Capital punishment debate in the United States
Opposition to capital punishment in the United States existed as early as the colonial period. Opposition to the death penalty peaked in 1966, rising to 47% opposition, higher than those who supported it (42%), the rest (11%) had 'no opinion'. The death penalty increased in popularity throughout the 1970s and 1980s, peaking in 1994 at 80%; since then, the anti-death penalty movement has strengthened again and the most recent Gallup poll in 2011 shows that 35% of Americans oppose the death penalty, an increase of over 80% over the last 17 years.
Arguments in opposition to the death penalty in the US include: the fact that a significant number of death row inmates are found to be innocent before execution, and that some executed criminals' convictions have been subsequently shown to be unsafe; the disproportionately high chance of poor and ethnic minority individuals to be sentenced to death compared with affluent whites committing similar crimes; lack of solid evidence for its deterrent effect; the "cruel and unusual punishment" clause introduced to the US constitution with the Eighth Amendment; and moral relativism, the idea that if it is wrong to kill then it is absolutely not relatively wrong—most religious bodies in the USA oppose the death penalty.
- 1 History
- 2 Wrongful execution
- 3 Racial and gender factors in the United States
- 4 Diminished capacity
- 5 Deterrence
- 6 Limits to Majority
- 7 Cost
- 8 See also
- 9 References
Abolitionists gathered support for their claims from writings by European Enlightenment philosophers such as Montesquieu, Voltaire (who became convinced the death penalty was cruel and unnecessary) and Bentham. In addition to various philosophers, many members of Quakers, Mennonites and other peace churches opposed the death penalty as well. Perhaps the most influential essay for the anti-death penalty movement was Cesare Beccaria's 1767 essay, On Crimes and Punishment. Beccaria’s strongly opposed the state’s right to take lives and criticized the death penalty as having little deterrent effect. After the American Revolution, influential and well-known Americans, such as Thomas Jefferson, Benjamin Rush, and Benjamin Franklin made efforts to reform or abolish the death penalty in the United States. All three joined the Philadelphia Society for Alleviating the Miseries of Public Prisons, which opposed capital punishment. Following colonial times, the anti-death penalty movement has risen and fallen throughout history. In Against Capital Punishment: Anti-Death Penalty Movement in America, Herbert H. Haines describes the presence of the anti-death penalty movement as existing in four different eras.
First abolitionist era, mid-to-late 19th century
The anti-death penalty movement began to pick up pace in the 1830s and many Americans called for abolition of the death penalty. Anti-death penalty sentiment rose as a result of the Jacksonian era, which condemned gallows and advocated for better treatment of orphans, criminals, poor people, and the mentally ill. In addition, this era also produced various enlightened individuals who were believed to possess the capacity to reform deviants.
Although some called for complete abolition of the death penalty, the elimination of public hangings was the main focus. Initially, abolitionists opposed public hangings because they threatened public order, caused sympathy for the condemned, and were bad for the community to watch. However, after multiple states restricted executions to prisons or prison yards, the anti-death penalty movement could no longer capitalize on the horrible details of execution.
The anti-death penalty gained some success by the end of the 1850s as Michigan, Rhode Island, and Wisconsin passed abolition bills. Abolitionists also had some success in prohibiting laws that placed mandatory death sentences of convicted murderers. However, some of these restrictions were overturned and the movement was declining. Conflict between the North and the South in the run-up to the American Civil War and the Mexican–American War took attention away from the movement. In addition, the anti-gallow groups who were responsible for lobbying for abolition legislation were weak. The groups lacked strong leadership, because most members were involved in advocating for other issues as well, such as slavery abolishment and prison reform. Members of anti-gallow groups did not have enough time, energy, or resources to make any substantial steps towards abolition. Thus, the movement declined and remained latent until after the post-Civil War period.
