California Votes: Propositions 62 and 66

This November, Californians face important votes on two ballot initiatives related to the death penalty: Prop 62 and Prop 66. Prop 62 proposes to repeal the death penalty in California and replace it with imprisonment for life without possibility of parole, while Prop 66 proposes to speed up the process of adjudicating capital appeals in state court through a number of complex adjustments to the process. Both propositions would require prisoners to work in prison to pay restitution to the family members of homicide victims.

The Death Penalty Information Center is a national non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. The goal of this report is to provide voters with impartial analysis concerning Props 62 and 66, to fact check both campaigns, and ensure that Californians have everything they need to make an informed choice on November 8.

This section shows the official arguments written by the Prop 62 and 66 campaigns and included in the California Voter Guide, along with analysis and additional information provided by the Death Penalty Information Center. Arguments that are verified by DPIC research are highlighted in green, while arguments that are known to be false or misleading are highlighted in red. Arguments that may be incomplete, unverified, or otherwise potentially misleading are highlighted in yellow. Click the footnote number of each highlight to see DPIC’s explanation.

California’s death penalty system has failed. Taxpayers have spent more than $5 billion since 1978 to carry out 13 executions, a cost of $384 million per execution. ¹

The death penalty is an empty promise to victims’ families and carries the unavoidable risk of executing an innocent person.

YES ON 62 REPLACES THIS COSTLY, FAILED SYSTEM WITH A STRICT LIFE SENTENCE AND ZERO CHANCE OF PAROLE

Under Prop. 62, the death penalty will be replaced with a strict life sentence. Those convicted of the worst crimes will NEVER be released. Instead of being housed in expensive private cells on death row, murderers will be kept with other maximum-security inmates.²

WORK AND RESTITUTION

Criminals who would otherwise sit on death row and in courtrooms during the decades-long appeals guaranteed by the Constitution will instead have to work and pay restitution to their victims’ families.³

REAL CLOSURE FOR VICTIMS’ FAMILIES⁴

“California’s death penalty system is a long, agonizing ordeal for our family. As my sister’s killer sits through countless hearings, we continually relive this tragedy. The death penalty is an empty promise of justice. A life sentence without parole would bring real closure.” Beth Webb, whose sister was murdered with seven other people in a mass-shooting at an Orange County hair salon.

HUGE COST SAVINGS CONFIRMED BY IMPARTIAL ANALYSIS

The state’s independent Legislative Analyst confirmed Prop. 62 will save $150 million per year.⁵ A death row sentence costs 18 times more than life in prison. Resources can be better spent on education, public safety, and crime prevention that actually works.⁶

DEATH PENALTY SYSTEM FLAWS RUN DEEP

California has not executed anyone in 10 years because of serious problems. For nearly 40 years, every attempted fix has failed to make the death penalty system work. It’s simply unworkable.⁷

“I prosecuted killers using California’s death penalty law, but the high costs, endless delays and total ineffectiveness in deterring crime convinced me we need to replace the death penalty system with life in prison without parole.” John Van de Kamp, former Los Angeles District Attorney and former California Attorney General.

THE RISK OF EXECUTING AN INNOCENT PERSON IS REAL

DNA technology and new evidence have proven⁸ the innocence of more than 150 people on death row after they were sentenced to death.⁹ In California, 66 people had their murder convictions overturned because new evidence showed they were innocent.¹⁰

Carlos DeLuna was executed in 1989, but an independent investigation later proved his innocence.¹¹

FORMER DEATH PENALTY ADVOCATES: YES ON 62

“I led the campaign to bring the death penalty back to California in 1978. It was a costly mistake. Now I know we just hurt the victims’ families we were trying to help and wasted taxpayer dollars. The death penalty cannot be fixed. We need to replace it, lock up murderers for good, make them work, and move on.” Ron Briggs, led the campaign to create California’s death penalty system.

www.YesOn62.com

JEANNE WOODFORD, Former Death Row Warden

DONALD HELLER, Author of California’s Death Penalty Law

BETH WEBB, Sister of Victim Murdered in 2011

California’s elected law enforcement leaders, police officers, frontline prosecutors, and the families of murder victims¹² ask you to REFORM the California death penalty system by voting YES ON PROPOSITION 66!

We agree California’s current death penalty system is broken.¹³ The most heinous criminals¹⁴ sit on death row for 30 years, with endless appeals delaying justice and costing taxpayers hundreds of millions.

