Waiting Decades to Die

Nearly six years after the worst mass murder in the history of Orange County, Calif., the man who admitted to killing eight people at a hair salon will not be joining the largest death row in the nation.

In a remarkable ruling, a Superior Court judge did what voters in California so far have been unable to do — remove execution, the so-called “ultimate” penalty, as an option.

Judge Thomas M. Goethals ruled Aug. 18 that the Orange County District Attorney’s Office and the Orange County Sheriff’s Office chronically and intentionally had flouted court orders to cover up an illegal and covert system of using informants to gather information on defendants awaiting trial.

Now, Scott Dekraai — who in 2014 pled guilty to the murders of eight people and the attempted murder of another at the Salon Meritage in Seal Beach, Calif., on Oct.12, 2011 — faces life in prison.

Ultimately Dekraai will die — but not by lethal injection.

Not long after this horrendous crime occurred, Orange County District Attorney Tony Rackauckas announced he would seek the death penalty because it was “the only way our society can get anything approaching justice for the victims, their families, the town of Seal Beach, and the larger community.”

At that time, California had the largest death row in the nation with 720 inmates, and no executions had been carried out since 2006.

In an article for Sojourners in November 2011, I offered that if justice meant putting Dekraai on a gurney and executing him, the victims, their families, and anyone else hoping for that outcome should expect to wait for at least 20 years, maybe much longer.

Since then, California’s death row population has grown to nearly 750 and the average time from conviction is more than two decades. More than 80 of those inmates on death row have been there for more than 30 years.

That lengthy timetable could change sooner than later. Just a few days after Judge Goethals barred the death penalty for Dekraai, the California Supreme Court upheld most of the provisions of Proposition 66, a measure sponsored by prosecutors designed to execute defendants faster. However, a key provision — that all death penalty appeals have to be decided in five years — was rejected.

That ruling made sense only in the bizarre world of the death penalty, where sometimes defendants sentenced to death row don’t even get an attorney assigned to their case for five years, let alone have their cases briefed, argued, and decided.

While there still have been no executions in California since 2006 — largely due to a court battle over lethal injection drug protocols — that could change if the state’s proposed single-drug method for lethal injection passes legal muster. More than 15 of the state’s death row inmates have exhausted all of their appeals, so if it does, prosecutors undoubtedly will be asking judges to set immediate execution dates.

In the years since Dekraai’s rampage, California voters have failed twice to get rid of the death penalty. In 2011, voters defeated a ballot initiative that would have abolished the death penalty completely. Another attempt in 2016 to replace the death penalty with life without parole also failed.

In the fall of 2015, U.S. Supreme Court Justice Antonin Scalia created a brief ripple of anxiety among death penalty supporters when he said he “wouldn’t be surprised” if the Court ruled the death penalty unconstitutional.

It hasn’t happened yet. And there’s no way to tell if Scalia, who died less than six months after he made those remarks, was particularly prescient.

That said, the Death Penalty Information Center, which tracks all manner of facts about the death penalty, reports that in 2016 only 31 people were sentenced to death, continuing a downward trend from a high of 295 death sentences in 1998. Meanwhile, the number of states without the death penalty has risen from 16 to 19 and eight other states are essentially abolition states since they haven’t executed anyone in a decade.

But as long as the death penalty remains on the books, these cases will continue to play out in longer and longer forms. And sometimes, a judge will do what Judge Goethals did — take death off the table.

While nearly half of Americans still support the death penalty, support for capital punishment is at a 40-year low and continues to fall, according to the Pew Research Center. In a survey conducted a year ago, Pew researchers found that 42 percent of American said they were against the death penalty, while 49 percent said they favored it — a figure that fell by 7 percent from 2015 to 2016.

White evangelical Protestants (69 percent) remain more supportive of the death penalty than any other group, according to the Pew survey. But there is movement among evangelicals on capital punishment, too, as evidenced by institutional changes (albeit incremental) to the more vocal evangelical voices in ecumenical death penalty abolitionist movements, such as Death Penalty Action.

In 2015, the National Association of Evangelicals backed away from its historically strong support for the death penalty, adjusting its statement to say, “Evangelical Christians differ in their beliefs about capital punishment, often citing strong biblical and theological reasons either for the just character of the death penalty in extreme cases or for the sacredness of all life, including the lives of those who perpetrate serious crimes and yet have the potential for repentance and reformation. We affirm the conscientious commitment of both streams of Christian ethical thought."

In Dekraai’s case, the decision was not a philosophical ruling that said executing someone is morally or legally wrong. Rather, it was the result of egregious prosecutorial misconduct that compromised Dekraai’s legal right to a fair and just sentencing process. It was the result of a judge finding that “an allegiance to the rule of law” is paramount, particularly when the potential result is an execution.

So what of the victims and their families and everyone else — those folks that District Attorney Rakauckas pledged so loudly and vehemently to achieve “justice” with Dekraai’s execution?

After six long years, some — but not all — of the victims’ family members have had enough, a fact that Judge Goethals addressed in his ruling. His words were particularly eloquent:

“In formulating its ruling, the court also hears the words of the victims’ families ringing in its ears. I want to take a moment to speak to you fine people directly. I meant it when I thanked many of you for coming to court to share with me your thoughts about this case, which has so terribly impacted each of your lives. I meant it when I promised to remember what you said to me.”

The judge noted that they were divided in their opinions about Dekraai’s fate, which was not unexpected.

“You live daily with the almost unbearable pain that this defendant has thrust upon you and your families,” Goethals said. “As innocent victims of these horrendous crimes, you are angry. Your hearts ache as a result of your unspeakable losses. You miss those who were so suddenly and senselessly taken from you by this defendant’s cruel brutality.”

“But as good people often do in the face of such tragedy, while protecting and treasuring the memories of your loved ones, you are at the same time moving forward with your lives as best you can through your grief,” Goethals said.

In the end, the judge said he could not abdicate his responsibility to fairly apply the law to comply with the wishes of those who still seek Dekraai’s execution.

Still, his ruling, Goethals said, while sparing Dekraai from the executioner, does “ensure that this defendant dies a forgotten man in some obscure maximum security prison.”