Second abolitionist era, late 19th and early 20th centuries
The anti-death penalty gained momentum again at the end of the 19th century. Populist and progressive reforms contributed to the reawakened anti-capital punishment sentiment. In addition, a “socially conscious” form of Christianity and the growing support of “scientific” corrections contributed to the movement’s success. New York introduced the electric chair in 1890. This method was supposed to be more humane and appease death penalty opponents. However, abolitionists condemned this method and claimed it was inhumane and similar to burning someone on a stake. In an 1898 op-ed in The New York Times, prominent physician Austin Flint called for the abolition of the death penalty and suggested more criminology-based methods should be used to reduce crime. Anti-death penalty activism of this period was largely state and locally based. An organization called the Anti-Death Penalty League was established Massachusetts in 1897. However, national leagues, such as the Anti-capital Punishment Society of America and the Committee on Capital Punishment of the National Committee on Prisons, developed shortly after. Many judges, prosecutors, and police opposed the abolition of capital punishment. They believed capital punishment held a strong deterrent capacity and that abolishment would result in more violence, chaos, and lynching. Despite opposition from these authorities, ten states banned execution through legislation by the beginning of World War I and numerous others came close. However, many of these victories were reversed and the movement once again died out due to World War I and the economic problems which followed. The American Civil Liberties Union, however, developed in 1925 and proved influential over its 47 year life span. The group focused on educating the public about the moral and pragmatic trouble of the death penalty. They also organized campaigns for legislative abolition and developed a research team which looked into empirical evidence surrounding issues such as death penalty deterrence and racial discrimination within the capital punishment process. Although the organization had little success when it came to abolition, they gathered a multitude of members and financial support for their cause. Many of their members and presidents were well-known prison wardens, attorneys, and academic scholars. These influential people wrote articles and pamphlets that were given out across the nation. They also gave speeches. Along with other social movements of the time, however, the group lost momentum and attention due to the Great Depression and World War II.
Third abolitionist era, mid-20th century
The movement in 1950s and 1960s shifted focus from legislation to the courts. Although public opinion remained in favor of execution (aside from during the mid 1960s when pro and anti opinions were roughly equal), judges and jurors executed fewer people than they did in the 1930s. The decline in executions gave strength to various new anti-capital punishment organizations. Among these groups were: a California-based Citizens Against Legalized Murder, the Ohio Committee to Abolish Capital Punishment, the New Jersey Council to Abolish Capital Punishment, California’s People Against Capital Punishment, the New York Committee to Abolish Capital Punishment, the Oregon Council to Abolish the Death Penalty, and the national Committee to Abolish the Federal Death Penalty. In addition to growing organizations, the movement also profited from growing European abolishment of the death penalty and from the controversial executions of Barbara Graham and Caryl Chessman. Success mounted in the late 1950s as Alaska, Hawaii, and Delaware abolished capital punishment. Oregon and Iowa followed their leads in the 1960s. Many other states added laws that restricted the use of the death penalty except in cases of extreme serious offenses. Abolitionists began to strongly challenge the constitutionality of the death penalty in the 1960s. Lawyers from the American Civil Liberties Union and from the NAACP Legal Defense and Educational Fund launched a major campaign challenging the death penalty’s constitutionality and insisted a moratorium for all executions while it was in process. The United States executed zero people from 1968 to 1976. The Anti-Death Penalty’s biggest victory of this time period was the Supreme Court Case, Furman v. Georgia, of 1972. The Supreme Court found the current state of the death penalty unconstitutional due to its “arbitrary and discriminatory manner” of application. The court, however, left states with the option to revamp their laws and make them more constitutional. Twenty eight states did just that and the court eventually allowed the death penalty again through a series of cases in 1976.
Contemporary anti-death penalty movement
The anti-death penalty movement slowly rose again after a brief moment of rest due to the reinstatement of capital punishment in many states. This time, however, the movement sprung in the form of a wide range of organizations rather than in the form of litigation and lawyers. Some of the most influential organizations who continue to work against capital punishment today include Amnesty International USA, the American Civil Liberties Union, the NAACP Legal Defense and Education Fund, and the National Coalition to Abolish the Death Penalty. The works of these organizations have brought about various restrictions on the use of capital punishment. Juveniles and the mentally ill or retarded can no longer be executed. In addition, the Supreme Court has made it more difficult to discriminate within the capital punishment process. Rather than possessing leaders and members who are possible beneficiaries of the movement’s success, the anti-death penalty movement is composed of “moral entrepreneurs” who speak up for those who are under threat of being executed. Membership is not as strong as those of mass movements because it is often composed of “paper membership,” which means members are with a group that represents other issues as well or members are involved in multiple other issue-oriented projects.
In a poll completed by Gallup in October 2009, 65% of Americans supported the death penalty for persons convicted of murder, while 31% were against and 5% did not have an opinion.
In the U.S., surveys have long shown a majority in favor of capital punishment. An ABC News survey in July 2006 found 65 percent in favour of capital punishment, consistent with other polling since 2000. About half the American public says the death penalty is not imposed frequently enough and 60 percent believe it is applied fairly, according to a Gallup poll from May 2006. Yet surveys also show the public is more divided when asked to choose between the death penalty and life without parole, or when dealing with juvenile offenders. Roughly six in 10 tell Gallup they do not believe capital punishment deters murder and majorities believe at least one innocent person has been executed in the past five years.
