Thank You for Your Service: Acknowledging Our Inadequate Treatment of Jurors in California's Death Penalty Debate

• Publication year: 2019
• Author: By Elizabeth N. Jones and Sydney L. McGregor

THANK YOU FOR YOUR SERVICE: ACKNOWLEDGING OUR INADEQUATE TREATMENT OF JURORS IN CALIFORNIA'S DEATH PENALTY DEBATE

By Elizabeth N. Jones and Sydney L. McGregor^*

The death penalty in California faces an uncertain future. While this essay does not ask readers to adopt a position contrary to their own personal beliefs, it does propose that consideration be given to an integral and often overlooked group within the capital punishment process: the jurors.

California's death penalty is currently mired in an existential dichotomy of the state's own making. On one hand, its voters support and continually affirm the use of capital punishment. A 2016 ballot proposition seeking to abolish the death penalty was defeated; voters actually approved an initiative during that same election cycle to speed up the process.¹ California's immense size and diverse demographics certainly challenge the state to put forth a truly unified front, but its voters engaged in a democratic approval of its criminal justice policies.

On the other hand, on March 13, 2019, Governor Gavin Newsom issued an executive order suspending capital punishment in California.² This unilateral action grants temporary reprieves to all of the inmates on death row— over 700 at last count—and effectively closes San Quentin State Prison's execution chamber.³

California now joins three other states with similar gubernatorial death penalty moratoria.⁴ As such, the will of the California electorate has been effectively stymied by the very governor it recently voted into office. And though prosecutors may still pursue the death penalty, state executions cannot be carried out until Governor Newsom leaves office or the voters act to change the law.

Governor Newsom gave reasons for his decision to stop executions in California. They included concern over the high economic cost of implementing the death penalty, racial disparities between victims and perpetrators, and the Governor's own "personal morality."⁵ Jurors were not mentioned in any of Governor Newsom's press conferences and interviews. They should have been.

A capital trial is unique. In California, there are two separate phases: the guilt phase and the penalty phase.⁶ The guilt phase is identical to a typical murder trial. The jury has to determine that the defendant is not only guilty, but also that a special circumstance exists and has been proven beyond a reasonable doubt.⁷ If the jury votes affirmatively the defendant is thus eligible for death, and the case moves to the penalty phase. This phase acts as a sentencing hearing. The prosecution asks the jury to consider aggravating evidence to justify imposing the harshest penalty—death.⁸ Capital crimes by definition involve gruesome crime scene photos, harrowing testimony detailing heinous acts, and other emotionally charged evidence.

[Page 7]

Given the nature of the crimes one must commit before becoming death-eligible, jurors face a high probability of exposure to graphic materials during trial. Prosecutors must convey the utter depravity of a defendant's acts, even...