On 6 November 2012, Californians voted down “Prop-osition 34” (aka the “SAFE California Initiative”) which would have converted all death sentences into life without the possibility of parole (LWOP). As opponents of the death penalty, Marxists would normally support a measure proposing to eliminate this barbaric form of punishment, which has always highlighted the social biases of “American justice.” In 1972, U.S. Supreme Court Justice William O. Douglas candidly remarked: “One searches our chronicles in vain for the execution of any member of the affluent strata of this society. The Leopolds and Loebs [two wealthy young murderers from the 1920s] are given prison terms, not sentenced to death.”
While we favor the abolition of the death penalty, we recognize that getting rid of state-sanctioned murder will not change the racist nature of a judicial system that, in addition to class prejudice, routinely deals with blacks and Latinos far more harshly than whites. The liberal authors of Proposition 34, however, in a shamelessly opportunistic attempt to win support from elements of the “law enforcement community,” agreed to cut off funding for attorneys representing death row prisoners in habeas proceedings once their sentences are converted to LWOP. Rather than stressing the inhumanity and injustice of capital punishment, they pitched abolition as an opportunity to reduce state expenditures and save money for taxpayers. Section 2.5 of the proposal suggested that savings from a truncated appeals process could be used to hire more cops and prosecutors: “By replacing the death penalty with life in prison without the possibility of parole, we would save the state $1 billion in five years without releasing a single prisoner—$1 billion that could be invested in law enforcement.…”
Currently, anyone convicted of a crime that could result in a death sentence proceeds to a sentencing trial to determine whether or not the death penalty should be imposed. In this second “penalty” phase, a jury is supposed to weigh mitigating circumstances against specifically enumerated aggravating factors. A decision in favor of execution must be unanimous. Under Proposition 34, any defendant found guilty of a crime that would previously have made them “eligible” for a death sentence would automatically have been sentenced to LWOP. As well as eliminating the penalty phase, Proposition 34 would also have converted the sentences of the more than 700 inmates currently on death row to LWOP.
In California today, a prisoner condemned to death has the right to challenge the decision. First, there is a “direct appeal” based on the record of the original trial; second, there is a habeas corpus petition in the state courts. If both of these are unsuccessful, the prisoner then has a right to file a habeas corpus petition at the federal level. These proceedings allow challenges on a variety of issues, including racial bias in jury selection and prosecutorial or judicial misconduct. They also provide an opportunity to introduce new evidence of innocence. This can be extremely important in a system that not only routinely frames up political opponents (like Mumia Abu-Jamal and Geronimo Pratt) but also wrongly convicts many other innocent people. According to Amnesty International, “Since 1973, over 130 people have been released from death rows throughout the country due to evidence of their wrongful convictions.”
Prisoners under death sentence in the United States have a constitutional right to free legal representation in habeas proceedings because of the irrevocable nature of execution. Under Proposition 34, those whose death sentence would be converted to LWOP would also have lost their right to publicly-funded legal representation in habeas proceedings to which they are presently entitled. This would have left them with no effective means of challenging their convictions because of the prohibitive cost of hiring the highly-experienced attorneys with specialized knowledge necessary to successfully pursue the extremely complicated and drawn-out habeas proceedings. California presently pays qualified private attorneys to represent indigent death row prisoners in habeas proceedings and provides $13.5 million a year for the Habeas Corpus Resource Center to supervise and assist them. Proposition 34 would have redirected this money to cops and prosecutors to “solve unsolved crimes,” inevitably resulting in more frame-ups of innocent people and further tipping the scales against overworked and underfunded public defenders. The right to habeas corpus has been under bipartisan attack for decades—from Bill Clinton’s Antiterrorism and Effective Death Penalty Act to Barack Obama’s National Defense Authorization Act, which permits the “indefinite detention” of U.S. citizens. Had it passed, Proposition 34 would have represented one more step down the same path.
While, at its core, Proposition 34 was a “lock ‘em up and throw away the key” initiative, it also included the following stipulation pursuant to Section 190 of the California penal code:
“Every person found guilty of murder and sentenced pursuant to this section shall be required to work within a high-security prison as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Department of Corrections and Rehabilitation, pursuant to Section 2700. In any case where the prisoner owes a restitution fine or restitution order, the Secretary of the Department of Corrections and Rehabilitation shall deduct money from the wages and trust account deposits of the prisoner and shall transfer those funds.…”
This provision clearly authorizes prison authorities to compel convicts to work for up to seven days a week, 365 days a year for the rest of their lives at little or no pay, without even the minimal protections afforded by labor laws. Proposition 34 would, in effect, have condemned those currently on death row to legalized slave labor.
