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Death to the Death Penalty in California

By Marjorie Cohn
2
Marjorie Cohn
Contributor
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and a former president of the National Lawyers Guild. She wrote "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law," co-authored …
Marjorie Cohn

The entrance to the east block of death row at San Quentin State Prison in San Quentin, Calif. (Eric Risberg / AP)

On Election Day, California voters will make a monumental moral and financial decision. Proposition 62—the Justice That Works Act—is on the Nov. 8 ballot, and if the initiative passes, it will replace the death penalty with life in prison without parole. It will also require convicted murderers to work and pay restitution to their victims’ families. And it will save taxpayers $150 million a year, according to the Legislative Analyst’s Office.

Among the states still part of the U.S. death penalty system, California has the most people on death row — 746. Florida is next, with 388 according to the Yes on 62 campaign. Overall, 2,943 people are on death row in the United States (as of Jan. 1) — meaning almost one in four people waiting to be executed are in the California penal system. The elderly make up 11 percent, and the oldest condemned inmate is 86. The average stay on death row is 18 years.

Although California has spent about $5 billion administering the death penalty, it has executed just 13 people since 1978. This means taxpayers have spent about $384 million per execution.

There is no evidence demonstrating that the death penalty deters crime, according to a 2012 National Academy of Sciences study. Capital punishment has been applied arbitrarily due to inherent bias, local political pressures on prosecutors and judges, and lack of access to quality defense attorneys by those convicted. According to Death Penalty Focus, the race of the victim and the race of the defendant are major determinants in who is sentenced to death in this country.

According to the Death Penalty Information Center (DPIC), since 1973, 156 people sent to death row nationwide were later exonerated. A 2014 study conducted by the Proceedings of the National Academy of Sciences concluded that 4.1 percent of all death row inmates are actually innocent. But the innocence rate is more than twice the rate of exoneration. That means an unknown number of innocent people have been or will be put to death. “Every time we have an execution, there is a risk of executing an innocent,” said Richard Dieter, former executive director of the DPIC. “The risk may be small, but it’s unacceptable.”

The United States has no uniform law on the death penalty. Each state is free to choose whether or not to execute people. Nineteen states have abolished the death penalty. The Inter-American Commission on Human Rights determined that this discrepancy violates the American Declaration of the Rights and Duties of Man, which the U.S. has signed.

And look at the company we keep. Only China, Iran, Iraq and Saudi Arabia execute more people than the United States.

Comparing Proposition 62 and Proposition 66

California voters will be confronted with two competing death penalty propositions on the November ballot.

Whereas Proposition 62 would replace the death penalty with life in prison without parole, Proposition 66—the Death Penalty Reform and Savings Act—purports to execute Californians more efficiently. The latter initiative would double down on the death penalty and spread the costs and burdens to local courts and counties.

Under the guise of efficiency, Proposition 66 would add two additional layers of habeas corpus review in superior and appellate courts. It would impose unworkable time frames for appeals and habeas proceedings. And it would require attorneys who may be inexperienced, unqualified or unwilling to take death penalty cases or face expulsion from the court’s public defender panel.

Moreover, Proposition 66 would transfer 746 inmates to new death row facilities at local prisons built and maintained with county funds. Counties would be on the hook to provide separate housing, guards with specialized training, security level IV facilities, and unique physical and mental health accommodations.

The increased workload on superior and appellate courts would take up a significant and (in some counties) overwhelming percentage of local resources. Proposition 66 prioritizes death penalty cases at the expense of all other matters before the criminal and civil courts. The judicial system’s ability to handle issues like business claims, family custody hearings and traffic tickets in a timely manner would be negatively impacted.

With a backlog of more than 150 capital appeals and habeas petitions now awaiting review, and hundreds more in the pipeline, the California Supreme Court would have to turn its full attention to death penalty cases for years, to the exclusion of other important matters, in order to meet Proposition 66’s proposed timeline.

Proposition 66 adds sped-up appeals timelines that are unenforceable and infringe on judicial and legislative separation of powers. Constitutionally required court procedures cannot be changed through the ballot process. California’s death penalty system is beyond repair.

Who Supports Proposition 62?

A diverse coalition of people and groups supports Proposition 62, including former death penalty advocates, victims’ families, exonerated and wrongly convicted prisoners, retired district attorneys and judges, criminal law and economic experts, and faith, labor and civil rights leaders.

Ron Briggs, who led the 1978 campaign that brought the death penalty to California, calls it a “costly mistake.” Briggs says, “Now I know we just hurt the victims’ families we were trying to help and wasted taxpayers dollars.” He maintains, “The death penalty cannot be fixed. We need to replace it, lock up murderers for good, make them work, and move on.”

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