Propositions 62 & 66

Proposition 62 & 66 Repeal or Restructure Of Death Penalty[1]

We analyze proposition 62 and 66 together because whichever receives the most votes over a majority will become the law and because proposition 66 was put on the ballot as a response to proposition 62’s effort to identify the inefficiencies in the existing death penalty.[2] At a high level, Proposition 62 abolishes the death penalty and replaces it with a penalty of life imprisonment without the possibility of parole (LWOP), while Proposition 66 acknowledges the high costs of our death penalty but seeks to address some of them by removing procedural safeguards intended to protect the innocent and thereby speed-up the process of a death sentence.[3] These initiatives have a direct impact on our state’s treatment of those accused of the crimes our citizenry has identified as the most heinous and thus deserving of the most extreme and permanent penalty – State imposed death.

The Dollars Associated With Our Death Penalty System

Since California reinstated a death penalty in 1978 for murder committed with “special circumstances” the state has executed 13 inmates  (some authorities inexplicably claim 14 or 15[4] deaths, we’ll stick with the number provided by the Department of Corrections). The State currently spends at least $55,000,000.00 each year just on the legal process associated with the death penalty.[5]  An exceedingly well-researched 2011 study penned by a law professor and a senior federal judge found that the state has actually spent 4 billion dollars on its death penalty system, (a number much higher than many other estimates that do not account for all costs) since it was reinstated working out to approximately $300,000,000.00 per completed death sentence and estimates that the total costs of the system will exceed $9 billion by 2020 (meaning costs are on a sharp upward trajectory – $4 billion for the first 30 years, $5 billion for the next 10).  (Id.). An updated version of the same study published in the Loyola Law Review in 2012 noted that as of that date “no county, state, or federal agency has come forward to challenge the accuracy of our cost estimates.”[6]

Since 1978, the death penalty has been imposed on 930 condemned individuals.[7] Of those, the Secretary of State’s Legislative Analyst reports that 15 have been put to death[8] while 64 have had their death sentences overturned by courts as a result of errors and another 103 have died prior to their death sentence being carried out.[9] 748 death row prisoners remain in prison awaiting execution in various stages of appellate review of their sentences; those prisoners require special handling by the Department of Corrections because of the unique sentence they face.[10] If these trends continue, we can expect that nearly 7 times as many death row inmates will die while incarcerated on death row as will actually have their death sentences carried out.  Additionally, nearly 6 times as many death row inmates will have their death sentences reduced as a result of the discovery of mistakes in their cases as will actually be put to death.  All death sentences have been suspended since 2006 when a Federal Court ruled that California’s manner of executing inmates was unconstitutional; since then the State has been unable to put forward a reliable system that meets constitutional requirements.[11] Yet, we continue to pay exorbitant amounts of money to maintain a death penalty option.

 Is It Broken? Can We Fix It?

To start, we note that smart minds have been trying to address known deficiencies in the death penalty system for over 35 years with very little success.  In 2004 the State Senate enacted legislation that assembled the  California Commission on the Fair Administration of Justice (hereafter the “Commission”), an official commission comprised of judges, police chiefs, district attorneys, the attorney general,  and professionals appointed to investigate the death penalty, including claims of systemic problems.   In 2008 the Commission published the results of its extensive study.  As part of the report, then California Supreme Court Chief Justice Ronald George described the current death penalty system as “dysfunctional.”  The Commission’s detailed investigation led to a similar conclusion.  The Commission noted exceptionally high error rates in death cases, including successful claims of “ineffective assistance of counsel,”– 70% in 54 Federal Habeas Corpus cases decided by Courts.  The commission was not reviewing the possibility of eliminating the death penalty, only reforming it.  Nevertheless, the Commission’s report quotes the California Supreme Court’s Chief Justice as follows: “if nothing is done, the backlogs in post-conviction proceedings will continue to grow ‘until the system falls of its own weight.’”  In short, the Commission found that the current safeguards were insufficient, that the process was severely flawed and that extensive reforms were needed.  The Commission noted that according to its calculations the current death penalty system costs about $137 million annually and that the implementation of the various changes that the Commission recommended would raise that cost to approximately $237 million annually.  (Id.).  Extrapolating from those numbers, if the reforms were implemented, it would increase the costs of execution from $300 million to approximately $519 million per execution.  In other words, the most definitive study on the issue concludes that substantially more needs to be spent on our current system.  So, from our perspective, proponents of keeping the death penalty system and “simply” reducing costs start off needing to overcome these findings and then find ways to cut even more spending (presumably without endangering innocent lives).  We have found no reasonable explanation of how this colossal task could be accomplished.