Given what was on offer, it is hardly surprising that many who stood to lose the most roundly rejected Proposition 34. The Campaign to End the Death Penalty emailed 220 death row inmates to solicit their opinions. Of the 50 who were able to respond, 46 advocated voting “no” while only four favored a “yes.” Prominent death row prisoner Kevin Cooper wrote that Proposition 34 “takes a step backwards in our ability to challenge our convictions” (San Francisco Bay View, 5 June 2012). Other death row prisoners who wrote detailed explanations of why they opposed Proposition 34 included Jarvis Jay Masters, Correll Thomas and Darrell Lomax.
The story was different among California leftists, many of whom supported Proposition 34. Some argued that because habeas proceedings in the capitalist justice system are so drawn out and tilted against blacks and other oppressed people, little would be lost by a blanket conversion of death sentences into LWOP. The Spartacist League, for example, asserted that because the death sentence is not overturned in most habeas hearings, “death penalty appeals provide little more than a facade of ‘due process’,” and observed that: “Of the 970 people condemned to death in California since 1978, only 54 have obtained new trials from such appeals; 32 other death row prisoners died awaiting a decision” (Workers Vanguard, 28 September 2012). During the same time, California has carried out 13 executions, the latest in 2006.
While 90 percent of state-level habeas challenges are rejected, federal-level challenges from California have actually been upheld in 70 percent of the cases heard (see Gerald F. Uelmen, “Death Penalty Appeals and Habeas Proceedings: The California Experience”). This is why Cooper and so many other death row inmates do not want to exchange a chance at freedom for a guaranteed life sentence. One of the most striking contradictions in the Proposition 34 campaign was that its advocates argued that the death penalty should be abolished because innocent people get executed, but at the same time were apparently prepared to see these same people condemned to life imprisonment in virtual slave labor camps for crimes they did not commit.
Marxists oppose the entire bourgeois justice system, which is designed to serve and protect the interests of the capitalist class. We recognize that the oppressed cannot expect justice from the capitalist courts. Yet, at the same time, we resolutely defend the limited democratic rights won through past struggles. Proposition 34 was pitched as a way to end the death penalty, but in fact it amounted to an attempt to gain popular assent for rolling back important civil liberties. Regrettably, much of the left seems to have fallen for this liberal gambit.
The case of Mumia Abu-Jamal raises many of the issues posed by Proposition 34. The abuses suffered by Mumia over the years—judicial and prosecutorial misconduct, incompetent representation, racial bias in jury selection—can all be challenged in habeas proceedings. The fact that Mumia’s Post-Conviction Relief hearing was sabotaged by his lead attorneys, Leonard Weinglass and Daniel Williams, who refused to introduce powerful new evidence of his innocence unavailable at the time of the original trial (see The Case of Mumia Abu-Jamal), does not detract from the importance of defending the right to such appeals for the wrongly convicted.
Liberals who turned their backs on Mumia did so, in many cases, because they shrank from drawing the obvious conclusions about American “justice” exposed by his frame-up. In 2010, the director of Death Penalty Focus, the organization which produced Proposition 34, conspired with other liberals to attempt to exclude Mumia from the Fourth World Congress Against the Death Penalty in Switzerland. They wanted Mumia out of the anti-death penalty movement because of the venomous hatred he inspires in the Fraternal Order of Police. Their strategy was to attempt to find common ground with law-and-order rightists by emphasizing the economic benefits of eliminating the death penalty while downplaying the reality of racial and class bias that permeates the entire so-called criminal justice system.
The death penalty has been abolished in a number of states in the U.S., and can certainly also be abolished in California. But doing so requires an honest campaign which educates people about the racism and barbarity of the death penalty and the injustice and inequality of its application—i.e., a campaign that takes on the “law and order” rhetoric directly instead of capitulating to it. Campaigning against capital punishment can provide a valuable opportunity to popularize the Marxist critique of bourgeois legality and the capitalist social system it serves. But this is not what Proposition 34 was about, and the failure of this “devil’s bargain” with the cops and prosecutors demonstrates the political bankruptcy of the liberals’ strategy.
In a clearly worded referendum on abolishing the death penalty that did not include the repressive provisions of Proposition 34, revolutionaries would, of course, have voted “yes.” It is good that Proposition 34 failed—had it succeeded, it might have become a model for similar campaigns in other states. There is now an opportunity for revolutionaries to intervene in the anti-death penalty movement to draw the appropriate lessons from Proposition 34’s defeat and point the way forward to abolishing capital punishment in California and the rest of the United States.
The duty of revolutionaries is to endeavor to act as “tribunes of the people” by opposing every instance of capitalist injustice while doing everything possible to hasten the overthrow of this profoundly unjust social system. That is why in California on 6 November 2012, IBT supporters voted “no” on Proposition 34.