Californians may be faced with two competing death penalty initiatives in November. A measure to repeal the death penalty has already qualified for the ballot. A second initiative aims to preserve and reform the death penalty by speeding up executions. Below a human rights activist makes the case for the first measure.

Justice Stephen Breyer of the U.S. Supreme Court recently said the death penalty is unconstitutional and unworkable. I agree with him. And in November we Californians will get to be heard on the question.

Justice Breyer caused quite a stir last year with a thoughtful, deeply detailed dissent in a case, Glossip v. Gross, about Oklahoma’s plan to use a particular chemical, Midazolam, to execute Mr. Glossip. His lawyers argued that the drug, the cause of two “botched” executions — in one of which the condemned man struggled and suffered through two hours of torture before dying — was illegal, its effect amounting to “cruel and unusual” punishment banned by our Constitution’s 8th Amendment.

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The lawyers did not prevail, but Justice Breyer’s dissent virtually eviscerated the death penalty, carefully addressing its failure on each of the legal grounds used to justify it since capital punishment was reinstated by the Supreme Court in Gregg v. Georgia in 1976. In his dissent Breyer cites facts and studies showing the death penalty to be an unreliable, arbitrary, and ineffective failure.

To date 156 women and men have been tried, convicted and sentenced to death only to be finally — sometimes after three or four decades — exonerated and freed. The number of innocent people executed is not known, though Justice Breyer names some who possibly were.

There is too much arbitrariness in the criminal justice process for the death penalty to ever be carried out fairly. Inherent economic and racial bias in our criminal justice system — conscious or unconscious, local political pressures on prosecutors and judges, and whether the accused has access to a quality defense all impact the outcome of cases involving life and death. Two people convicted of the same crime can face very different punishments depending on who they are and where they live.

No matter where you stand on the death penalty, we should all be able to agree it is grossly ineffective. It takes too much time and costs far too much money to administer. While necessary to protect the innocent and guarantee fairness, the appeals process, as Justice Breyer noted, involves “unconscionably long delays that undermine its penological purpose,” weakening any possible retributive or deterrent value, while at the same time denying many victims’ families the closure they’ve been promised.


After dismantling the rationale behind our failed death penalty, Justice Breyer said: “I recognize that in 1972 this court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked.”

With more than 40 years to try to make the death penalty reliable, fair and effective, the states have failed. If anything, it has gone in the opposite direction. Today, the death penalty is more unreliable, less fair and more ineffective than ever.

The death penalty is broken beyond repair; maintaining it demeans us all.

Justice Breyer’s one mistake is counting California among the 11 states where the death penalty has not been used for eight years. He’s correct that we’ve had no executions, but it’s certainly not for lack of trying. Despite a court ruling that put California’s execution chamber on hold, death sentences continue to be pursued vigorously by ambitious prosecutors, giving us the country’s largest death row: 748 women and men — one-quarter of the entire nation’s condemned.


California’s death penalty has cost us $150 million per year since its re-establishment in 1978, a total of $5 billion to date. We’ve sentenced almost 1,000 women and men to death and executed 13 — a cost of $384 million per execution. During those years, eight times as many on death row have died of natural causes or suicide.

Fortunately, we now have the opportunity to solve the problem. The Justice That Works Act — an initiative on California’s ballot this November — replaces death row with life in prison without the possibility of parole, requires inmates to work and pay restitution to their victim’s family, and saves our state’s taxpayers $150 million every year. It’s the only real solution to a failed death penalty system. That’s why a diverse coalition of victims’ families, law enforcement, taxpayer advocates, civil rights and community leaders are gathering together to pass it.

Whatever the reason — whether it’s unreliability, unfairness or ineffectiveness — I hope you’ll help us put an end to our failed death penalty this November.

Farrell, best known as BJ Hunnicutt of TV’s “M*A*S*H,” is a human rights activist and currently the president of the board of Taxpayers for Sentencing Reform.