Death Penalty Survives In California, But Three-Strikes Law Cut Back

When 53 percent of California voters rejected Proposition 34 on Election Day, they were choosing to retain the death penalty instead of replacing it with life in prison without the possibility of parole. The same day, a larger percentage of the California electorate voted to radically reduce the number of felons serving life sentences under the state’s so-called “three-strikes” law. In both cases, the punishment costs the state dearly—either because of years of fighting an inmate’s appeals or years of housing and feeding him. How could the same voters care so much about saving money in one context but be so indifferent to the squandering of it in another?

The answer to that is something that the backers of Prop 34 didn’t seem to understand—but if they did, then it’s all the better that the measure failed. When Americans think about ordinary matters of crime and punishment, economics are key. But when you throw the death penalty into the mix, moral considerations rule. Economic arguments matter at the margins, but at its core, the debate over the death penalty is never really about dollars and cents—rather, it turns on our id⁄ea of what it means to be a human being.

I doubt the 726 inmates on California’s death row care very much about this debate. The state has not executed anyone since January 2006, when officials administered a lethal injection to 76-year-old Clarence Allen, and because of a federally imposed moratorium there is no immediate prospect that any of the dozen or so death-row inmates whose appeals have run their course will be put to death any time soon. In fact, California has executed a total of only 13 people since capital punishment was reinstated there in 1978—an average of one execution every two and a half years.

Meanwhile, in Texas two days after the election, Mario Swain became the 13th person executed in the state this year. Swain was my client. Ten years ago he broke into a house owned by a woman named Lola Nixon, intending to commit burglary. While he was inside, Ms. Nixon returned home, and Swain killed her.

The courts ruled against our final appeals late on the night of Nov. 7, around 26 hours before Swain was put to death. I decided to wait until Thursday morning to tell him, hoping that by keeping the news to myself, it would give him a better final night. Another lawyer might have told him right away. Death-penalty lawyers disagree about such things.