By Christopher Zoukis
This year’s election gave California voters 17 ballot propositions to consider. Two initiatives took starkly different approaches to the state’s death penalty, offering voters what was widely described as an “end or mend” choice.
Proposition 62 sought to abolish the death penalty in California state courts, making life without parole the most severe sentence they could impose. In contrast, Proposition 66 called for retaining the death penalty while limiting and speeding up appeals of convictions in capital cases.
The Golden State has a fairly long and complex history with capital punishment. In 1972, a court ruling halted executions, only to see voters approve a ballot initiative reinstating the death penalty and more specifically defining the special circumstances in which it can be used. A 2006 decision by a federal judge in San Jose found fault with the way the state was carrying out lethal injections. After a botched lethal-injection execution in Oklahoma caused a Death Row convict obvious, intense pain, the judge ordered what was supposed to be a temporary moratorium on executions, and required that future executions have a doctor or other qualified health practitioner be in attendance to ensure the condemned prisoner had been adequately sedated.
Medical societies argued their ethics prevented members from participating in executions, and the ensuing impasse and other difficulties — such as difficulty obtaining the drugs used in lethal injections —blocked all executions in the state for the next 10 years. As a result, there are now about 750 residents on San Quentin’s Death Row.
Opponents of capital punishment argued Proposition 62 could, within a few years, reduce state spending by about $150 million annually, by eliminating now-automatic direct appeals to the state Supreme Court of death sentences, and reducing many other death sentence appeals to state and federal courts, which can delay death sentences by years or even decades. Four years ago, by a 52 to 48 percent margin, California voters rejected a similar initiative to abolish the death penalty.
Proposition 62 actually received a lower percentage of positive votes (46.1 percent) than the 48 percent for the 2012 repeal effort, while opponents — drawing almost 54 percent of the vote, compared with 52 percent in 2012 — did better. This year’s repeal initiative garnered often-slim majorities in just 15 of the state’s 52 counties. It drew 60 percent or more favorable votes in just four counties (San Francisco, Marin, Alameda and Santa Cruz), but amassed negative votes of 70 percent or more in about a dozen other counties.
Competing initiative Proposition 66, on the other hand, explicitly retains the death sentence and limits appeals by revising post-sentencing procedures. Approved by about 51 percent of voters, it embodies the Death Penalty Savings and Reform Act, which directs California courts to adopt rules to expedite legal appeals in death sentence cases, sets new time limits for appeals and would draft lawyers to handle those limited appeals.
But a lawsuit filed by a former state attorney general against state officials the day after the election seeks to keep Proposition 66 from taking effect, arguing it conflicts with the state constitution by interfering with inmates’ rights to bring — and state courts’ powers to hear — appeals of death sentences. A decision on whether that challenge will be heard could come soon.
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.