In November, Californians voted in favor of Proposition 66, which was billed as a “fix it, don’t end it” reform of the death penalty. Essentially, Prop 66 “would require the judge who originally heard a case to hear initial petitions challenging a death penalty conviction, instead of the petitions going to California Supreme Court. It also would limit the appeals process to within five years of a death sentence,” per the Los Angeles Times.
The question now becomes one of implementation: What politician or political action group would be motivated to actually support state-sponsored executions when state after state is ending the death penalty?
That’s where Kent Scheidegger comes in. Scheidegger, the most famous man most laypeople have never heard of, has been fighting to execute people for 30 years. He is the legal director of the Criminal Justice Legal Foundation, a right-wing think tank opposing criminal justice reform. He’s also the author not just of California’s Prop 66 legislation, but also of most anti-criminal justice reform rhetoric heard at the state and national level.
The United States remains quite divided when it comes to the death penalty. Most recently, the rush by Arkansas lawmakers to execute eight people in 11 days has served as a reminder of capital punishment’s perseverance within the criminal justice system despite reform advocates’ efforts to highlight the role mental illness, extreme childhood trauma, and poor lawyering can play in crime and sentencing. Yet, on the other hand, the death penalty has seen a steady decline in support around the country; a 2016 Gallup poll recorded the lowest support for the death penalty since 1972. Further, 2016 had the fewest executions (20) since the American death penalty was reinstated in 1978. The death penalty, it seems, remains as polarizing an issue as ever.
The role of the Criminal Justice Legal Foundation, then, is to try and swing the pendulum back toward pro-punishment. Founded in 1982, the CJLF bills itself on its website as “dispassionate, low-profile” in its quest to normalize executions. It’s also fairly successful, with a half-million-dollar budget funded entirely by private donations. The group regularly intervenes in pretty much every criminal justice case in the country by filing amicus (friend of the court) briefs, and weighing in on legal issues. Scheidegger, who had previously worked in California state government before becoming CJLF’s legal director, has become the talking head known for his lively, almost-bubbly defense of the death penalty.
Scheidegger has written nearly 200 Supreme Court amicus briefs supporting harsher sentences and the death penalty. His briefs provide ammunition for the more conservative justices who are looking for ways to justify their decisions. He regularly testifies before the California legislature against criminal justice reform issues. He is also the mouthpiece for all pro-capital punishment; he seems to always have a quotable quip handy for publication. Last month, for example, he was quoted in the Timesarguing that the “anti-death penalty crowd” has created the drug shortages by making it hard for states to get midazolam.
He also penned a recent blog post claiming the expiration date for Arkansas’ execution drug was just a suggestion, not something to be taken seriously. And, despite the nearly 150 people exonerated from death rows around the country, he maintains in amicus briefs that “nearly all death-row inmates are clearly guilty.” He’s also publicly called brain research showing the differences in decision-making between juveniles and adults — the very findings that have informed court decisions across the country to eliminate life without parole and the death penalty for young people — “a bunch of hooey.”
But nowhere has Scheidegger been more vehement than in his defense of capital punishment. Consider this, from an amicus brief CJLF submitted to the Supreme Court in the 2015 case challenging Oklahoma’s lethal injection protocol, Glossip v. Gross: “The Eighth Amendment does not allow torturous methods of execution but also does not require completely painless ones.”
In the case of Bobby Moore, a man who was sentenced to death under Texas’ statute evaluating intellectual disability, Scheidegger — lacking any scientific evidence — wrote an amicus brief calling the American Psychiatric Association’s definition of intellectual disability “social and policy documents” and “not science.” (In the same brief, he also called developmental disabilities a “social construct.”)
Among Scheidegger’s more unusual positions: his opposition to the evidence-based conclusion that race plays a disproportionate role in death sentences. “The difference between the make-up of death row and the make-up of the general population is attributable to the difference in offending rates, not bias in the system,” he told a local Florida radio station, referring to Florida’s historical racial imbalance on death row. When the Supreme Court ruled in favor of the defendant in the case of Duane Buck, a death penalty case that relied on racial bias, Scheidegger took to his blog to protest the decision.
Over the past five years, Scheidegger has used his gift with the pen to sue the state of California to reinstate executions. In a 2012 case, Scheidegger filed his own lawsuit in California state court on behalf of a brother of someone killed, arguing that the victim had a right to see the defendant executed. (He lost.)
Within California, his rhetoric is incredibly influential in the “death belt” — that’s Kern, Orange, and San Bernardino counties — places where the death sentences are regularly assigned more than in any other southern state. While politicians who are less likely to be as un-PC as Scheidegger, who shows no qualms about using the word “retarded” to describe intellectually disabled people on death row, his influence clearly provides them support for their ability to make California the current death sentence leader in the U.S. (Scheidegger predicts that if California resumes executions, there will be “one or two a month.”)
Scheidegger’s outsized influence on Supreme Court opinions and conservative doctrine in favor of the death penalty is at odds with so much movement in the criminal justice system. (It will not, however, be a surprise that Scheidegger is a long-time and loyal member of the Federalist Society, along with all of the recent conservative Supreme Court justices.) Criminal justice reform has become increasingly bipartisan; even the Koch brothers support it. States from Mississippi to Texas to Louisiana to Oklahoma have come to the decision that “tough on crime” doesn’t work and are considering an array of legislation that would eliminate the death penalty and otherwise decrease harsh punishments, like solitary confinement or life without parole.
It’s not that Scheidegger represents the right; the CJLF has more in common with Donald Trump and Jeff Sessions, holdovers from an era where innocence doesn’t matter and people should be put in jail for longer. But this fight isn’t one that Americans want to have any more. Despite the election of Trump, local elections ousted law-and-order prosecutors in favor of reformers who promised to be “smart on crime.”
As a result, even among his own political peers, Scheidegger and the CJLF feel more and more woefully behind the times, valiantly fighting a battle that the people have left behind. At the same time, if history shows anything, underestimating the power of fear to motivate policy might be a mistake.