Setting aside that proponents of the death penalty offer no rebuttal to the criticism that more not less should be spent on our existing system, below is our analysis of four known problems and how they would be affected by the opponents’ arguments to “mend it” (by reducing appellate review) rather than “end it” (by passing this proposition):

1)   The “Death Qualified” Conundrum:  Courts considering a death penalty have long found it necessary to ensure that their juries are “death qualified.”  This term of art generally means that any juror seated in a trial that considers murder with “special circumstances” (meaning death could potentially be imposed) must be capable of imposing a penalty of death.  Seems sensible right?  Of course, it also means that any person who is not capable of imposing such a penalty (normally for moral reasons) is automatically excluded from all death penalty cases.  See the problem yet?  By systematically excluding a large section of the population death penalty cases are necessarily decided by a jury pool that is not representative of the public – a constitutional “no-no” in criminal cases.

Nor is this issue purely theoretical.  Studies dating back to the 1980s have shown that “death qualifying” juries means that juries convicting murderers of the crime (the “guilt phase” of trial) and subsequently finding those criminals should be put to death (the penalty phase of trial) are less likely to have persons of Africa American heritage (because as a generalization between 25% -49% of African Americans oppose the death penalty compared to 15%-24% of whites), less likely to have minorities generally, less likely to have Catholics (many of whom are morally opposed to the death penalty), and are generally more “conviction prone” (since they tend to view police and authority in general with less skepticism).  (See here  for an overview of various studies including a comprehensive study by the National Science Foundation and here  for a 2005 study into death qualified juries and other “fairness” concerns in death penalty jury selection).

The problem, of course, and the reason courts have tolerated this injustice is that the converse (letting those opposed to the death penalty) remain on juries makes no sense.  It effectively overrides the death penalty statute as to that trial – another legal “no-no” (juries don’t have the power to ignore the law).  In short, while legal scholars are aware of the problem, there does not appear to be a “good” solution.

How serious is the problem?  United States Supreme Court Justice John Paul Stevens was one of the justices who, in 1976 ruled that the death penalty was (again) constitutional and could be re-implemented.  In 2008, the same Justice Stevens penned a concurrence in Baze v. Reese in which he excoriated the death penalty procedures and plainly explained:

“[T]he process of obtaining a ‘death qualified jury’ is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.”

In short, in order to have a death penalty one needs to have a system that chooses jurors who agree with the penalty of death.  But making that selection necessarily skews the system towards conviction, and ultimately death.  That “skew” means errors are more likely to occur (as evidenced by the numbers discussed above).  Reducing the appeals processes makes it even more likely that such errors will not be remedied prior to execution of a potentially faulty death sentence.

