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Capital punishment opponents, including many prisoners on death row, want voters to know about life without the possibility of parole
by Sam Lefebvre

Many opponents of state-sanctioned execution in California refer to prison sentences of life without parole as “the other death penalty.”

And they’re complicating voters’ choice come November 8th, when Californians reckon with two competing ballot measures to overhaul capital punishment: Proposition 66, which looks to expedite executions and save money, and Proposition 62, aimed at repealing the death penalty and resentencing the state’s current death row prisoners to life without the possibility of parole (LWOP).

To those who object to capital punishment, the choice between Prop 66’s bloodlust in the guise of fiscal responsibility and Prop 62’s bid to abolish a baldly barbaric fixture of the carceral state at first seems clear.

And yet many activists, including incarcerated people, emphasize that though there’s value to decommissioning the lethal-injection chamber at San Quentin State Prison — Prop 62 hardly impacts the state’s authority to condemn people to death. If anything, it softens the language of death’s administration.

“Proposition 62 only appears progressive,” said Mohamed Shehk of the prison-abolitionist organization Critical Resistance, which is nationally headquartered in Oakland. Like Proposition 47 — which in 2014 reduced certain drug felonies to misdemeanors but also amplified police presence in public schools — Shehk cast Prop 62 as a reform that actually expands the prison-industrial complex. “Making LWOP the alternative to the death penalty actually legitimizes something that’s equally absurd.”

In 2006 in California, legal challenges to lethal-injection instated a de facto moratorium on formal executions. California currently boasts over 700 death row prisoners, more than any other state. Washington, DC nonprofit The Sentencing Project put the state’s LWOP population at 4,603 in 2012. Prop 62 would distribute death row prisoners, currently sequestered in facilities in Northern and Central California, throughout the general prison population.

(The life with parole population exceeded 40,000 in 2012, including hundreds of people sentenced for crimes committed as minors.)

The Campaign to End the Death Penalty, a national organization that opposes Prop 62, sent a questionnaire to California death row prisoners about November’s competing propositions. Of 46 respondents, 21 people oppose Prop 62, 17 support it, and seven indicated no clear position. “LWOP is another, longer, more torturous form of the death penalty,” replied Sergio Nelson. “A person with that sentence is meant to die in prison.”

Many of the death row prisoners who oppose Prop 62 noted that, should they be resentenced to LWOP, it would mean a loss of their current options for legal recourse. Recent developments in Nelson’s case illustrate the difference between the entitlement to appeals allotted death row and LWOP prisoners. In August, the California Supreme Court set aside Nelson’s death sentence following decades of protracted appeals with court-provided attorneys — the sort of hard-earned sentencing reversal that Prop 62 would preclude.

Nelson was 19 and, his defense argued, psychologically troubled when in 1993 he shot and killed two former Target co-workers in Southern California. He’d quit weeks before, upset that he was neglected for promotion, according to court records.

Nelson had no prior criminal history. The juries who convened to sentence him repeatedly deadlocked when it came to deciding between death and life without parole. The presiding judge questioned jurors about their deliberation both in chambers and in open court, and eventually he removed a holdout — a move that the State Supreme Court decried in its August decision as an “intrusive influence.”

Also in August, courts overturned the convictions and death sentences of Craigen Lewis Armstrong, reasoning that a juror was also improperly removed from his trial; and James Edward Hardy, finding that the defendant’s lawyer failed to investigate exculpatory evidence that the state’s key witness was in fact the one guilty of the crimes, a double murder from 1981.

If Prop 62 passes, death row prisoners’ various avenues of appeal — which in these cases resulted in findings of judicial misconduct, procedural error, and incompetent defense — would be significantly undercut. Death row prisoners such as Nelson, Armstrong, and Hardy receive court-appointed attorneys for an automatic direct-appeal to the California Supreme Court and habeas corpus petitions at both state and federal levels — but LWOP prisoners receive only a direct appeal.

Nelson, on the questionnaire, wrote that if he weren’t prohibited from voting as a felon, he would vote No on Prop 62.

“The symbolism of ending executions is important,” said Adrienne Skye Roberts, a member of prisoner-led organization California Coalition for Women’s Prisoners. “But knowing what I do about LWOP, it would feel less like a victory … It would actually lock in this perception of LWOP as a sentence lesser than death at a time when we’re trying to erode it.”

Roberts, who’d just returned from visiting prisoners at Central California Women’s Facility in Chowchilla when we spoke, is concerned about Prop 62’s impact on advocacy for the current LWOP population.

It could detract scrutiny from a legal precept known as the “felony-murder rule,” which provides that when someone is killed during the commission of certain dangerous felonies, prosecutors can pursue murder charges against a participant in the underlying felony — even if that person had no direct involvement in the homicide, and no specific intent. (Specific intent is otherwise a required element of the crime of murder.)

In other words, it can mean that a minor participant in such scenarios — say, the driver of a car used for a robbery that results in a killing — can be penalized with LWOP. As Roberts pointed out, many people serving LWOP were charged as “aiders and abettors” to crimes perpetrated by abusive partners.

Since changes to the Penal Code through voter initiative can only be modified by further voter initiative, Prop 62 deeply entrenches LWOP as California’s most severe category of punishment. And that disturbs Roberts, who said that most of the LWOP prisoners she knows are “survivors of abuse with no prior record who didn’t have the resources or support they needed to leave abusive situations, and whose own lives may have been threatened prior to their arrest — these realities are not considered in the language of the proposition.”

In other words, Prop 62 would reinforce a notion of these LWOP prisoners as “the worst of the worst,” she said, referring to the text of the measure itself: “Life in prison without the possibility of parole ensures that the worst criminals stay in prison forever and saves money.” (Emphasis ours.)

Hence, Roberts said that Prop 62 could undermine activists’ efforts to repeal the felony-murder rule, or to pursue other such meaningful reforms for the LWOP population.

Roberts provided transcripts of interviews with current LWOP prisoners, whose last names she requested be abbreviated. “We’re just kinda like the dust in the crack that’s just not seen,” wrote Liz S. “And we just don’t receive the same legal attention when we have the same needs. We are just like those on death row; we are sentenced to death. It just happens naturally.” As Susan R. put it, “LWOP maybe is an easier way to say ‘death penalty.’”

Roberts emphasized that the LWOP population is barred from many formal rehabilitation programs — even though they disproportionately lead peer-organized support groups and act as a stabilizing force inside. “The prison system relies on them for a particular kind of emotional labor, yet discriminates against them.”

Activists such as Roberts want voters to know that Prop 62 leaves thousands effectively sentenced to death — and hundreds of them with fewer resources than before. Such a rejection of capital punishment, in other words, only applies a veneer of civility to the same practice. In the measure’s language, “They [still] spend the rest of their lives in prison and they die in prison.”

“The fact that you are doing this is just aggravating because we all know your true interest lies in a pool of self-gratifying ‘feel-good’ altruism,” wrote Stephen Hajek on Campaign to End the Death Penalty’s questionnaire. “These types of initiatives are written to make you feel better, not us.”

This piece was co-published with Degenerate Digest.

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