As a comparison, in Canada, Australia, New Zealand, Latin America, and Western Europe, the death penalty is a controversial issue. However certain cases of mass murder, terrorism, and child murder occasionally cause waves of support for restoration, such as the Robert Pickton case, the Greyhound bus beheading, Port Arthur massacre and Bali bombings, though none of these events or similar events actually caused the death penalty to be re-instated. Between 2000 and 2010, support for the return of capital punishment in Canada dropped from 44% to 40%, and opposition to it returning rose from 43% to 46%. The Canadian government currently "has absolutely no plans to reinstate capital punishment." Nonetheless, in a 2011 interview given to Canadian media, Canadian Prime Minister Stephen Harper affirmed his private support for capital punishment by saying, "I personally think there are times where capital punishment is appropriate." According to some polls, as of 2012, 63% of surveyed Canadians believe the death penalty is sometimes appropriate, while 61% said capital punishment is warranted for murder.
A Gallup International poll from 2000 said that "Worldwide support was expressed in favor of the death penalty, with just more than half (52%) indicating that they were in favour of this form of punishment." A number of other polls and studies have been done in recent years with various results.
Capital punishment is often opposed on the grounds that innocent people will inevitably be executed. Supporters of capital punishment object that these lives have to be weighed against the far more numerous innocent people whose lives can be saved if the murderers are deterred by the prospect of being executed.
Between 1973 and 2005, 123 people in 25 states were released from death row when new evidence of their innocence emerged. Whether all of these exonerations are cases of actual innocence rather than technical exonerations of the defendants due to legal issues in their cases that allow their convictions to be legally quashed is disputed by death penalty supporters.
Statistics likely understate the actual problem of wrongful convictions because once an execution has occurred there is often insufficient motivation and finance to keep a case open, and it becomes unlikely at that point that the miscarriage of justice will ever be exposed. In the case of Joseph Roger O'Dell III, executed in Virginia in 1997 for a rape and murder, a prosecuting attorney bluntly argued in court in 1998 that if posthumous DNA results exonerated O'Dell, "it would be shouted from the rooftops that ... Virginia executed an innocent man." The state prevailed, and the evidence was destroyed.
Despite this, some controversial cases have been re-investigated following the execution by state authorities, such as post-conviction DNA testing ordered by Mark Warner of evidence in the Roger Keith Coleman case in Virginia and reviewing the forensic evidence in the Cameron Todd Willingham case in Texas.
Another issue is the quality of the defense in a case where the accused has a public defender. The competence of the defense attorney "is a better predictor of whether or not someone will be sentenced to death than the facts of the crime".
Racial and gender factors in the United States
People who oppose capital punishment have argued that the arbitrariness present in its administration make the practice both immoral and unjust. In particular, they point to the systemic presence of racial, socio-economic, geographic, and gender bias in its implementation as evidence of how the practice is illegitimate and in need of suspension or abolition. 
According to Craig Rice, a black member of the Maryland state legislature: "The question is, are more people of color on death row because the system puts them there or are they committing more crimes because of unequal access to education and opportunity? The way I was raised, it was always to be held accountable for your actions."
As of 2010, women account for only 1.7% (55 people) of inmates on death row, with men accounting for the other 98.3% (3206). Since 1976, only 1.0% (12) of those executed were women.
In the United States, there has been an evolving debate as to whether capital punishment should apply to persons with diminished mental capacity. In Ford v. Wainwright, the Supreme Court held that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of execution-time sanity must be determined in a proceeding satisfying the minimum requirements of due process. In Atkins v. Virginia, the Supreme Court addressed whether the Eighth Amendment prohibits the execution of mentally retarded persons. The Court noted that a "national consensus" had developed against it. While such executions are still permitted for people with marginal retardation, evidence of retardation is allowed as a mitigating circumstance. However, a recent case of Teresa Lewis who was the first woman executed in Virginia since 1912, proved to be very controversial because Governor Bob McDonnell refused to commute her sentence to life imprisonment, even though she had an IQ of 70.
The existence of a deterrence effect is disputed. Studies – especially older ones – differ as to whether executions deter other potential criminals from committing murder or other crimes.
One reason that there is no general consensus on whether or not the death penalty is a deterrent is that it is used so rarely - only about one out of every 300 murders actually results in an execution. In 2005 in the Stanford Law Review, John J. Donohue III, a law professor at Yale with a doctorate in economics, and Justin Wolfers, an economist at the University of Pennsylvania, wrote that the death penalty "... is applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors... The existing evidence for deterrence... is surprisingly fragile." Wolfers stated, "If I was allowed 1,000 executions and 1,000 exonerations, and I was allowed to do it in a random, focused way, I could probably give you an answer."
