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California Has Killed Convicted Felons for Nearly 250 Years. Is the Era of the Death Penalty Done?

California is one of 27 states where the death penalty is legal, but no one has been executed since 2006.

PUBLISHED MAY 24, 2023 3:21 P.M.
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The death chamber inside San Quentin. Gov. Newsom has ordered the facility dismantled.

The death chamber inside San Quentin. Gov. Newsom has ordered the facility dismantled.   California Department of Corrections and Rehabilitation   Public Domain

Violent criminals typically commit their worst crimes in their youth, then mellow out when they hit middle age. But for Clarence Ray Allen, the pattern went the other way. Described as a kind and generous friend and boss, the owner of his own private security firm who never forgot birthdays and showed up at his grandchildren’s soccer games, Allen led a secret, parallel life.

Around 1974, once he reached his early 40s and for reasons that remain a mystery, Allen decided to become a criminal gang boss. Using his security firm to gather information on private homes and businesses in the Central Valley, he led a crew of what a prosecutor described as “easily manipulated petty criminals” on a spree of break-ins throughout the region from 1974 to 1977.

After a burglary of Fran’s Market in Fresno, one of Allen’s accomplices—17-year-old Mary Sue Kitts, who also happened to be the girlfriend of Allen’s son—got pangs of guilt and informed the owners of the market that her boyfriend and his father committed the break-in. Word got back to Allen. He decided that the girl had to die.

He didn’t murder her himself. Instead, according to Lee Furrow, who later pled guilty to the killing, Allen threatened him with death if he refused to kill Kitts. Furrow, according to Allen’s testimony, strangled her, weighted her body with stones and dumped her in the Friant-Kern Canal. Her body was never found. Her disappearance was originally treated as a runaway case by police.

Allen was convicted of ordering Kitts’ murder. He got life in prison. But he still craved revenge. From his Folsom Prison cell, he hired a fellow inmate who was nearing parole, Billy Ray Hamilton, to kill the remaining witnesses for a fee of $25,000.

Hamilton and his girlfriend, Connie Sue Barbo, went to Fran’s Market on Sept. 4, 1980, and methodically took the lives of one of the people on Allen’s list and two teenage store employees who had nothing to do with the case. Hamilton was arrested about a week later for a separate robbery and police found Allen’s list on his person. Allen, while still serving his life sentence, was convicted of ordering the murders and sentenced to death. He was moved to death row at San Quentin State Prison on Dec. 2, 1982.

That is the story behind the last person ever to be executed in the state of California—and quite possibly the end of the story for capital punishment in the state.

The story of the death penalty goes back longer than the state itself and, like so much else about California history, finds its origins in the Gold Rush of the mid-19th century.

California’s Death Row Today

As of January 2023, 671 convicts In California who have been sentenced to die are on death row waiting for their executions. Of those condemned prisoners, 650 were men awaiting death at San Quentin—the 171-year-old state prison north of the Golden Gate Bridge—and 21 were women waiting out their time at Central California Women’s Facility in Madera County.

Was Clarence Ray Allen’s death by lethal injection the end of California’s long dance with the death penalty?

None of these people will die at the hands of the state anytime soon—and very possibly ever. California has executed 13 people since 1978, when by a 3-1 margin voters approved Proposition 7, which affirmed the legality of capital punishment in California and expanded the categories of first-degree murder convictions that could lead to a sentence of death.

(Texas leads the United States with a whopping 574 executions since 1976 when the United States Supreme Court reinstated the death penalty. The high court had briefly ruled it unconstitutional in 1972.)

No one has been executed in California since Jan. 17, 2006, when Allen was put to death by lethal injection more than 23 years after he was sentenced—a period of time longer than the entire lives of three of his four known victims. Allen also became the oldest person ever executed by the state of California at age 76. (The oldest convict to be legally executed in the United States was serial mail-bomber Walter Moody, who was put to death in 2018 by the state of Alabama at 83 years of age.)

Is the Death Penalty Dead?

Was Clarence Ray Allen’s death by lethal injection the end of California’s long dance with the death penalty? The state remains one of 27 that has a death penalty law on the books. The federal government and the U.S. military also retain capital punishment for certain crimes. The death penalty has been abolished in 23 states, starting with Michigan in 1847. Virginia banned capital punishment in 2021, becoming the first Southern state to do so. The District of Columbia has also done away with the death penalty.