2)   The Race Problem:  Courts and commentators have long been troubled by the specter of race entering into the decision making process of life versus death.  Of course, like any racism, in today’s climate it is difficult to gauge racism to a level of scientific certainty.  Moreover, the number of “death” cases in the U.S. is small in relation to the overall crime statistic.  So, there is necessarily a “sampling” problem.  Still it is difficult to argue with some of the statistics that are available.  A 2005 Santa Clara Law Review study found that while 75% of murder victims are not Caucasian (i.e. some type of minority), well over 50% of death penalty cases involve white victims.  The same trend has been noted elsewhere.  In the Supreme Court case of McClesky v. Klemp, the court noted that fewer than 40% of Georgia homicide cases involve white victims.  Yet, inexplicably, in 87% of the cases in which a death sentence was imposed the victim is white.  In other words, white-victim cases are roughly 1100% more likely to result in a death sentence than black-victim cases.  In reviewing extensive statistical information relating to race and the death penalty the Court in McClesky did not conclude that there was no systemic racism, to the contrary, the court held that systemic racism (i.e based on statistics) was simply not a basis for relief from a penalty of death – a death-row inmate must show direct racism in his or her specific instance.  (Id).  One recent study examined the large body of empirical studies addressing race and the death penalty and reached the following conclusion:  “in 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both.”  (Id.).

Exactly how pervasive is racial disparity in death cases?  It’s hard to say with a level of certainty. However, that such disparity exists is hard to ignore.  In the 1994 Supreme Court decision of Calins v. Collins, U.S. Supreme Court justice Harry Blackmun succinctly observed:

“Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.”

As with most systemic racism, as difficult as it is to agree on the parameters of the precise problem, it is even more difficult to craft a solution.  Reducing the number of appeals and the ability to exhaust both state and federal appellate systems would only further reduce the likelihood that any racism existing in a particular case could be found and remedied before the affected inmate were executed.

3)   It’s Better To Have 100 Guilty Men Go Free Than To Have One Innocent Man Imprisoned – aka: With All The Safeguards, Could We Still Get It Wrong?  The short answer is “Yes.”  By way of example, Louisiana Death Row inmate Damon A Thibododeaux was just exonerated on September 28, 2012 after spending 15 years on death row.  Thibodeaux had confessed to the crime, but 15 years later, DNA evidence unequivocally cleared him and the prosecutor agreed that the wrong man had been facing a death sentence for over a decade.  The non-profit “Innocence Project” has successfully cleared 17 death row prisoners of the crimes for which they were sentenced to death. Overall, reports suggest at least 113 death-bound inmates had been found innocent as of 2004.  At least five California death row inmates have been convicted but then subsequently cleared of the murders for which they were previously sentenced to die.

Perhaps the most disturbing story in California’s history is that of death row inmate Thomas Thomson who was executed by California authorities in 1998.  To this day there is serious doubt as to whether Thomson committed the crime and prosecutors concede they presented two conflicting versions of the supposed crime in two separate trials. (Read more at SFGate).  The Ninth Circuit U.S Court of Appeals (the federal appellate panel that can review state death cases after the State appeals have been exhausted) found Thomson’s case so riddled with errors that it overturned Thomson’s sentence.  However, in a 5-4 decision, the U.S. Supreme Court then overturned the Ninth Circuit’s decision finding that it had rendered its decision after the expiration of a procedural deadline.  (Id.).  Thompson died by lethal injection in July 1998.  We can think of no better example of the potential pitfalls of imposing procedural limitations on appellate review.

The problem that the penal system has with such “getting it wrong” in death cases should be obvious.  Prisoners are tried and punished in the name of “The People of the State of California.”  So, if Thompson was innocent, or if any of the other death row exonerees had not been exonerated prior to their scheduled execution, the “state” and its people (that would be us voters) would be guilty of taking a life without justification in a deliberate and premeditated fashion – if that sounds familiar it should.  It’s the same First Degree Murder standard applied to all death row inmates (though happily “special circumstances” would likely not be satisfied).  This is why those involved in the justice system generally feel that a death system must be completely fool-proof:  Something that is proving exceedingly difficult, if not impossible.  Reducing the amount of appellate review of each death case will only compound that problem.

4)   The Deterrence Argument – Does Killing People Actually Deter Killing People?: The 2008 Commission report concluded that it is not at all clear that the extremely high costs of having a “death penalty” result in any deterrent effect among criminals.

