By Lindsey J. Smith
Moments before Richard Allen Davis was sentenced to death in a San Jose courtroom for the kidnapping and murder of Polly Klaas, the young girl’s father addressed the court.
“He broke the contract; for that he must die,” Marc Klaas said on Aug. 5, 1996. “Mr. Davis, when you get to where you’re going, say hello to Hitler, say hello to Dahmer and say hello to Bundy. Good riddance, and the sooner you get there, the better we all are.”
Davis entered the Klaas family’s life on Oct. 1, 1993, when he broke into Polly Klaas’ mother’s home in Petaluma and kidnapped the 12-year-old. The ensuing two-month search engrossed the nation, and ended when Davis led investigators to the young girl’s body. But for Klaas, the torture was far from over, as the case evolved into an emotional three-year trial.
Klaas has looked forward to the killer’s execution as the lifting of a burden. But at sentencing, he never imagined that 20 years later he’d still be awaiting that day. Since 1996, Davis—who sits on death row in San Quentin State Prison, a scant 10 miles from Klaas’ Sausalito home—has had just one appeal heard. His situation is not necessarily unique; the majority of the state’s 747 condemned have been on death row for between 16 and 24 years, with one awaiting execution for 38 years.
Klaas spends his days running the KlaasKids Foundation, one of several nonprofits started in Polly’s memory. But after receiving a call from the California District Attorneys Association, he’s turned his attention to endorsing Proposition 66, a proposal to reform the death penalty headed for the November ballot.
“It was never my intention to be an outspoken advocate of the death penalty,” Klass says, “but apparently it just sort of played out that way.”
Come Election Day, Proposition 66 will be up against another death-penalty initiative, Proposition 62. Each initiative addresses California’s broken death-penalty system, which leaves the condemned to languish for decades. But the two plans present diametrically opposed solutions.
Simply called the California Death Penalty Repeal, Proposition 62 would replace the death penalty with life in prison without parole. The legislation sprung from the seeds of 2012’s Proposition 34, which would have abolished the death penalty had it not lost by a narrow margin.
“What the polling shows is that there’s a big difference in the way voters react to the question, ‘Do you want to end the death penalty, period?’ to ‘Do you think we should replace the death penalty with life without the possibility of parole?’” says Paula Mitchell, an author of Proposition 62 and professor at Loyola Law School in Los Angeles.
She and others behind the campaign found that voters are much more comfortable with the idea of substituting a life sentence rather than abolishing the death penalty altogether.
The legislation would also force death-row inmates to work in prison and pay restitutions to their victims’ families, a facet it shares with Proposition 66. District attorneys and elected officials, including Lt. Gov. Gavin Newsom and former president Jimmy Carter, have endorsed Proposition 62. It has also drawn an eclectic list of celebrity endorsers, including former CIA operative Valerie Plame, civil rights leader Dolores Huerta and entrepreneurs Richard Branson and Larry Flynt.
The death-penalty-repeal campaign is driven by a belief that the state’s system is fundamentally broken. Since 1978, when capital punishment was reinstated by voters after a brief abolition, California has spent more than $5 billion to run the largest death row in the Western Hemisphere. In that time, 930 people have been sentenced to death but only 15 have actually been executed, according to the state Legislative Analyst’s Office (LAO). No executions have been carried out in California in the last decade because of challenges to the state’s lethal-injection protocol.
For Mitchell, one of the most compelling reasons to abolish the death penalty is the risk of executing an innocent person. Since 1973, she notes, 144 people on death row have been exonerated nationwide.
“A lot of people around the world are coming to the same conclusion,” she says. “It’s a risky thing, it costs a lot of money; it’s just not worth it.”
On the other hand, Proposition 66, known as the Death Penalty Reform and Savings Act of 2016, contends that the death penalty is not beyond repair, and that it is our duty to fix it.
“This arose out of a will to represent the obvious desires of the majority of the citizens of the state of California,” says Michele Hanisee, a key opponent of 2012’s Proposition 34. “They voted not to eliminate the death penalty, which means they want the death penalty and they want it to work. It’s unfair to those citizens that it’s not working.”
Proposition 66, which is backed by a long roster of district attorneys, sheriffs and law enforcement, attempts to reform capital punishment on several levels. Appeals to the state Supreme Court based on the trial record would need to be completed in five years. Furthermore, all appeals based on evidence or issues outside the record, known as habeas corpus appeals, would need to be presented in one case; currently the condemned can submit as many habeas corpus appeals as they can muster.
The proposition would assign inmates counsel on the day of their sentencing, and would allow the state Supreme Court to force qualified attorneys to take capital appeals cases as a condition for being assigned to other cases in the future. Proposition 66 also allows the condemned to be housed in appropriate facilities other than San Quentin, the state’s death row for male inmates.
“When we talk about speeding up appeals, some of it sounds sort of unfair,” says Hanisee. But, she adds, slowing down the process can be equally unjust to inmates. In the first capital verdict she oversaw as a Los Angeles deputy district attorney, the condemned man waited four years to be assigned an appellate lawyer, and another year for the lawyer to get up to speed on the case. Eight years later, his appeal has received 21 extensions, according to Hanisee, and no opening brief has been filed.
“If [he] were innocent or had a legitimate cause, it’s not getting heard,” she argues. She estimates that Proposition 66 could shorten the appeals process by half.
Both campaigns claim they will save taxpayers millions of dollars annually. Proposition 62’s website says abolishing the death penalty will save the state $150 million per year, a figure that squares with a May 2016 report from the LAO. Regarding Proposition 66 savings, the LAO said it would come from the way inmates are housed and “could potentially reach the tens of millions of dollars annually,” not hundreds of millions. Overall, the report concludes that Proposition 66’s long-term fiscal impact is unclear because it would likely reduce caseloads but require state courts to be staffed at higher levels.
Fiscal arguments may sway some voters, but the death penalty at its core is an emotional issue. The propositions require a simple majority to pass, and if both receive more than 50 percent of the vote, the one with the higher percentage will become law. Decisions on propositions 62 and 66 could come down to choosing between seeing “the worst of the worst” punished or the fear an innocent person may be killed.
Twenty years have passed, but the death penalty remains an emotional issue for Klaas. Davis no longer dominates his thoughts the way he once did, but his extended stay on death row prevents the closure Klaas seeks.
“Oh, I’m gonna drink Champagne the night that he’s executed,” Klaas says, the white of sailboats in Richardson Bay glinting through his kitchen window. “The mere fact that he still exists on this earth influences my life and it influences my thoughts. So, eliminate him, and you eliminate that burden.”