By David M. Greenwald
Death Penalty Focus, a California-based non-profit dedicated to the abolition of the death penalty, hosted a webinar on Tuesday featuring a discussion on the death penalty.
Panelists included Texas-based DA Mark Gonzalez, Los Angeles DA George Gascón and Miriam Krinsky from Fair and Just Prosecution.
Gonzalez, who started his career as a defense attorney, noted that most of the DAs throughout Texas—and there are 254 counties in the state, by far the most in the nation—“are clueless to the amount of people that are on death row, the amount of individuals that have been exonerated.”
Gonzalez said “because of the things that I’ve learned, it is just something that we shouldn’t ever do again, so I’m not seeking the death penalty anymore.”
Miriam Krinsky noted that when she was a federal prosecutor in the 80s and 90s, “it was more an autopilot. Prosecutors just weren’t grappling with this issue. This was the starting point and it wasn’t really about if they should seek the death penalty, but more, it was about how to make the system work.”
She said that she came to the issue herself “when I became a prosecutor with some deep moral reservations about the notion of a death penalty, but it was what the landscape provided for.”
But back then, making the process better was about “how do we make it quicker? How do we make it more expeditious?” She said, “That speeding up sadly, I think tragically came at the expense of people’s rights. It was about curtailing rights, rather than really doing what was fair, what was equitable, what was appropriate, not just for the individual, but for what it says about us as a community, as prosecutors.”
Krinsky added that “over time, I started to see a lot of prosecutorial views evolve. I started to see an increasing recognition that this system fundamentally is a failed one, and we can’t fix it at the margins.”
For Mark Gonzalez they are in a strange position, as he explained that in Texas it is the job of the DA to ask for a date of execution.
Gonzalez explained, “I didn’t know that I didn’t have to do that.”
He said in the case of John Henry Ramirez, they had asked for his date of execution like three or four times, but there have been issues through the appellate process and it occurred to him one day, “Well, what if I don’t ask for the date of execution?”
However, “unbeknownst to me one of my appellate lawyers actually asked for the date of execution.” When he found out about it, “I filed a motion to withdraw the date. We’re having a hearing on the 21st, regarding the date of execution.”
He said, “It’s one of the ways that I said, you know what, I’m not going to seek the death penalty anymore and while I am in office, right, I’m not going to ask to set any, any executions and we’ll see what happens.”
He said, “The AG has weighed in and said if I cannot do my job, that they’ll be happy to take over the case for me.”
In February, 57 elected prosecutors issued a joint statement calling for systemic changes to end the death penalty nationwide.
They noted, “The United States was one of only 18 countries, the only Western democracy, and the only country in the Americas to use the death penalty in 2020.”
They said the process that is imposed is “arbitrary and capricious.”
They said, “Today, we have a capital punishment system that costs taxpayers over $1 million per death sentence, runs counter to our constitutional ban against cruel and unusual punishment and guarantees of due process and equal protection, fails as an effective deterrent, and does not reduce crime.”
Krinsky noted, “in February of this year, we brought over 55 sitting elected prosecutors together, where they said as ministers of justice, that they were obliged to seek outcomes that advance equity, fairness, community safety, and the rule of law;, that they were obligated to reject arbitrariness racism and cruelty.”
George Gascon noted that when he became DA in San Francisco in 2011, after being involved in law enforcement for 30 years, “right off the gate in 2011, I said that I would never seek the death penalty.” He said, “I made it very clear that not only did I think that the death penalty and the application of it was racist as to California, I didn’t see any utility in terms of public safety, right. We know it’s not a deterrence.”
He added, “We know that it’s irreversible and we have seen over and over again the system does make mistakes.”
He said, “Not only is it socially irresponsible, but it’s physically irresponsible. In our own state of California, the cost of doing a death penalty prosecution is so much more than doing other (punishments), that even seeking life without the possibility parole, which I don’t necessarily subscribe to either, but you know, that being the alternative that we have here, when we have cases that have what we call special circumstances.”
So for him, “it was very straight forward,” he said. “It’s something that is inhumane. It has no utility in the modern society, and on top of those things, we have all the trappings of racism, and the fact that you make mistakes, that I just could not see myself seeking to death penalty any longer.”
Krinsky reiterated that the US is the only country in the Western World with the Death Penalty.
“As we look around the globe in many ways, we should be relatively embarrassed at where we are,” she said. “We were one of only 18 countries and the only Western democracy to use the death penalty in 2021. Over a hundred countries have simply abolished the death penalty.”
She said, “I think it forces us to do a bit of soul searching and examine, why do we stand alone? Why are we willing to abide by this particularly shameful position in our country?”
She noted that “executions in our country have been steadily declining since the 1980s. Last year, we saw the fewest executions of any year since 1988.”
23 states have banned the death penalty altogether and another three have moratoria that prevent executions from being carried out – including in California.
“So we see a trend line,” she said.” She added, “That’s a positive thing, but in our mind, it’s not enough. We need to be pushing further to see how we can reach a point where we join the rest of the world in banning this nationwide.”
Krinsky added, “In fact, we’ve seen far too many people exonerated despite how difficult it is and the tremendous barriers that exist to achieve exoneration in our criminal justice system. We also know that when we look at the national academy of science’s recent observation, that they conservatively estimate that over 4% of the current death row prisoners are innocent.”
She stated, “if that number is correct, that means we have around a hundred innocent people sitting on death row. As we stand here, sit here today.”
Krinsky continued, “We also know that the death penalty, as with so much else in our criminal justice system, is racially discriminatory.”
The key variable is not only that Black Americans are about two and a half times more represented on death row than they are in the general population, “We also know that the race of the victims is sadly a tremendous driver for whether capital punishment will result or not — people who kill white victims are far more likely to be subjected to capital punishment than those who kill black victims.”
Krinsky said, “we know that this bias, that pervades our entire criminal justice system, that when it comes at the cost of implicating life and death decisions, I think we should accept the notion that the stakes are just too high to embrace a system that puts to death individuals who have been part of this racially discriminatory starting point.”