutional on Eighth Amendment grounds. For most prisoners on California’s death row, he wrote, their sentence “has been quietly transformed into one no rationale jury or legislature could ever impose: life in prison, with the remote possibility of death.”

Compounding the problem are prosecutors who continue to seek death sentences despite the state’s clear inability to carry them out. In 2015, which marked historic lows in new death sentences across the country, California condemned more people to die than any other state. As in the rest of the country, these sentences were clustered in specific jurisdictions, where a single stubborn DA can still send a lot of people to death row. Of California’s 14 new death sentences last year, prosecutors in Riverside County were responsible for eight. In Slate last fall, Robert J. Smith called Riverside “the buckle of a new Death Belt,” a place that has “produced more death sentences since 2010 than any other county in America except one — Los Angeles County, which is four times its size.”

“In one sense, it’s irrational,” Heller said of prosecutors currently seeking death sentences in California. But more obviously, it is political. “Prosecutors still use it as a notch, I think, more than anything else.”

It also means that the state will continue to invest in its death row infrastructure. “Honestly, I don’t think they have a choice,” said Woodford. “The death penalty is in place because of the voters in the state of California.” Keeping it in place means meeting certain constitutional standards. Most recently, responding to a ruling by a federal judge, prison authorities hastily revamped a new medical unit at San Quentin to convert it into a 39-bed psychiatric unit for prisoners with mental illness. (“We are curing them to make them executable,” Berkeley law professor and death penalty scholar Frank Zimring told the LA Times.)

But perhaps the ultimate emblem of capital punishment in California is the death chamber at San Quentin — a $853,000 renovation project completed years ago, and built by prisoners themselves. In 2010, members of the press were invited to inspect the new and improved death chamber. Reporters noted the roominess of the space (four times larger than the old one), its hexagonal shape, and the “pistachio-colored vinyl” covering the gurney (the “only splash of color” in the sterile room). The warden told reporters at the time that the prison was “fully prepared to carry out an execution,” anticipating it would do so within a week. More than five years later, the execution chamber remains unused.

Last December, just two days after Christmas, the CDCR once more allowed journalists inside the death chamber. (“It smells of new paint,” an LA Times reporter observed.) Twenty media outlets participated in the six-hour tour, which gave rare access to San Quentin’s death row corridors, along with the solitary confinement unit the CDCR calls the Adjustment Center (otherwise known as “the hole”). The department denied there was any specific reason for the timing. (“One reporter recently asked to visit, and then another,” a CDCR official wrote in an email to The Intercept.) The subsequent stories portrayed a grim universe, a prison within a prison that has grown out of the long legal limbo of its inhabitants. “Some two dozen wheelchairs sit parked outside the cells of aging men no longer able to walk,” the Times noted. Meals are eaten in their cells, behind mesh screens. “Group therapy” is an assembly of men in metal cages. (The 21 women on death row are housed in a different prison in Chowchilla, two-and-a-half hours away.)

With no end in sight to their time on death row, prisoners do what they can — writing, exercising, listening to the radio. But there is no escaping the sense of neglect — of being forgotten. Speaking to the North Bay Bohemian, one prisoner summed up his life as “being left on a shelf.” Another said he had just ended a 27-day hunger strike to protest the absence of capital defense attorneys. “Guys are dying,” he said, “and nobody is up here saying, ‘You are a human being.’”