Until July 14, 2020, no federal convict had been executed by the U.S. government in 17 years. Starting on that date, the Trump administration in its final six months put 13 inmates to death—after only 10 executions over the previous 70 years.

On July 1, 2021, the Biden administration placed a moratorium on federal executions for at least as long as it would take for the Justice Department to review its capital punishment policies.

In theory, the next governor could sign a new executive order restarting executions.

Though California has not abolished capital punishment—meaning that prosecutors can still seek the death penalty for defendants charged with crimes that merit it—on March 13, 2019, Gov. Gavin Newsom signed an executive order stopping any executions in the state. Though the order did not commute the death sentence of any of the then-737 inmates on death row, nor cause any to be released from prison, Newsom also ordered the execution chamber at San Quentin shut down and withdrew the state’s lethal injection protocol, the method used to carry out executions.

In theory, the next governor could sign a new executive order restarting executions, but Newson has taken steps to make that extremely difficult. In March of 2023 he announced that the notoriously grim and violent San Quentin facility would be phased out as a maximum security prison and renamed San Quentin Rehabilitation Center, a facility “focused on improving public safety through rehabilitation and education,” according to an announcement from the governor’s office.

The Origins of California’s Death Penalty

Dating back to 1778, when the first known execution took place 72 years before California became a state, death was an acceptable form of punishment for certain severe crimes. From then until 1972, when the California Supreme Court ruled capital punishment unconstitutional—the first court in the U.S. to do so—in its People v. Anderson decision, there were 709 executions recorded.

The year before California was admitted to the Union, delegates gathered at Colton Hall in Monterey to come up with a Constitution for the soon-to-be state. One of the most contentious topics for debate at the 1849 Constitutional Convention was the death penalty.

Starting in 1848 as Gold Rush fever spread, thousands of people flooded California hoping to strike it rich. In 1846, the quiet, little bayside town of San Francisco, then called Yerba Buena, had a population of 200. By 1850 the city was home to 25,000 human beings. The few laws on the books for a town of 200 were useless for the new, exploding populace, and the nascent city had no way to enforce the law on that many people anyway.

Citizens formed their own committees to apprehend criminals, give them trials and dole out punishments. The makeshift vigilante groups chose judges and juries from among their own ranks and administered justice, often roughly and sometimes brutally. Banishment was a common form of punishment, as was whipping. For murder, death was the sentence.

Until 1890, responsibility for executing condemned convicts belonged to county sheriffs.

A similar system—if it can be called a system—sprang up in the newly formed mining camps and towns throughout the region. At the 1849 convention, delegates debated the morality of the death penalty, some arguing that the purpose of punishment was to reform wrongdoers not “exterminate” them. That debate was won not by the moralists, but by the cost-conscious faction of delegates who held that “the construction of penitentiaries would be enormously burdensome.”

In other words, it made fiscal sense not to imprison criminals in hopes of “reforming” them, but simply to kill them. (Or whip or banish them.)

The state constitution put in place a judicial system, however, that took responsibility for criminal justice out of the hands of local “committees” and into the newly formed municipal, county and state courts. The new legislature adopted the Criminal Practices Act of 1851, which first made execution a legal form of punishment in the state. From then until 1890, responsibility for executing condemned convicts belonged to county sheriffs.

The county-by-county system of executing people led to a kind of chaos in the judicial killing apparatus. There were 230 executions carried out over a four-decade span, almost all by hanging. In most cases, only one person was hanged at a time, but on a few occasions as many as four or even five were hanged at once. Some executions—including the first two of San Francisco’s 18—were public, attracting raucous, enthusiastic crowds of as many as 10,000.

Eventually, to avoid such tawdry spectacles, hangings were moved to gallows set up inside the walls of county jails. Even then, invitations to attend hangings were coveted by the public. Sheriffs’ offices were flooded with ticket requests.

CA Legislature Ends County Capital Punishment

In 1891 the state legislature put an end to local executions, amending the state law permitting capital punishment to require that all executions be carried out inside the walls of a state prison. Sheriffs were relieved of their death-dealing duties, replaced by prison wardens.

