Few Voices--Even Among Liberals--Heard in Opposition : Death Penalty: a Focal Point of Politics

Los Angeles Mayor Tom Bradley, former policeman and would-be governor, faced up to years of confusion, self-generated political fog and seeming misunderstanding, and declared:

“To put it neatly and in a few words, I am in favor of the death penalty.”

Atty. Gen. John Van de Kamp will not discuss the reasons for his long-held opposition to capital punishment. But he said reassuringly he is “used to” suppressing these feelings in favor of his duties as prosecutor, including assistance in drafting California’s death penalty law and publicly criticizing the California Supreme Court for delays in deciding capital cases.

Lt. Gov. Leo T. McCarthy was more dramatic.

After an adult lifetime in opposition to capital punishment, he announced this summer: “I conclude the death penalty is warranted for murderers who have no regard whatsoever for human life.”

Capital punishment, as one might guess, is once again stalking a California election.

And even liberal-leaning Democrats like these three, with a combined 54 years in public office and no particular reputation for buckling under to passing political fashions, are not apart from the growing clamor in California to put San Quentin’s two-seat institutional-green gas chamber to use.

Perhaps these Democratic leaders represent the changing times or maybe they are changing to fit the times. But it is quite clear that as the 1986 elections approach, the politics of the death penalty are changing, and politicians actively seeking repeal of capital punishment are about as rare as great white sharks basking on the San Diego Freeway.

“People viewing this issue in relative calm, not in a moment of rage, are convinced there is an extraordinary injustice, a devastating chasm between what happens to the victim on one hand and the extent of punishment on the other,” McCarthy said, in explaining his change of heart. “The average prison stay for a first-degree murderer is 10 to 13 years.”

Van de Kamp, former Los Angeles County district attorney who is expected to seek reelection next year to a second term as state attorney general, is accustomed to taking an oath to uphold a law he is morally opposed to. “You get used to doing it. I’ve worked it out so that I carry out my responsibilities the way they should be done--carefully,” he said.

Carefully is also the way Van de Kamp handles the impassioned advocates of the death penalty. He spares them any sermons on his views, explaining, “I don’t think it serves any purpose.” And he seems to seek out situations in which he and opponents have shared opinions, such as in voicing complaints about perceived court delays in capital cases.

As for his office providing assistance in writing a 1977 version of the state death penalty law, Van de Kamp explained, “I wanted to make sure the law was drafted fairly.”

Bradley, for his part, said his views have “grown tougher” over the years but have been fundamentally pro-death penalty for “as far back as I can remember.”

The statement surprised some of the most senior members of his staff and long-time observers who believed him to be philosophically opposed to the death penalty except in cases involving the murder of a policeman, prison guard or public official.

For instance, in 1982 when he ran for governor and lost to Republican George Deukmejian, perhaps California’s foremost advocate of capital punishment, Bradley passed up countless chances, including a television debate, to deny assertions that he was anti-death penalty. He said only that he would enforce the law.

Limited Opposition

But in his recent interview with The Times, Bradley said his only opposition to the death penalty has been when it was “unduly weighted against minorities, against the poor.”

Beyond that, the mayor declared, “I feel we must have some means of protecting society against heinous criminals who have no concern, no compassion for human life and who would not be stopped under any circumstances with anything short of the death penalty.”

Bradley said he would not guess whether California’s current statute meets the constitutional test of equal application, leaving that to the California Supreme Court.

If Bradley’s new-found clarity on the subject comes as a surprise, not so the public’s vehemence.

The Gallup Poll in 1966 surveyed the nation and found that 47% of the people opposed the death penalty and only 42% supported it. By earlier this year, the numbers had dramatically shifted, and Gallup found that supporters outnumbered opponents 72% to 20%. A more recent survey by The Los Angeles Times Poll found that Californians favored the death penalty 75% to 16%.

13-Year History

Behind those numbers is a 13-year history of capital punishment politics in California, an unfinished saga that points now toward the 1986 elections and the state Supreme Court:

In February, 1972, the state Supreme Court ruled that the death penalty violated the state constitutional prohibition against cruel and unusual punishment. By that November, advocates of capital punishment, led by then-state Sen. Deukmejian, put an initiative on the ballot to amend the Constitution and allow for executions. It passed 68% to 32%.

