Two death penalty ballot propositions with very different outcomes

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Two 2016 California ballot initiatives seek to amend the death penalty, with very different outcomes.

One, Proposition 62 (Repeal of the Death Penalty), proposes to abolish the death penalty and substitute life sentences without possibility of parole for all first-degree murder convictions. Inmates currently on Death Row would have their sentences changed to life without possibility of parole.

The other, Proposition 66 (the Death Penalty Procedures Initiative) seeks to retain the death penalty and amend current procedures.

For some the choice is clear and primarily a moral one — that legally taking the life of another is wrong.

For others, the system is procedurally flawed — that the chance of mistaken convictions is too great based on recent history of conviction reversals, many based on new DNA evidence; that imposition of justice in death penalty cases is arbitrary, based on adequacy of legal representation, race, politics, geographic location of the trial and plea bargaining.

For others, the argument is a constitutional one — that housing murderers on death row for the decades it takes for appeals to be prosecuted and concluded arguably violates the 8th Amendment of cruel and unusual punishment.

And for some, abolishment of the death penalty is logical given the high costs to the state for multi-year legal appeal processes and for maintenance of two death-row prisons with increased security costs and housing requirements for death-row inmates.

According to the nonpartisan California Legislative Analyst’s office, death-penalty trials and challenges can take several “decades” to complete, with the state spending $55 million annually on legal challenges that follow death sentences. Death-penalty inmate housing requirements also come at significant additional cost. According to a study by the California Commission of the Fair Administration of Justice, “The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate. With California’s current death row population of 670, that accounts for $63.3 million annually.”

A 2008 Los Angeles Times study found that the death-penalty system costs taxpayers more than $114 million a year more than comparable life-in-prison costs, and that the enhanced costs of trying a death-penalty case is at least $1.25 million more than a comparable murder case resulting in life imprisonment.

Proponents of 62, including Jeanne Woodford, a former death row warden, Donald Heller, the author of California’s current death-penalty law, and Beth Webb, sister of a victim murdered in 2011, argue that the current system has failed — that  taxpayers have spent more than $5 billion since 1978 to carry out 13 executions at a cost of $384 million per execution (higher cost than the older 2008 LA Times study found); and that the death penalty carries the “unavoidable risk of executing an innocent person.”

Supporters include the California Democratic, Libertarian, and Peace and Freedom parties; California NAACP; California ACLU; California League of Women Voters; Amnesty International USA; California Labor Federation; SEIU California; and the California Federation of Teachers.

A different approach to the death penalty, Prop 66, seeks to “mend,” not end, the death penalty. According to the Legislative Analyst, a “yes” vote changes procedures for legal challenges to death sentences, such as time limits on those challenges and revised rules to increase the number of available attorneys for those challenges. Also, condemned inmates could be housed at any state prison.

Under current law, there are two ways to challenge death sentences — “direct” appeals and “habeas corpus” petitions. Death convictions are automatically appealed to the California Supreme Court where questions of violations of state or federal law by the trial court are heard, such as evidence being improperly admitted or excluded at trial. These direct appeals focus on court proceedings that resulted in the death sentence. Under Prop 66, these direct appeals would continue to be heard by the California Supreme Court.

Habeas corpus petitions (at both California Supreme Court and federal levels) consider different factors, such as the ineffectiveness of the defendant’s attorney and other social factors that, had the jury known, would not have resulted in a death penalty. Under Prop 66, habeas corpus petitions would first be heard in the trial courts by the same judge who handled the original murder trial (unless good cause could be shown for another judge to hear the petition). The trial court would be required to explain in writing its decision on each petition which could then be appealed to a Court of Appeal. Court of Appeal decisions could still be appealed to the California Supreme Court.

Legal limits to trial-appeal processes, both direct and habeas corpus appeals, would be fixed at five years maximum from the date of the death sentence. The five-year requirement would apply to new legal challenges, as well as those currently pending in court.

The measure also requires the Judicial Council and the California Supreme Court to change existing procedures for selecting attorneys to represent condemned first-degree-murder inmates — that trial courts rather than the Supreme Court appoint attorneys for habeas corpus petitions; and that the pool of attorneys, currently limited to qualified death-penalty attorneys, be expanded to include attorneys on a list maintained by the Courts of Appeal for non-death penalty cases. The goal is to speed appointment of attorneys in death cases.

The measure allows death-row inmates to be housed in any state prison and exempts the state’s execution procedures from the administrative procedures.

The LAO estimates state-prison costs could be less if inmates are transferred to regular state prisons rather than San Quentin with its security and single-cell housing requirements. “In addition, to the extent the measure resulted in additional executions that reduced the number of condemned inmates, the state would also experience additional savings,” notes the LAO.

Proponents argue speeding up and limiting the appeal process timeframe to five years saves taxpayer money, ensures the worst of killers receives the strongest sentence, and brings closure to victims’ families.

Supporters include the California Republican Party, California Police Chiefs Association, California Association of Highway Patrolmen, California State Sheriffs’ Association, Riverside Sheriffs’ Association and the California District Attorneys Association.

Opponents note that the process of death-penalty cases, even under current law, is open to manipulation and mistake, and that once the appeal process is concluded, miscarriages of justice are hard to correct; that moving habeas corpus petitions from the Supreme Court to the court in which the case was heard adds in a potential level of bias and mistake inherent in the original trial proceedings; and that there are significant doubts the proposed fast-tracking could work and that it might prove more expensive that existing processes.

They also note that one in 10 California death sentences are overturned and for that reason there is too much risk of miscarriage of justice to speed up the current process.

Recent polls have Prop 62 leading 66, 48 percent to 37 percent. A similar measure to end the death penalty failed in 2012, garnering only 48 percent of the vote, the level at which the current measure (Prop 62) is polling. For either to pass it would need to crest the 50-percent mark. If both passed, the one with the most votes would prevail.

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