LOS ANGELES - You’d think Proposition 62, a referendum to abolish California’s death penalty and replace it with life without parole, including for the 749 current occupants of death row, would win easily on Nov. 8.
Democrats dominate this state; their 2016 national platform advocated an end to capital punishment. Former president Jimmy Carter, left-populist icon Sen. Bernie Sanders, I-Vt., the state’s major labor unions and 38 newspaper editorial boards are urging a “yes” vote.
California’s death row costs millions to maintain but the state has only executed 13 people since restoring capital punishment in 1978, mainly due to lengthy appeals processes, including recent successful challenges to its lethal-injection protocol.
“Replace the Costly, Failed Death Penalty,” read the yellow-and-black “Yes on 62” sign I saw planted in a well-kept Brentwood yard.
And yet, 12 days before Election Day, Prop 62’s prospects are uncertain. Of five statewide polls since Sept. 1, only one, a Field Poll, showed Prop 62 ahead, 48 percent to 37 percent. Measures that poll below 50 percent tend not to win, even if they are leading, according to Field Poll director Mark DiCamillo.
Meanwhile, four other polls showed “no” up by an average of 50 to 37. Survey USA, which has polled on Prop 62 twice, predicts flatly that it is “headed for defeat” - just like a similar anti-death-penalty measure that lost 52 to 48 in the state in 2012.
Prop 62 faces various local political headwinds - including competition for financial resources, and public attention, from more than a dozen other ballot measures, such as marijuana legalization and Gov. Jerry Brown’s pet project, parole reform.
Given Prop 62’s potential impact - in one stroke, it would reduce America’s total death-row population of 2,905 by 26 percent - the debate about it is remarkably low-profile. There are next to no ads on TV; the Brentwood yard sign was the only one I saw in three days on the West Coast.
The main lesson, though, has to do with public opinion about the death penalty, which is much more nuanced than media coverage generally reflects.
Consider this Oct. 4 New York Times headline: “Death Penalty Loses Majority Support for First Time in 45 years.”
The article concerned a new Pew Research Center survey showing that 49 percent of the public favors the death penalty for murder, while 42 percent oppose it. Pew has asked its question only since 1994, so the Times headline came from combining Pew data with pre-1994 Gallup polls.
However, this spliced two polls that use different methodologies, including differently worded questions. A few days after the Times article, in fact, a new Gallup poll found 60 percent support for the death penalty - a smaller majority than in previous years, to be sure, but still large, and about the same as Gallup found in its first poll 80 years ago.
Long-term Gallup trends suggest that the very high support for the death penalty of the mid-1990s - up to 80 percent one year - was an anomaly, probably a reaction to the soaring violent crime rates of the time.
Now that crime has fallen, Gallup’s pro-death-penalty majority is reverting to historical norms; it may go lower still, unless this year’s spike in violent crime turns into a wave. Another new Gallup survey intriguingly shows decreasing punitive sentiment: 45 percent say the justice system is “not tough enough” on crime, down 20 points since 2003.
Meanwhile, 50 percent believe the death penalty is applied “fairly,” and 67 percent say it is imposed either “the right amount” or “not often enough.”
Gallup asks about capital punishment for “murder.” In 2013 and 2015 Quinnipiac interestingly asked whether “murder during acts of terrorism” should be punished by life without parole or death.
Both times, about three-fifths said “death” - remarkably high, given that offering life without parole as an alternative usually reduces the number of poll respondents opting for capital punishment.
A rough summary of most Americans’ views of the death penalty might be: “Yes, though it depends.” It depends on what’s going on in society. It depends on the specific crime. It depends on whether you’re asking me in the abstract, as a juror or as a voter.
The very fact the Prop 62 campaign focused on what spokesman Jacob Hay calls a “cost-effectiveness message” implies that categorical moral opposition cannot command a majority, even in a deep-blue state.
And two can play at the cost- effectiveness game. California’s pro-death-penalty forces, led by prosecutors and police unions, are promoting Proposition 66, which would deal with the system’s notorious backlog not by abolishing executions but by facilitating them, through streamlining the appeals process.
Both conflicting measures might lose, essentially perpetuating the status quo; California would continue having whatever satisfaction comes with sentencing people to death, without whatever risks come from actually executing them.
Also, both might get a majority - Californians could vote yes and no on the death penalty - in which case the one with the most votes becomes law, and the nation’s largest death row would start shrinking, one way or the other.