Newly Elected Prosecutors Are Challenging the Death Penalty

Two more anti-death penalty DAs were elected last week, and the new Los Angeles DA confirmed he would review past sentences.

Daniel Nichanian   |    December 9, 2020

George Gascón (Photo by Shawn Calhoun is licensed under CC BY-NC 2.0)

This article originally appeared on The Appeal, which hosted The Political Report project.

Two more anti-death penalty prosecutors were elected last week, adding to an earlier string of similar results. On Monday, the new Los Angeles DA confirmed he would review past sentences.

Death penalty opponents have made great strides over the last decade, getting states to outlaw the sentence or at least reduce its use. Now they’re gaining allies from local officials with direct power to shut down capital punishment: prosecutors. 

Last week, Deborah Gonzalez and Jason Williams became the latest candidates to win elections for district attorney after pledging to never seek the death penalty once in office.

Their runoff wins in Athens, Georgia, and New Orleans add to a string of similar results this year in Los Angeles County, Arizona’s Pima County (Tucson), Georgia’s Fulton County (Atlanta), Oregon’s Multnomah County (Portland), and Texas’s Travis County (Austin). Incoming prosecutors largely echoed advocates’ longtime claims, emphasizing that the death penalty is applied very unequally and that its use is inhumane and costly.

Their wins are poised to upend the culture of capital punishment in places that have been prolific in handing out death sentences, and advocates are preparing to press them to overturn these past sentences.

There are more than 200 people on death row from Los Angeles, where the DA election in November saw George Gascón defeat an incumbent who over the course of her tenure secured the death penalty nearly exclusively against people of color. Gascón took office this week and promptly repeated his campaign pledge to not just drop the death penalty in future cases but also review past death sentences, a step few prosecutors have taken.

“The death penalty does not make us safer,” Gascón tweeted on Monday. “It’s racist, morally untenable, irreversible, and expensive. And today, it’s off the table.”

Pima County has also been a death penalty hotspot. It leads Arizona counties in number of executions since the penalty was reinstated in 1976. But this fall voters elected as their chief prosecutor a former public defender, Laura Conover, who highlighted her past advocacy with the Coalition of Arizonans to Abolish the Death Penalty. Conover is not the first candidate with such experience to be elected. Parisa Dehghani-Tafti, who was the legal director of the Mid-Atlantic Innocence Project, won a prosecutor’s race in northern Virginia last year on a similar platform.

“It’s absolutely tremendous and exciting that this is taking place in Louisiana, and in Georgia, and in Virginia, states that have a long history with the death penalty, and of course Los Angeles County, one of the biggest contributors to the enormous Californian death row,” said Laura Porter, executive director of the 8th Amendment Project. “It’s supportive of the trend of the country overall moving away from the death penalty.”

These seven newly elected prosecutors who said they would never seek a death sentence are Democrats, even though Republicans haven’t been absent from the anti-death penalty movement. Support from some Republican lawmakers proved decisive in 2019 and 2020 when Colorado and New Hampshire’s legislatures repealed the death penalty. (The Political Report only analyzed candidate positions in the 28 states where the death penalty is still legal.)

Elsewhere, longtime prosecutors who have repeatedly used the death penalty lost re-election bids. Most notably, Ron O’Brien is on his way out in Franklin County, Ohio, after decades of zealously championing capital punishment. The incoming prosecutor, Democrat Gary Tyack, told the Political Report via a spokesperson during his campaign that he would support legislation to ban the death penalty but also that he would consider seeking it as long as it is permitted by the state. Patsy Austin-Gatson, the incoming Democratic DA in Gwinnett County, Georgia, told the Political Report the same thing this week. 

Advocates hope that more DAs will draw strong lines in the sand and rule out adding people to death row. 

But they also stress that, even with those who make such forward-looking commitments, more is needed. Prosecutors who oppose the death penalty should also use all legal and political means at their disposal to resentence people who are already on death row and to fight their executions.

“It’s really important … to push prosecutors not just to say, ‘I’ll refrain from using this harsh practice in the future,’ but to refuse to preside over it in the present,” said Ben Cohen, an attorney who works against the death penalty in Louisiana. “It’s barbaric to allow death sentences from the 1980’s and 1990’s to be executed on your watch.”

“A progressive prosecutor has to do more than sit on their hands,” he added.

Defense attorneys have had some success in recent years overturning sentences in Louisiana, but Cohen said he has not seen cooperation from the outgoing DA’s office in New Orleans, where there are five people on death row. DA Leon Cannizzaro did not seek re-election this year, and he will be replaced by Williams, who won in a landslide on Saturday after embracing a reform platform put forth by local organizers that included opposition to the death penalty. He did not answer a request for comment this week about how he will address people already on death row.

In Los Angeles, though, Gascón released a plan early in his campaign outlining how he would aim to get people off of death row “utilizing every legal avenue available to me.” 

“It’s completely transformative,” said Natasha Minsker, an attorney who is part of Gascón’s transition team on the death penalty. “The fact that Los Angeles County is now, as of today, going to stop pursuing death sentences and going to shift in a different direction … is a complete game changer.” No county in the nation has more people on death row than Los Angeles; Angelenos approved abolishing capital punishment in a 2016 referendum but the initiative failed statewide. 

Minsker outlined the range of tools that Gascón can use. Where there is active litigation over a specific legal or factual issue, he could concede arguments made by defense attorneys “and no longer fight for [death sentences] to be in place,” she said. Many appeals are handled by the attorney general rather than the DA, but Gascón could still file amicus briefs to assist people contesting their sentences.

Gascón could also request a resentencing hearing for someone on death row, Minsker said. DAs don’t necessarily have this power nationally; here it stems from California’s relatively new Section 1170(d), a statute that adopted in 2018 that expanded DAs’ powers to revisit old cases.

Minsker warned that courts retain ultimate say in whether to remove people from death row. “The real unknown here is the judges,” she said. “I’m concerned that we may end up in a situation where we have disparities based on who the judge is.”

It is usually prosecutors who are the greatest hurdle to ending or curtailing the death penalty. They routinely work to derail legislative proposals, including in Ohio, Oregon, and Wyoming over the last few years. Even DAs who campaigned on their discomfort with capital punishment have gone on to fight efforts to stop executions, such as Kim Ogg in Harris County (Houston). But Ogg had not outright ruled out seeking the death penalty during her 2016 campaign, a far cry from the stronger positions staked by the latest wave of winners.

One of those winners is, like Ogg, in Texas. In Travis County, which has executed eight people since 1976, José Garza ousted the incumbent DA after promising to not seek the death penalty and to review past sentences for legal or factual errors. He has also vowed to stand up to potential pushback from statewide officials. 

“We have an obligation and a responsibility to show people a different way of governing in the state of Texas,” Garza told the Political Report in June

In breaking their profession’s usual mold, prosecutors like Conover, Garza, or Gascón could indeed do more than affect the cases immediately before them. 

They may be able to make it harder for prosecutors’ powerful statewide associations to keep up their lobbying for the death penalty. And they can be influential allies for activists and lawmakers who are seeking to advance legislation or lawsuits against capital punishment. Philadelphia DA Larry Krasner has joined legal efforts to overturn the death penalty in Pennsylvania, for instance, and this month, dozens of reform-minded prosecutors signed on to a letter spearheaded by the organization Fair and Just Prosecution that opposed the resumption of federal executions.

“We’re trying to have this conversation about [prosecutors’ role] in creating effective responses to reduce violence,” said Porter of the 8th Amendment Project, “rather than just getting caught up in fear-based politics.”