Much to the
chagrin outrage of many of the unduly passionate advocates for criminal law reform, I’ve refused to succumb to the facile, if simplistic, mantra of “everything is racism or sexism.” Indeed, I’ve explained why this is both wrong and a dangerous conflation of two extant problems that exist side by side, but separate, which is why they don’t want to hang out with me anymore. If you’re not part of their tribe, you’re part of their enemies’ tribe.
When it comes to an issue like the death penalty, invariably emotionally charged and particularly susceptible to reduction to absurdity, the calls that the system is broken because it’s racist are particularly loud and strident. It’s bad enough that so many advocates think only black and brown people are arrested and imprisoned, rather than grasp that they may be disproportionately targeted, but the same system puts white people in prison as well.
In California, where the death penalty remains a theoretically available punishment, the problem with this misguided understanding of the problem came to a head.
“It’s got to be really confusing for the average citizen who sees both things going on and doesn’t understand how all of the above can be occurring,” said Michele Hanisee, the president of the Association of Deputy District Attorneys in Los Angeles County. She is seeking a death sentence in one of her cases: the man accused of being a serial killer, Alexander Hernandez, who is charged with killing five people in a shooting rampage in the San Fernando Valley in 2014.
For all its wokeness, California voters rejected a ballot measure to end the death penalty and approved a measure to fast-track executions. At the same time, they elected Gavin Newsome governor.
Gov. Gavin Newsom, a Democrat, issued a moratorium in March on executions in the state, which has more death row inmates than anywhere else in the Western Hemisphere. But that decision has not stopped local prosecutors from seeking new death sentences, underscoring the divide in the state between conservative prosecutors and liberal reformers like the governor.
If this raises a question, much like Kamala Harris’ sudden epiphany that everything she ever did in her career as a prosecutor is in direct conflict with everything she says as a candidate for the Democratic nomination for president, then it’s going to get worse.
“The simple answer is this: The district attorneys of the state of California took an oath to uphold and follow the law,” Ms. Hanisee said. “I think the governor probably did too, but he doesn’t care.” The governor, she added, does “not have the legal authority to tell them not to seek death or not to follow the law.”
This is where the insipid scream, “but prosecutorial discretion!” As if prosecutors seek a popular vote before exercising their discretion on whether to seek the death penalty. But it gets worse.
“The case for the death penalty is the moral part of it,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, an organization in Sacramento that favors the death penalty and supported a ballot initiative in 2016 in which voters approved fast-tracking executions. “For the very worst murderers, nothing short of execution is adequate.”
The “worst of the worst” is the morality play, and for those who believe that there is some fixed list of stuff that’s moral you can check to make sure you’re doing it right, Scheidegger, who co-blogs with the effervescent Bill Otis, has just as much right to lay claim to morality as anyone else. It’s not that he’s right, but that morality is whatever you believe it to be. His version is death. But it gets worse.
“Gargiulo is a white dude,” Ms. Hanisee said. “Golden State Killer, he’s a white guy who was a cop.” She also noted that many of the 24 death row inmates who have exhausted all of their appeals — and would be next in line for executions if they were proceeding — were white men.
“Of the 24 or so who are presently eligible for execution, half of them are white men,” she said. “So let’s execute them.”
Bet you saw that coming. If the problem with the criminal justice system, with the death penalty, is racism, then it’s entirely logical that there is no impediment to the execution of white dudes on death row. After all, they couldn’t have been sentenced to death because of racism, so their executions are hunky dory. All the reform activists say so, right?
Not right. While the simplistic conflate the problems of a system too unreliable, too fraught with constitutional deprivations, junk science, false confessions, misidentification, and emotional myopia to be trusted to take any human beings life, not every person who supports reform subscribes to the false conflation of identity politics and structural legal failures. Lara Bazelon’s reaction to Hanisee’s entirely rational and completely outrageous call to kill was “where to start.”
If the only problem is racism, wouldn’t it be cool to execute at least the white guys? If it’s racist to execute only white guys, would it be acceptable if they only execute a proportionate number of black guys, as long as it wasn’t disproportionate?
If all of this strikes you as entirely absurd and terribly wrong, that’s because the problem with the death penalty is not racism, but the death penalty. And then, there’s racism on top of it, but it’s a separate problem.
Every time a politician, an activist, an academic or a popular twitter personality cries racism as the problem with the system, they validate Hanisee’s logic. It’s not that she’s right, but that her reasoning makes complete sense in response to their framing of the problem. Except her logic fails because their framing of the problem is wrong.
No, the execution of the white guys isn’t totally fine because they couldn’t have been sentenced to death because of racism, but because the system that purports to distinguish who deserves to die from who doesn’t, who is guilty from who is not, isn’t worthy of our trust. Does it get any worse? Probably, but this is bad enough for one day.