This Article examines the current state of the death penalty in California and nationally through the lens of mitigation—the empathy-evoking evidence that has been a constitutional requirement to ensure individualized sentencing in the era of the modern American death penalty. It situates the discussion in the context of the extraordinary events of 2020: the Covid-19 pandemic, the heightened awareness of racial inequities reflected in the Black Lives Matter movement, and the federal execution spree in the final six months of the Trump administration. The Article began as the keynote address at California’s annual Capital Case Defense Seminar on February 13, 2021. In the spring of 2020, when the author was invited to give this keynote, no one knew what an unprecedented year was unfolding. No one anticipated that the keynote and the seminar would be virtual. While the keynote kept its focus on the author’s area of expertise (mitigation evidence in death penalty cases), it expanded to reflect on the pandemic, the emergence of Black Lives Matter, and the federal execution spree. The months of research that went into the keynote made it relatively straightforward for the author to transform a speech into a carefully documented Article. Nonetheless, the author has kept some of the colloquial tone of the original address in order to capture the unique framework for understanding the death penalty in California and nationally in 2021. For more than four decades, capital defense training in California and across the country has stressed the importance of developing humanizing evidence based on the diverse frailties of humankind, evidence that at once provides to the accused the effective representation guaranteed by the Sixth Amendment and to jurors the evidence that they need to make the reasoned moral decision they are asked to render in capital cases and without which there cannot be reliable results. Capital punishment had its ascendency in the 1990s when executions resumed in California. Annual death sentences and executions reached their highest numbers both in California and across the country. However, the trends reversed around the turn of the century. The requirement of mitigating evidence to ensure fairness and individualized sentencing was a built-in, self-destructive part of the modern American death penalty. The thirteen federal executions in the final six months of the Trump administration and in the midst of the pandemic were arbitrary and lawless, as prisoners were executed in spite of intellectual disability, mental illness, meritorious legal claims, and powerful evidence of remorse and rehabilitation. Some had spotless or near spotless records during their years on death row. In recent years, we have also seen many other examples of prisoners who were sentenced to death, or to die in prison without hope of parole, who have led exemplary lives after securing their release. The Supreme Court of the United States enabled the federal execution spree, overturning stays issued by numerous federal courts below and suggesting that, at least for now, we have lost the legal battle over the death penalty. However, the death penalty has become a damaged brand, increasingly abandoned by state after state, prosecutors, juries, and the American public. I submit that we are winning the narrative battle.

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