‘Many a man who has taken life in California has bought his neck out of the halter.’

On March 3, 1893, a Native American from San Diego named José Gabriel—referred to crudely in local newspapers as “Indian Joe”—became the first person ever executed under the auspices of the state of California. Gabriel was convicted in the double murder of an elderly couple who employed him on their farm. He denied the charge but nonetheless was convicted and, about four months later, hanged in San Quentin.

Even then, despite the public and press appetite for executions, there was an awareness, at least in some circles of society, of the economic discrimination inherent in capital punishment.

“Many a man who has taken life in California has bought his neck out of the halter,” wrote the editorial board of the San Diego Union in 1893. “It is a discreditable state of things that only poor men and friendless pay the penalty of their crimes.”

Inequality,  Injustice and the Death Penalty

Nearly 126 years after that editorial was published, when Newsom announced his executive order banning executions in California, one of his primary reasons was that the “death penalty system has been, by all measures, a failure. It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation.”

Research results, for decades, have shown that he is right.

According to data published by Death Penalty Focus, 36 percent of California death row inmates as of 2022 were African-American, six times the percentage of the state’s population. A 2005 study published by Santa Clara Law Review found that 80 percent of people executed in California were convicted of killing white victims, though only 27.6 percent of all murder victims were white.

African-Americans are six times more likely to be murdered than whites, the study found, but defendants convicted of killing whites were three times more likely to receive a death sentence than those who killed non-whites and four times more likely than the killers of Latinx people.

A 2022 report by the NAACP Legal Defense Fund tabulated all U.S. executions since 1976 and found that, though they comprise 13.6 percent of the American population, Black people have been executed at a rate almost three times as high: 34 percent of all executed convicts.

The report also found that in that same 46-year period, 21 white defendants were put to death for the murder of a Black person—but 299 Black defendants were executed for killing whites. In 2018, according to FBI data, 16 percent of white victims were killed by Black offenders compared to 8 percent of Black victims killed by whites.

‘Death penalty cases always come with tragic stories. If Newsom stays in politics, he’s going to have to defend the decisions he makes.’

Newsom also singled out mentally ill people as excessively targeted by the death penalty. While no definitive data exist on the percentage of death row inmates who are mentally ill, the Death Penalty Information Center has compiled a list of 23 convicts since 1999 who have been executed despite suffering from known mental illness.

They include one case in California—Manuel Pina “Manny” Babbitt, a former U.S. Marine and decorated Vietnam combat veteran who suffered from post-traumatic stress disorder due to his experiences in the war. He survived the 77-day siege of a Marine outpost at Khe Sanh in 1968, in which 274 Americans were killed.

Babbitt was convicted of the brutal murder and attempted rape of a 78-year-old Sacramento grandmother in 1980. Babbitt never denied that he committed the horrifying crime, but said that he had no recollection of doing so because he was in the midst of a terrifying PTSD Vietnam flashback. Babbitt was Black. His victim was white.

Gov. Gray Davis, himself a Vietnam vet, denied Babbitt’s plea for clemency on April 30, 1999—a bid supported by, among many others, the brother of Unabomber Ted Kaczynski, who killed three people yet managed to escape the death penalty (and who is white).

On May 5, 1999, Manny Babbitt was executed by lethal injection at San Quentin, the seventh of the 13 people put to death in California since 1978.

In the 1986 case Ford v. Wainwright, the U.S. Supreme Court ruled that executing an “insane” defendant is unconstitutional. But the court defined “insane” to mean that the defendant was so far gone mentally that he didn’t know or understand that he was going to be executed. The court has not exempted the mentally ill from receiving the death penalty.

The Politics of Death in California

The pace of executions in California has been slow since 1978. Of 178 condemned inmates who have died since then, 163 died of causes other than being executed. In addition to the 13 executed in California, two were put to death in other states. Otherwise, the leading killer of death row inmates is “natural causes,” at 108, followed by suicide, which has killed 30 death row inmates.

But the politics of capital punishment remain volatile. Republicans have slammed Newsom as “out of touch” and accused him of “insulting” victims and their families with his decision to dismantle the San Quentin death chamber, even though the move has no real effect on whether the state executes people or not.