“Whether the death penalty has a deterrent effect is a hotly contested issue. Compare Dr. Paul Rubin, Testimony Before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Committee on the Judiciary, U.S. Senate, Feb. 1, 2006, with Donohue & Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005), and see Shepard, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. Legal Studies 283 (2004). (See the Commission report at fn. 8]).

A review of raw data shows a more troubling trend.  In every case, states that do not have the death penalty have lower murder rates than states that have a death penalty.  Of course, correlation does not necessarily mean causation but it certainly does give one pause.  Indeed, a recent New York University and Virginia Tech  study examining 50 years of data from Trinidad and Tobago (which was convenient because that country has a history of both the existence and the absence of the death penalty)  the sociology professors concluded that there exists  “no association between the administration of the death penalty and subsequent murder rates.”

Other studies point to an even more disturbing observation termed “the brutalization effect,” which suggests that the death penalty may actually increase the murder rates – which would certainly be one explanation for the higher rates of murder in death penalty states.

“Studies of capital punishment have consistently shown that homicide actually increases in the time period surrounding an execution. Social scientists refer to this as the “brutalization effect.” Execution stimulates homicides in three ways: (1) executions desensitize the public to the immorality of killing, increasing the probability that some people will be motivated to kill; (2) the state legitimizes the notion that vengeance for past misdeeds is acceptable; and (3) executions also have an imitation effect, where people actually follow the example set by the state, after all, people feel if the government can kill its enemies, so can they (Bowers and Pierce, 1980; King, 1978, Forst. 1983).”

(See a study by Gary Potter, Phd of the Department of Justice and Police Studies collecting and analyzing numerous authorities).

Reducing the quality or quantity of appeals available to death sentenced offenders is, admittedly unlikely to affect the issue of whether death provides any deterrence, much less whether death may actually lead to increase murder rates.  Still, while this element must be considered a “wash” in our analysis, those of us who have seen the death penalty legal process up close and are perhaps torn by the potential pros and cons of the system, are most troubled by this last observation:  If we are not absolutely positive that the death penalty deters murder, and if we have even an inkling that it might exacerbate the problem, how can we realistically consider working to increase death sentences?

What Do The Propositions Propose?

Proposition 62 abolishes the death penalty in California (the federal death penalty for terrorism and the like is unaffected) replacing it with LWOP, meaning an inmate can never be released on parole. It makes more stringent the current requirement that inmates work while in prison and also increases to 60% the amount of inmate wages (which must be paid to inmates) those inmates can be forced to surrender to compensate victims of the offender’s crimes.

Overall the legislative analyst estimates that passage of Proposition 62 would reduce costs to county governments (as a result of decreased trial costs), reductions in costs to state and county governments as a result of reduced appellate costs, and reductions in prison costs because non-death penalty inmates are less expensive to house than those that have been sentenced to death. The Legislative Analyst predicts savings of $150,000,000 annually if Proposition 62 passes and is not eclipsed by Proposition 66.[12] Although the Analyst has increased its estimate by about a third since it analyzed Proposition 34 four years ago,[13] based on the 2011 study and its follow-up report, we think that existing estimate is still probably quite conservative.

