Capitol Alert

California has upheld the death penalty. Now what?

Go inside San Quentin’s death row

About 750 condemned inmates are living out their lives on death row at San Quentin State Prison, California's oldest state prison which opened in 1852.
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About 750 condemned inmates are living out their lives on death row at San Quentin State Prison, California's oldest state prison which opened in 1852.

California has once again reaffirmed its commitment to the death penalty.

On Tuesday, voters defeated Proposition 62, a measure to abolish capital punishment. It garnered only 46 percent of the vote, the second time in four years that the state has rejected an effort by critics to repeal the death penalty.

Proposition 66, which aims to speed up a fractured system that has produced only 13 executions in nearly four decades, was narrowly ahead as vote-counting continued, with about 51 percent support.

Regardless of whether it passes, the state will continue to try capital cases.

“The people of California believe that death is the appropriate punishment for the very worst murderers,” said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, who helped write Proposition 66. “For those who are opposed to it, it’s time to get over it and make the system work.”

Jacob Hay, spokesman for the Proposition 62 campaign, said his side still believes an end to the death penalty will eventually come in California.

“Nothing’s actually different today. It’s still ineffective justice, it’s still costly, it’s still a risk of putting an innocent person to death,” Hay said. “In time, more and more people will see that.”

Though death sentences have fallen to record lows here in recent years, as they have nationwide, they are still more common than in most other states because of a handful of counties in Southern California where prosecutors push for capital punishment at higher rates. In 2015, for example, Riverside and Los Angeles counties each sent more people to death row than the entire state of Texas.

District attorneys widely supported Proposition 66, encouraging voters to maintain the death penalty for the worst of the worst murderers. But Anne Marie Schubert, the district attorney for Sacramento County, said she did not expect the affirmation by Californians would encourage prosecutors to seek death sentences more frequently again.

“Our decisions should always be driven by the facts and circumstances of the case,” Schubert said.

Opponents of the death penalty had hoped that Proposition 62 would send a strong national statement about the future of capital punishment, which has been in decline across the country. Instead, California was part of a mini-wave of states on Tuesday that halted that trend: Oklahoma voted to add the death penalty to its state constitution, while Nebraska reversed its Legislature’s decision last year to repeal it.

Ana Zamora, campaign manager for No on Prop. 66, said opponents would continue to challenge aspects of the law where ambiguities remain, like the safety of the lethal injection protocol: “We will explore every avenue to make sure every legal problem is raised.”

The people of California believe that death is the appropriate punishment for the very worst murderers.

Kent Scheidegger, legal director for the Criminal Justice Legal Foundation

If Proposition 66 were to pass, voters could expect delays to its implementation. Opponents, who slammed many of its provisions as unworkable, vowed to challenge it in court.

The biggest changes it would make involve the appeals process for death sentences. Condemned inmates can wait more than a decade for a lawyer, who may then spend years filing petitions for the court to consider new evidence or mitigating factors.

In an effort to speed up legal challenges, the initiative mandates they be completed within five years. That includes both direct appeals, which focus on the proceedings of the trial, and habeas corpus petitions, regarding material that was not part of the original trial.

Attorneys would have to file any habeas corpus petition within one year of being appointed to represent an inmate and could not file additional petitions, except for innocence claims. Those petitions would be considered by the same trial judge, who proponents argue could handle them more efficiently because he or she is already familiar with the case, rather than by the California Supreme Court, which would still receive direct appeals.

Proponents are hopeful the overhaul would allow the state to proceed from death sentences to executions in under a decade.

“The changes in this initiative are not creating a system from scratch,” Scheidegger said. “It is making repairs.”

But for its requirements to be carried out in a timely manner, the state would need hundreds more lawyers to take up ongoing cases for inmates awaiting legal representation. Defense attorneys have called this unfeasible, even though Proposition 66 requires California to expand the pool of qualified counsel to include lawyers who are eligible for appointment to the most serious non-death penalty appeals.

Michael J. Hersek, director of the Habeas Corpus Resource Center, one of the state agencies that represents death row inmates, said he had no idea where his office would get the money to hire more attorneys. Legal fees for habeas corpus petitions run into the hundreds of thousands of dollars.

“This is a mystery to me. There’s no funding attached to it,” he said. “Good luck getting those cases done without more lawyers.”

Alexei Koseff: 916-321-5236, @akoseff

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