“Death penalty cases always come with tragic stories,” former federal prosecutor Laurie Levenson told The New York Times. “If Newsom stays in politics, he’s going to have to defend the decisions he makes.”

He wouldn’t be the first. In 1977, Gov. Jerry Brown appointed a liberal lawyer named Rose Bird to be Chief Justice of California’s Supreme Court. She was the first woman to serve on the state’s high court and of course its first female chief justice. Over the next nine years, the court heard 61 death penalty appeal cases. Bird voted to overturn them all, never approving a single execution.

In 1986, voters—who must cast ballots to retain or reject Supreme Court justices, though they do not directly elect them—ousted Bird, making her the first and still only Chief Justice to be rejected at the ballot box. Her opposition to the death penalty was the main political weapon used against her in a multimillion-dollar campaign led by Republican Gov. George Deukmejian, and she remains “a kind of reflexive shorthand in California for ‘soft-on-crime liberal,’” wrote Patrick Brown of Cal State Fullerton in a 2007 paper.

California voters have expressed their support for capital punishment repeatedly in other elections as well. Four ballot measures have come before voters offering them the opportunity to affirm or repudiate the death penalty and each time they’ve given it a big thumbs-up.

In 1972, just months after the state Supreme Court’s groundbreaking People v. Anderson decision ruling the death penalty unconstitutional, voters overwhelmingly (68 percent to 32) approved Proposition 17, also called the “Death Penalty is Constitutional Initiative.” Then six years later, voters approved another initiative—Prop 7, by a 71-29 margin this time—that expanded the categories of first-degree murder that would come with a death sentence.

Voters got another chance to throw out the state’s death penalty in 2012 with Prop 34, which would have abolished the death penalty completely in California. The margin was narrower this time, 52-48, but once again voters chose to keep capital punishment in place.

They essentially repeated this procedure in 2016, voting down Prop 62, which would have repealed the death penalty, by a 53-47 margin. In the same 2016 election, voters narrowly (51-49) approved Prop 66 which, far from ending the death penalty, actually speeds up the process between conviction and actual execution.

Death penalty opponents quickly sued, arguing that the limits placed by  Prop 66 on death penalty appeals violated defendants’ rights and unconstitutionally limited the state Supreme Court’s role in the process. But that same Supreme Court upheld Prop 66, letting the new law remain on the books.

The Future of the Fight to End California’s Death Penalty

A few months after Clarence Ray Allen was executed, a federal district court ruled that lethal injection, at least under California’s method of administering it, caused an “undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment.” That, of course, is the amendment to the U.S constitution that bans “cruel and unusual punishments.”

Juries have become increasingly reluctant to impose death sentences, issuing only 16 statewide from 2018 through 2022.

The court did not ban executions outright, however, so the state spent four years reviewing and revising its lethal injection protocol until, in 2010, it felt ready to execute Albert Greenwood Brown Jr. The death row convict had been convicted 30 years earlier of the particularly heinous rape-murder of a teenage girl he had abducted as she walked to school in Riverside. But the state Supreme Court halted the execution anyway, and federal Judge Jeremy Fogel, who authored the 2006 ruling, also granted a stay. Fogel said that it was “virtually impossible” to determine whether the new method of lethal injection was any better than the old one.

Death penalty opponents, with former El Dorado County Supervisor Ron Briggs among the most prominent, continued to push for total abolition. Briggs sponsored the narrowly defeated 2016 ballot measure that would have ended capital punishment in California once and for all. Juries have become increasingly reluctant to impose death sentences, issuing only 16 statewide from 2018 through 2022, after 90 were handed down over the previous six years.

And with Newsom’s death penalty moratorium in 2019, it now appears that death penalty opponents are willing to take a wait-and-see approach on the future of executions in the state—an attitude that angers Briggs, who was himself a staunch supporter of the death penalty until 2008, when a reawakening of his Catholic religious commitment led him to an epiphany. With the moratorium in place, he now wants his fellow death penalty opponents to fight even harder to end the practice.

“Their pacifist ways don’t allow them to take hold of this issue during the Newsom years and kill it,” Briggs told the San Francisco Chronicle. “Time’s fragile, but we’ve got some right now. We’re wasting it.”

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