Proposition 66 accepts some of the criticisms of the death penalty system, but seeks to address those with a “mend it don’t end it” approach. It does so by attempting to reduce the avenues that inmates have to prove errors in the process that convicted them and placed them on a path to death. Specifically, to address a shortage of lawyers currently willing to take on death penalty appeals (360 inmates are currently waiting for counsel[14]) the proposition allow less qualified counsel to take such appointments and concurrently requires attorneys seeking other state appointments to accept death appeals – so if you are facing the death penalty your court-appointed counsel might be very well versed in DUI laws; here’s hoping you were actually guilty. It also requires that challenges start in the same court that handed down the sentence (which strikes us as a bit of a conflict of interest) and also requires that those newly appointed lawyers (who may have never been involved in a death case) file their appellate petitions within one year and completely resolved within five years; if they do not, the petition is either summarily denied (confirming the death sentence)[15] or yet another court action could be filed seeking a court order seeking relief may be obtained[16] (we’re not quite sure what the authors envision one court doing to another court that is overwhelmed by too many cases).[17] That may sound simplistically appealing to some who do not consider the Fifth and Sixth Amendment protections afforded to accused individuals to receive fair or due process of law and effective assistance of their counsel.[18] We suspect that these provisions will simply create a new round of errors that will require review by the federal court system. The proposal also limits Habeas petitions (among the oldest forms of relief in our union designed to free persons unjustly imprisoned; it was viewed as so critical to our justice system that it was enshrined in our U.S. Constitution[19]) to a single petition – so hopefully you don’t find new evidence after your first petition is filed and hopefully that DUI lawyer that was appointed to help you is super diligent! The proposal increases the amount of inmate salaries used for victim restitution (like Prop 62) but raises the limit to 70%, it also mandates that if a Federal Court finds a method of death unconstitutional, the state must find a new constitutional method within 90 days.[20] We can only assume the authors believe that the department of corrections is staffed with anti-death penalty activists that suddenly became unmotivated to find ways to implement the death penalty.

If it sounds to you like we are having trouble hiding our disdain for Prop 66’s simpleton approach, you are right. We checked the actual 16 pages of text to make sure the LAO and the newspapers that have criticized the drafting of this legislation as sophomoric weren’t missing something. The actual text includes such gems as “a defendant’s claim of actual innocence should not be limited, but frivolous and unnecessary claims should be restricted.” Wow. What a great idea, let’s not have court’s listen to “frivolous and unnecessary claims.” Here’s a decidedly unsurprising newsflash for voters, not only do court’s not tolerate those types of arguments now, lawyers who consider bringing them can face personal repercussions in the form of sanctions or discipline by the State Bar of California.[21] In fact, California even has a specialized procedure that allows appellate lawyers that feel their criminal clients’ are demanding that they present frivolous arguments to alert the court to that reality – in something called a Wende filing.[22] Moreover, the proposed legislation contains a maze of, frankly ridiculous, time frames for court’s to take action in a myriad of circumstances, but provides absolutely no funding for implementing that wish list; this may be the reason that former conservative, California Attorney General John Van de Kamp says “Prop. 66 is so flawed that it’s impossible to know for sure all the hidden costs it will inflict on California taxpayers”; he is joined by retired L.A. District Attorney Gil Garcetti in strongly opposing Proposition 66.[23]

Conclusion

The “smart” decision here seems obvious. Perhaps that is why 22 major newspapers support Proposition 62, while one not-so-major one opposes it.[24] The same sole Newspaper supports Proposition 66 and the same 22 oppose Proposition 66. Even that paper, the Stockton Record was actually divided the propositions and provides no real analysis for its conclusion aside from their observation that the death penalty shouldn’t be abolished when there are so many people on death row. We find that a decidedly unconvincing reason to continue throwing good money after bad on what increasingly looks to be a flawed system.

Proposition 66’s main argument — that the state should reduce time and expenses (through the LAO suggests the latter doesn’t follow the former) by limiting review of death cases — is the exact opposite action of the recommendations of the only professional Commission to have actually analyzed the current system.  Moreover, an analysis of four known “problem areas” within the system shows that such a reduction would only exacerbate what are already identified “problem areas” within this system.  That doesn’t strike us as good policy.  Add to that the fact that supporting proposition 62 addresses all of these problems (at least as to these cases), while offering cost saving of at least $150 million per year for already strained state and local budgets, and supporting Proposition 62 becomes the obvious choice.

That said, in an electoral environment where facts are overshadowed by emotion, and given the reality that opponents to Prop 62 and proponents of Prop 66 are widely outspending their opponents[25], we are not optimistic. Nevertheless, we hope voters take a dispassionate look at these important issues and vote YES on Proposition 62 and NO on Proposition 66. The list of business professionals, academics, and other leaders who have done exactly that is both impressive and telling.[26]

Recommendation:

Prop. 62 = STRONG YES

Prop 66 = STRONG NO

[1] Much of our research here tracks the write-up we created in 2012 when we analyzed Proposition 34.

