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The Death Penalty Is Almost Gone — But Some Politicians Aren’t Ready to Say Goodbye Quite Yet

Elected officials in Florida are facing off over the issue of capital punishment

When Florida state attorney Aramis Ayala said she wouldn't seek the death penalty for murder convictions while in office a couple months after she was sworn in this past January, one local official wrote on Facebook that she should be "tarred and feathered if not hung from a tree." She is the first black official to serve as a state's attorney in Florida.

The case over which Ayala, a Democrat serving in Orange and Osceola counties, defined her stance involved Markeith Loyd, who is accused of killing his pregnant ex-girlfriend and a police officer. "I have determined," Ayala said last month, "that [seeking the death penalty] is not in the best interests of the community or the best interests of justice."

Governor Rick Scott, a Republican, defines justice differently. Ayala’s refusal to send Loyd to death row, he said, "sends an unacceptable message that she is not interested in considering every available option in the fight for justice." His office reassigned the Loyd case — as well as 22 other cases — to another prosecutor willing to use capital punishment. Ayala is now suing the governor, but Scott is continuing to review cases, saying he wants to "make sure that we always think about the victim." (The mother of the woman whom Loyd allegedly killed has said she supports Ayala's decision.) The debate will eventually be decided by the courts.

Prosecutors have no obligation to seek death sentences in capital cases. The options at their discretion in every case give them substantial power to change how the criminal justice system works. A combination of differing state laws and prosecutorial discretion meant that only 33 counties in the entire country imposed a death sentence in 2015, per a report by the Fair Punishment Project — most of which occurred in "outlier counties" with prosecutors who say things like “we need to kill more people."

The death penalty has been fighting its own expiration for years. The practice is currently legal in only 31 states, several of which have seen no executions in at least 10 years. But the death penalty isn't extinct yet. Later this month, Arkansas had planned to end a 12-year death-row drought by killing six more people, outracing the expiration date on the state's supply of lethal injection drugs — at least until a federal court paused the executions for now. The people most targeted by capital punishment in these last remaining outposts of the death penalty are mostly minorities, who often face juries pruned of anyone who looks like them. Progress in America follows a predictable rubric, making sure to delay sharing its spoils with the poorest and least privileged until the last possible moment.

"We're seeing that, at least for black votes, we have a unique understanding of the power of prosecutors," Arisha Hatch, managing director of campaigns for Color of Change, told MTV News. "Some of us just needed to know that we actually elected these folks." In recent years, Color of Change has begun to recruit prosecutor candidates to run in places like Chicago, where Laquan McDonald was killed; Cleveland, where Tamir Rice was killed; and many of those outlier counties where minorities were being sentenced to death at a higher rate than whites.

Although races for elected prosecutors are typically uncompetitive and incumbents nearly always win, November 8, 2016, still managed to be a good day, in some small ways, for criminal-justice reformers. New prosecutors were sworn into Hillsborough County, Florida; Jefferson County, Alabama; and Harris County, Texas — and several other places that were sending more people to death row than nearly anywhere else in the country.

Before Ayala and her fellow new Florida prosecutors were sworn in, a change in capital punishment policy was already coming to the state. Last year, the Florida Supreme Court found that the state's death penalty procedures — which allowed a person to be sentenced to death even if a jury wasn't unanimous — were unconstitutional. This year, Scott signed legislation that made a unanimous jury a requirement for capital punishment, and dozens of cases decided by a less-than-unanimous jury are now being reconsidered. "Florida law is now in conformance with other states that have the death penalty," says Stephen Harper, the supervising attorney at the death penalty clinic at Florida International University's College of Law, "which means prosecutors will seek death in fewer cases and defendants will receive death sentences in fewer cases. That is another indicator that even in a Southern, active death penalty state, it is on the decline."

Being a reform-minded prosecutor has always been hard. "There is no roadmap for progressive district attorneys," Stanford Law professor David Alan Sklansky wrote in the "Progressive Prosecutor's Handbook" this year. And, as Sklansky told MTV News, organizational culture — meaning existing hierarchies and the baked-in status quo — "is one of the hardest things to change, if not the hardest, in a prosecutor's office. It's why having a reform-minded prosecutor doesn't necessarily translate into significantly better policies." You also can't plan for how the politicians higher up the ladder in your state will feel about reform. Just because you're in the same state doesn't mean you have the same constituents.

In 1996, not too long after Republican governor George Pataki reinstated the death penalty in New York, a police officer was killed in the Bronx. District Attorney Robert Johnson, the first black official ever elected to this position in the state, wanted the full 120 days accorded him by law to decide whether to seek the death penalty. Pataki, impatient, instead just reassigned the case to someone ready to pursue a death sentence.

In 2003, Kamala Harris, the first black woman elected to a district attorney position in California, said she was against capital punishment while campaigning to be San Francisco's next prosecutor. After a police officer was killed in April 2004, she still refused to seek a death sentence. Many people disagreed with her, including the woman she would later replace in the Senate, Barbara Boxer. "I have given the issue of the death penalty a lot of thought for a long time," Harris told the New York Times then. "I could be in Kansas and I would have the same position."

Progressive prosecutors don't always face quite so much scorn. Beth McCann, Denver's new district attorney, said in January that she didn't "think that the state should be in the business of killing people." The stance didn't seem to cause much of a stir in Colorado, which has only executed one person since the United States brought back the death penalty in 1977.

The fact that the reform-minded prosecutors who received the most pushback for fighting the death penalty were often also the first black officials to hold their position underlines how few prosecutors in this country are people of color. Fusion released a report in 2016 noting that "in the 276 counties in the U.S. where people of color represent the majority of the population, only 42 percent, or less than half, of the prosecutors in these counties are prosecutors of color." The death penalty is a voting-rights issue, too: Fairer access to the ballot can help ensure that more progressive prosecutors get elected and fewer death sentences happen.

While the people at Color of Change wait for upcoming prosecutor races in Philadelphia and in outlier counties like Orange and San Bernardino in California — which voted against repealing the death penalty last year — they are watching the officials they just helped elect to see if they follow through on their promises. "And when they do the right thing," Hatch says, "we want to have their back."

Hatch says Ayala's situation in Florida is "an egregious example of how state actors with power can intervene to overstep the will of black voters." A petition asking Scott to stand down was signed by more than 150,000 people, then delivered to Tallahassee by volunteers from Orlando and Miami who woke up before the sun to get on a bus. Hundreds walked into the statehouse on March 29 to sign the governor's welcome book, and more are expected to attend a forum with the prosecutor soon.

"It's definitely frustrating," Hatch says of the roadblocks to progress, even after the election of those who promise it — especially considering that criminal-justice advocates can no longer consider the federal Justice Department an ally. "As an organization that really cares about winning meaningful, long-lasting change, we have an understanding that there is no instant gratification. There may be these moments where we're able to build momentum or real systemic change, but my goal as an organizer is to see more equality and racial justice in my lifetime.

"But," she adds, "I don't expect that to happen tomorrow."