A 1973 state statute authored by Deukmejian passed with the aim of implementing the new constitutional provisions. It was unanimously declared invalid by the state Supreme Court in 1976. Deukmejian assembled an even more carefully drawn statute in 1977, which was adopted by the Legislature over the veto of Gov. Edmund G. Brown Jr. That law was deemed constitutional by the state Supreme Court.

The following year, former state Sen. John Briggs sponsored an initiative to expand the death penalty law and make it apply to more murderers. The public backed it 71% to 29%, and it replaced the statute authored by Deukmejian and remains in effect today.

32,740 Homicides

Since 1972, about 32,740 Californians--the equivalent of a city the population of Turlock--have been killed in willful homicides. And Death Row has grown like a boom town; there are now two of them at San Quentin, with a population of 167.

Still, the gas chamber remains empty, no cyanide pellets poised to plop into sulfuric acid and release the fatal vapors that extinguish a life for a life.

So, attention turns ahead to November, 1986, when six of seven justices of the California Supreme Court, including the chief justice, will be up for a statewide vote on whether they should remain in office. Opponents are making capital punishment the driving issue in their quest to alter the composition of the high court.

Although voting is still 15 months away, interest and off-year campaign activity is already so intense that even political principals profess amazement. “I’ve never seen anything like this in my 33 years in politics,” said Bill Roberts, strategist for one of several groups seeking to oust Chief Justice Rose Elizabeth Bird and some of the other court liberals.

Bird has not publicly voiced her personal view on the death penalty. But her chief spokesman, former California Bar President Anthony Murray, said earlier this year, “She will vote for it without any question” once constitutional questions are resolved.

However, critics such as Deukmejian believe she and the court majority are committed death penalty opponents and would go to any length to avoid seeing it carried out. Bird has never voted to uphold a death sentence in the 36 cases in which she has participated.

Target for Ouster

One justice targeted for ouster by some, but not all, conservative critics is the senior member of the court, Stanley Mosk, who has indicated he may retire rather than endure a highly charged political campaign. In an interview, Mosk said he felt capital punishment could not be separated from the 1986 elections.

“I think the governor has succeeded in making it a death penalty issue. He rode into the governorship on the strength of the death penalty and it has been his primary issue ever since,” Mosk said.

Assembly Speaker Willie Brown (D-San Francisco) is one of the few Democratic leaders in California who is outspoken in opposition to the death penalty. But even he, in a remark widely quoted earlier this year, said the court could blunt attacks against it “if some of those people on Death Row actually feel the full weight of their penalty.”

Court supporters generally object to the election being cast as a referendum on the death penalty, crime or any other single issue. Instead, they argue, it is a test of judicial independence from day-to-day political pressures.

Other justices on the conservative ouster list are Cruz Reynoso and Joseph P. Grodin.

Deukmejian Appointee

Conservatives have not targeted Deukmejian’s lone appointee to the court, Justice Malcolm M. Lucas. By Election Day, Deukmejian is expected to have a second justice on the court to replace retiring Otto M. Kaus.

Two strongly differing views are voiced on how much the death penalty debate and court election may spill over into other election races next year.

Some believe the chemistry is right for the debate to dominate the statewide elections much as the property tax revolt of Proposition 13 did in 1978.

“I think it will be one of the dominant issues, absolutely,” said state Sen. John Garamendi (D-Walnut Grove), a death penalty supporter who is seeking to mount a campaign for governor.

Said former Los Angeles County Dist. Atty. Robert H. Philibosian, a death penalty advocate and would-be Republican candidate for attorney general: “For the average voter, it’s going to be the overriding issue. To the average voter, the death penalty is symbolic of a society that is trying to protect itself against the lawless.”

Opposing View

This view, however, is challenged by others in politics, who don’t see an issue that people have lived with so long suddenly becoming so consuming.

Take Assemblyman Patrick Johnston (D-Stockton). A death penalty opponent, Johnston was challenged in last year’s elections by a former policeman who never let up on the issue. Johnston saw his popularity drop somewhat in the polls, but not enough to cost him a victory. “I expect I’ll be baited again,” he shrugged.

Assembly Speaker Brown said he believes Johnston’s determination is the exception.

“Most everybody has already bailed out,” Brown explained. “Any politician who sees the death penalty as a liability already has distanced himself from it for the most part.”