Naci Mocan, an economist at Louisiana State University, authored a study that looked at all 3,054 U.S. counties over death penalty on lots of different grounds... But I do believe that people respond to incentives." Shepherd found that the death penalty had a deterrent effect only in those states that executed at least nine people between 1977 and 1996. In the Michigan Law Review in 2005, Shepherd wrote, "Deterrence cannot be achieved with a halfhearted execution program."
The question of whether or not the death penalty deters murder usually revolves around the statistical analysis. Studies have produced disputed results with disputed significance. Some studies have shown a positive correlation between the death penalty and murder rates – in other words, they show that where the death penalty applies, murder rates are also high. This correlation can be interpreted in either that the death penalty increases murder rates by brutalizing society, or that higher murder rates cause the state to retain or reintroduce the death penalty. However, supporters and opponents of the various statistical studies, on both sides of the issue, argue that correlation does not imply causation.
The case for a large deterrent effect of capital punishment has been significantly strengthened since the 1990s, as a wave of sophisticated econometric studies have exploited a newly-available form of data, so-called panel data. Most of the recent studies demonstrate statistically a deterrent effect of the death penalty. However, critics claim severe methodological flaws in these studies and hold that the empirical data offer no basis for sound statistical conclusions about the deterrent effect.
Surveys and polls conducted in the last 15 years show that some police chiefs and others involved in law enforcement may not believe that the death penalty has any deterrent effect on individuals who commit violent crimes. In a 1995 poll of randomly selected police chiefs from across the U.S., the officers rank the death penalty last as a way of deterring or preventing violent crimes. They ranked it behind many other forms of crime control including reducing drug abuse and use, lowering technical barriers when prosecuting, putting more officers on the streets,and making prison sentences longer. They responded that a better economy with more jobs would lessen crime rates more than the death penalty In fact, only one percent of the police chiefs surveyed thought that the death penalty was the primary focus for reducing crime.
However, the police chiefs surveyed were more likely to favor capital punishment than the general population.
In addition to statistical evidence, psychological studies examine whether murderers think about the consequences of their actions before they commit a crime. Most homicides are spur-of-the-moment, spontaneous, emotionally impulsive acts. Murderers do not weigh their options very carefully in this type of setting (Jackson 27). It is very doubtful that killers give much thought to punishment before they kill (Ross 41).
But some say the death penalty must be enforced even if the deterrent effect is unclear, like John McAdams, who teaches political science at Marquette University : "If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call."
- "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death."
Maimonides argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice." Caprice of various sorts are more visible now with DNA testing, and digital computer searches and discovery requirements opening DA's files. Maimonides' concern was maintaining popular respect for law, and he saw errors of commission as much more threatening than errors of omission.
Cass R. Sunstein and Adrian Vermeule, both of Harvard law school, however, have argued that if there is a deterrent effect it will save innocent lives, which gives a life-life tradeoff. "The familiar problems with capital punishment—potential error, irreversibility, arbitrariness, and racial skew—do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form." They conclude that "a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment." As with academic global warming denial, they seem a minority reaction to an existing majority opinion. Regarding any attempt to make a utilitarian moral argument for capital punishment, Albert Camus wrote:
- "Capital punishment is the most premeditated of murders, to which no criminal’s deed, however calculated, can be compared. For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date on which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not to be encountered in private life." - Reflections on the Guillotine
Limits to Majority
In theory, opponents of capital punishment might argue that as a matter of principle, death penalties collide with the substance of Madison’s understanding on democratic rule. According to the Madisonian principle, the majority’s will shall prevail, but at the same time, the minority shall be respected. Hence, the majority cannot pass legislation which imposes the death penalty for the simple reason that such legislation eliminates in toto the minority that chooses to disobey the law. Thus the question pertaining to capital punishment is whether the majority has the power to enact legislation imposing capital punishment on the minorities that disobey the laws and exercise the prohibited conduct. As a result, the punishment for disobeying the law, i.e. the prohibition to murder, cannot be the death penalty, because its threatens the existence of the minority.
Recent studies show that executing a criminal costs more than life imprisonment does. Many states have found it cheaper to sentence criminals to life in prison than to go through the time-consuming and bureaucratic process of executing a convicted criminal. Donald McCartin, an Orange County, California Jurist famous for sending nine men to death row during his career, has said, "It's 10 times more expensive to kill [criminals] than to keep them alive."  This exclamation is actually low according to a June 2011 study by former death penalty prosecutor and federal judge Arthur L. Alarcón, and law professor Paula Mitchell. According to Alarcón and Mitchell, California has spent $4 billion on the death penalty since 1978, and death penalty trials are 20 times more expensive than trials seeking a sentence of life in prison without possibility of parole. Studies in other states show similar patterns.
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