[2] https://calmatters.org/proposition/proposition-62-and-66-death-penalty/

[3] Id.

[4] http://voterguide.sos.ca.gov/en/propositions/62/analysis.htm (we can’t account for the discrepancy between the Legislative Analyst’s numbers and those of the Department of Corrections.

[5] http://voterguide.sos.ca.gov/en/propositions/62/analysis.htm

[6] http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2803&context=llr, at p.S31

[7] http://voterguide.sos.ca.gov/en/propositions/62/analysis.htm

[8] As noted above, there is an odd disparity in the total number of inmates put to death that we’ve not resolved. If you have data on this, please let us know in the comments section below.

[9] http://voterguide.sos.ca.gov/en/propositions/62/analysis.htm

[10] http://voterguide.sos.ca.gov/en/propositions/62/analysis.htm

[11] http://voterguide.sos.ca.gov/en/propositions/62/analysis.htm

[12] http://voterguide.sos.ca.gov/en/propositions/62/analysis.htm

[13] https://politomuse.wordpress.com/archives/november-2012-election/propositions-nov-2012/proposition-34/

[14] http://voterguide.sos.ca.gov/en/propositions/66/analysis.htm

[15] See proposed P.C. section 1509 subd. (d).

[16] See proposed P.C. section 190.6 subd. (e)

[17] http://voterguide.sos.ca.gov/en/propositions/66/analysis.htm

[18] http://law.justia.com/constitution/us/amendment-06/15-effective-assistance-of-counsel.html

[19] https://www.law.cornell.edu/wex/habeas_corpus

[20] http://voterguide.sos.ca.gov/en/propositions/66/analysis.htm

[21] https://www.law.cornell.edu/ethics/ca/narr/CA_NARR_3.HTM

[22] https://books.google.com/books?id=0y6wDAAAQBAJ&pg=SA2-PA27&lpg=SA2-PA27&dq=California+law+on+frivolous+arguments+in+criminal+cases&source=bl&ots=H_Wxv3uagY&sig=enNnzEUBI1dUVaJ_2VZx9vxJo9I&hl=en&sa=X&ved=0ahUKEwiO-IOkgYHQAhWphFQKHR_5D6A4HhDoAQhFMAg#v=onepage&q=California%20law%20on%20frivolous%20arguments%20in%20criminal%20cases&f=false

[23] http://voterguide.sos.ca.gov/en/propositions/66/arguments-rebuttals.htm

[24] https://ballotpedia.org/California_Proposition_62,_Repeal_of_the_Death_Penalty_(2016)#Support

[25] https://ballotpedia.org/California_Proposition_66,_Death_Penalty_Procedures_(2016)#Campaign_finance; https://ballotpedia.org/California_Proposition_62,_Repeal_of_the_Death_Penalty_(2016)#Campaign_finance

[26] https://ballotpedia.org/California_Proposition_62,_Repeal_of_the_Death_Penalty_(2016)#Support

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  1. #1 by kim on October 31, 2016 - 10:00 am

    Thank you!! Awesome analysis!! 🙂 xo

  2. #2 by MsAvocadoPit on November 8, 2016 - 8:16 pm

    I think I found your 13/15 execution discrepancy. Two inmates had dual death sentences in California and other states (Virginia and Missouri); both were extradited then executed, one in 1999 and the other in 2015. Counting those deaths in the total makes 15.
    🙂
    http://www.cdcr.ca.gov/Capital_Punishment/Inmates_Executed.html.

    • #3 by politoesq on November 8, 2016 - 9:43 pm

      Wow excellent research! We should recruit you as a Politopal in the next cycle! Thanks for finding the answer!

  1. Props 62 & 66 – Repeal or Restructure the Death Penalty? | PolitoMuse

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