Californians face a life-or-death choice on Nov. 8: Pass an initiative that promises to make capital punishment more efficient, or join the march of human history by abolishing the death penalty.
We urge abolition. Although Proposition 62 would end the death penalty in California, a “yes” vote would not imply a scintilla of sympathy for the 747 condemned murderers in California. Instead, it acknowledges the reality that the death penalty is dysfunctional and beyond repair.
Even if voters approve Proposition 62, death row inmates would never take a breath outside prison walls, nor should they. Their sentences would be converted to life in prison without parole. The most serious penalty for the worst murderers in the future also would be life in prison without parole.
The alternative, Proposition 66, was written by prosecutors and promises to speed executions. In time and after much litigation, it might succeed to some extent. But given California’s generally liberal bent, this state will never become one where executions are common.
To predict a future under Proposition 66, look at the past and present. California reinstated the death penalty first by legislation in 1977, and by initiative in 1978. John Briggs, a state senator who promoted that 1978 initiative, paid a young lawyer $5,000 to write it. That attorney, Don Heller of Sacramento, became an opponent of the death penalty, as did Briggs’ son, former El Dorado County Supervisor Ron Briggs.
John Briggs’ vision of expanding the death penalty failed. Of the 930 people sentenced to death since 1978, 15 have been executed, two of them by other states. Another 104 died of natural causes, suicide or drug overdoses, and 64 had their sentences reduced.
Nationally, capital punishment has become uncommon. Courts and governors in a half-dozen states have imposed actual or de facto moratoriums, California included, and the Nebraska Legislature abolished capital punishment last year, though voters there are contemplating a referendum to reinstate it.
The Death Penalty Information Center counts 16 executions this year, down from 28 in 2015, and 98 in 1999. All of the state-sanctioned killings were in Southern states, seven of them in Texas and six in Georgia. Jurors nationally have imposed fewer death sentences, 49 last year, down from 114 in 2010.
Proposition 66 pledges would counter that trend by compelling completion of death penalty appeals within five years, and limiting collateral appeals, or habeas corpus petitions. The measure would relieve the California Supreme Court of some death penalty work by shifting aspects to trial and appellate courts, and increase the number of lawyers who represent death row inmates. As it is, inmates must wait years to get an appellate lawyer.
It makes sense on paper. But lawyers cannot be compelled to handle death cases. And the death penalty defense bar is a tenacious, creative and determined group. Although the initiative might shorten state court appeals, California voters have no direct impact on the federal court system where lifetime tenured judges decide cases on their own terms, or don’t.
Nothing in the initiative forces the Legislature and governor to increase funding to pay for the additional appellate costs – estimated by the legislative analyst to be in the tens of millions annually. Politics being what they are, lawmakers would find many more popular places to spend money.
“It will spawn years and possibly decades of litigation,” said Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C.
California’s method of execution is lethal injection, adopted in 1992, supposedly as a more humane alternative to the gas chamber. In 2006, a federal judge ruled that California’s three-drug lethal injection was deficient. Since then, the state has been revising the method, or, more accurately, slow-walking the revision. Gov. Jerry Brown and Attorney General Kamala Harris, who morally oppose capital punishment, are in no hurry to hasten executions.
Proposition 66 might resolve that lethal-injection issue by embedding into law a method that courts have deemed to be constitutional. But even if it all works, Californians must ask themselves whether they want an efficient death penalty system, and all that would entail.
There would need to be more than an execution a day, every day, for two years to empty death row. The cost of administering the system would be huge, and no governor, attorney general, warden or correctional officer would want that many deaths haunting their conscience.
If the state were to become efficient at carrying out executions, the time inevitably would come when one of the men – they’re almost all men – who is put to death would be severely mentally ill or intellectually deficient, would have been represented by incompetent lawyers, or, worst of all, innocent.
Sooner rather than later, questions of equal treatment would come to the fore. African Americans account for 36 percent of the condemned population, far surpassing their percentage of the state’s population. Riverside County represents less than 6 percent of the state’s population, but has sent 89 people to death row, almost 12 percent of the total. San Francisco, by contrast, has just one person on death row.
Whether the death penalty is a deterrent or not – the weight of the evidence says it’s not – thoughtful supporters can muster powerful arguments for capital punishment. Vengeance and retribution are among them, as many survivors of murder victims can attest. Ask any homicide detective or career prosecutor, or even many social workers, and you will hear details of depravity beyond comprehension.
Their arguments, all heartfelt, are not without merit. We understand them. For most of this newspaper’s history, The Sacramento Bee supported capital punishment. But there also are good reasons why so many oppose it, not least the extent to which state-sanctioned killing makes all of us complicit. We changed our position in 2012 when California faced the question of abolition in the form of Proposition 34.
Since voters narrowly rejected that initiative, little has changed, except that 20 more condemned inmates beat the executioner by dying of natural causes or suicide. And the questions persist about our collective willingness to carry out the ultimate penalty, about the vagaries of an imperfect justice system, and the fundamental principle we learned as children: Two wrongs don’t make a right.