Does the death penalty prevent homicides and cruel acts of violence? This was a question I posed to a retired behavior analyst who worked in the Santa Clara county jail system and prefers to remain anonymous. “Data indicates that the death penalty is an ineffective deterrent,” she answered. For any punishment to be effective, it has to be delivered immediately. The length of the lapse in punishment time correlates to the ineffectiveness of the punishment.
She quoted the work of B. F. Skinner, inventor of the Skinner Box, a device to study how an animal interacts with its environment. Skinner came up with the term “Law of Effect — Reinforcement.” When behavior is followed by pleasant consequences, it is likely to be repeated, and behavior followed by unpleasant consequences it is less likely to be repeated. And punishment is more likely to lead to a reduction in behavior if it immediately follows the behavior.
The debate about the efficacy of the death penalty is back in the spotlight after California Governor Gavin Newsom signed an Executive Order in March putting a moratorium on the executions of the state’s death row inmates.
There are 737 death row inmates in California, including 22 women. Calling the death penalty system “a failure,” the governor explained that “it has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation.”
In San Quentin, the only facility in California where executions occur, there are 267 blacks, 245 whites, 189 Latinos and the rest Native Americans or Asian. This is the largest population nationwide.
African Americans are over-represented on death row. “In a state that’s only 6 percent black, more than one-third of defendants sentenced to death in California are black,” wrote Jennifer Eberhardt, professor of psychology at Stanford University in an op-ed for the LA Times. Eberhardt conducted research in 2006 that showed that looking “more black” increased the chances for receiving the death penalty, but only when the victims were white.
Since 1976, 13 people have been executed in California. The last execution was on January 17, 2006 of Native American Clarence Ray Allen and a year before that African American Stanley Tookie Williams was put to death by lethal injection.
Talking on the San Quentin podcast Ear Hustle, an inmate Kevin Sawyer recalled an incident when Jaturun Siripongs was executed in 1999. Siripongs a former Buddhist monk, was given the death sentence for a robbery murder in 1981. “So, the few hours before the execution toward the end of the evening someone yelled, do you think we should have a moment of silence for the guy that’s about to get executed and somebody responded with F* him, he shouldn’t have did what he did. I was kind of outraged. Because that could have been anybody in prison who has a case of say manslaughter to first degree murder,” Sawyer said, articulating the idea that in several cases, who gets sentenced to death and who gets sentenced to life in prison is dependent on race, geography, the victim’s race and a number of other factors.
Besides a flawed system with embedded racial bias, the death penalty has provided no public safety benefit or value as a deterrent, explained the governor, making his case for issuing the executive order.
Back to the idea of deterrence. Since death row prisoners are unlikely to see the outside of prison walls, the death penalty is instituted as a disincentive for society.
But in fact, it has the opposite effect. In states where the death penalty was repealed, like New York, Illinois and Connecticut, the number of homicides decreased after the death penalty was repealed. Data from 2016 shows that the average murder rate of death penalty states was 5.4 and that of states without the death penalty was 3.9.
There are 25 inmates who have exhausted their appeals. “This would be a mass execution,” and it would “exhaust the soul and the pocketbook,” remarked the governor. Counterintuitively, studies have shown that the death penalty system in California costs at least 18 times as much as a life without parole. This is because of the long and complex appeals process for death row cases.
Since the moratorium, two California Supreme Court justices have sharply criticized the “expensive and dysfunctional” death penalty system in the state. In People v. Potts, Justice Goodwin Liu, along with Justice Mariano-Florentino Cuéllar, wrote the first opinion since Gov. Newsom’s Executive Order, stating that the system “does not deliver justice or closure in a timely manner, if at all.” According to the justices, a death sentence in California “has only a remote possibility of ever being carried out.” Calling the Potts case “instructive,” Liu wrote that Potts was convicted and sentenced to death in 1998 and “now, 21 years later, we affirm the judgment on direct appeal, but there is more litigation to come in the form of habeas corpus petitions in state and federal courts. This timeline is typical of our capital cases.” Liu concluded that the death penalty moratorium echoes what many in the justice system believe is the right course of action.
There’s no arguing that death row criminals have committed horrific crimes and deserve swift retribution. And compassion should be reserved for the victims, who have suffered unimaginable grief and devastation and often demand closure. But even with the sentence of death, it’s rare that death is the immediate outcome. California’s death penalty process puts victims’ families in limbo, is too expensive, carries an underlying bias, and calls into question its very purpose.
Jaya Padmanabhan’s guest column runs biweekly in the SF Examiner. This is an opinion column and the point of view of the writer is not necessarily that of The Examiner. She can be reached at firstname.lastname@example.org. Twitter: @jayapadmanabhan