The long public debate about the death penalty is still controversial, and nowhere is the debate more prominent today than in California, where voters will decide whether to repeal it with Proposition 62 or try to streamline it with Proposition 66.
Proposition 66 is unlikely to achieve its stated goals of making the death penalty cheaper and more efficient, and will instead decrease the quality of legal representation. What’s more, instead of bringing swift justice, the measure could increase the risk of executing an innocent person.
While the American Bar Association takes no position on whether the death penalty should be abolished, our members – who include prosecutors, defense lawyers and judges – have long been committed to ensuring that capital punishment is fair, unbiased and accurate. For nearly 20 years, the ABA has called upon states to suspend executions until procedures are in place that ensure due process and minimize the risk that an innocent person will be executed. In addition, the ABA publishes the widely cited guidelines for qualifications and expectations of death penalty lawyers across the country.
Our expertise gives us a unique perspective on some of the likely pitfalls and unintended consequences of Proposition 66.
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First, it would require attorneys with no death penalty experience to represent prisoners in their first appeal if qualified lawyers are not available. Imagine being required to visit a dermatologist after you have been diagnosed with lung cancer because no oncologist is available. Expertise and experience are critical to avoiding deadly mistakes.
In fact, ineffective counsel is one of the primary reasons innocent people wind up on death row. Of the 156 death row inmates who have been exonerated since 1989, nearly 1 in 5 were found to have had ineffective lawyers, according to the National Registry of Exonerations at the University of Michigan and the Death Penalty Information Center.
Second, Proposition 66 would impose strict deadlines for attorneys investigating cases and courts reviewing them. Such deadlines violate the ABA’s guidelines for a fair death penalty system.
Capital cases are highly complex, and attorneys typically need to review thousands of pages of trial records, witness statements, police and medical documents and other evidence to adequately prepare an appeal. The ABA has found that having enough time to review existing evidence and look for previously undiscovered information is critical to ensuring that legitimate legal claims are reviewed by the courts and to increasing the chances that the wrongly convicted are discovered. Though the average exoneree spent 11 years on death row before proving their innocence, Proposition 66 would cut the total time for appeals to just five years.
Third, Proposition 66 was designed to speed up the appeals process and save California money. But supporters fail to take into account that if unqualified attorneys make mistakes or new evidence is uncovered after the shortened deadlines, state and federal judges could be forced to send cases back to lower courts for additional review or to correct constitutional errors. This could end up taking even longer and further burden California’s courts.
The ABA is sympathetic to the frustrations of the families, victims and defendants who have suffered from the massive delays and inefficiencies in California’s death penalty system. But people deserve changes that will address the problems effectively, not diminish the fairness and accuracy of our justice system. We should not cut corners in the administration of the death penalty. Unfortunately, that is what Proposition 66 would do.
Linda A. Klein is president of the American Bar Association. She can be contacted at firstname.lastname@example.org.