It does not need to be this way.

The solution is to MEND, NOT END, California’s death penalty.

The solution is YES on PROPOSITION 66.

Proposition 66 was written to speed up the death penalty appeals system while ensuring that no innocent person is ever executed.¹⁵

Proposition 66 means the worst of the worst killers receive the strongest sentence.¹⁶

Prop. 66 brings closure to the families of victims.¹⁷

Proposition 66 protects public safety these brutal killers have no chance of ever being in society again.¹⁸

Prop. 66 saves taxpayers money, because heinous criminals will no longer be sitting on death row at taxpayer expense for 30+ years.¹⁹

Proposition 66 was written by frontline death penalty prosecutors who know the system inside and out. They know how the system is broken, and they know how to fix it. It may sound complicated, but the reforms are actually quite simple.

HERE’S WHAT PROPOSITION 66 DOES:

1. All state appeals should be limited to 5 years.²⁰
2. Every murderer sentenced to death will have their special appeals lawyer assigned immediately. Currently, it can be five years or more before they are even assigned a lawyer.²¹
3. The pool of available lawyers to handle these appeals will be expanded.²²
4. The trial courts who handled the death penalty trials and know them best will deal with the initial appeals.²³
5. The State Supreme Court will be empowered to oversee the system and ensure appeals are expedited while protecting the rights of the accused.
6. The State Corrections Department (Prisons) will reform death row housing; taking away special privileges from these brutal killers and saving millions.²⁴

Together, these reforms will save California taxpayers over $30,000,000 annually, according to former California Finance Director Mike Genest, while making our death penalty system work again.²⁵

WE NEED A FUNCTIONING DEATH PENALTY SYSTEM IN CALIFORNIA

Death sentences are issued rarely and judiciously, and only against the very worst murderers.²⁶

To be eligible for the death penalty in California, you have to be guilty of first-degree murder with “special circumstances.”

These special circumstances include, in part:

• Murderers who raped/tortured their victims.
• Child killers.
• Multiple murderers/serial killers.
• Murders committed by terrorists; as part of a hate-crime; or killing a police officer.

There are nearly 2,000 murders in California annually. Only about 15 death penalty sentences are imposed.²⁷

But when these horrible crimes occur, and a jury unanimously finds a criminal guilty and separately, unanimously recommends death, the appeals should be heard within five years, and the killer executed.

Help us protect California²⁸, provide closure to victims²⁹, and save taxpayers millions³⁰.

Visit www.NoProp62YesProp66.com for more information.

Then join law enforcement and families of victims and vote YES ON PROPOSITION 66!

JACKIE LACEY, District Attorney of Los Angeles County

KERMIT ALEXANDER, Family Member of Multiple Homicide Victims

SHAWN WELCH, President

Contra Costa County Deputy Sheriffs Association

Race and the death penalty is a complicated issue that is reflected in a variety of ways, and whether statistically significant evidence of racial bias is found may often depend upon the question that is asked. Advocates of Prop 62 claim that minorities are overly represented on death row, while advocates of Prop 66 claim that studies have shown no bias against minority defendants. While the representations by advocates of Prop 62 are closer to the truth, neither side’s claims tell the full story.

It is true that African Americans and Latinos make up 67% of death row while they only make up 45% of the state population. However, as death penalty proponents point out, the fact that minority groups are disproportionately represented on death row does not automatically mean that they are disproportionately represented because of racial bias in the administration of the death penalty itself.³¹ Indeed, minority groups are similarly overrepresented in many other areas of the criminal justice system. One may make the case that the death penalty is racially biased because it has a disproportionate impact on minority groups, but, as proponents of capital punishment argue, that is not the same as saying that the death penalty discriminates against individual defendants.

Another problem with assessing whether the administration of the death penalty is racially discriminatory is that the choice whether to seek and impose the death penalty is made at the county level, and when the data are looked at on the state or national level, it may distort or mask the evidence of discrimination in individual counties.³² An analysis of California’s death penalty in the 1990s, when a significant portion of the state’s death row prisoners were tried and convicted, found significant geographic disparities in death sentencing practices that had profound race effects. The study found that counties that had lower population density and less racial diversity in their populations had the highest death-sentencing rates. In those counties, defendants who were accused of killing White, non-Latino victims were more likely to be sentenced to death than other homicide defendants, regardless of the how aggravated the murders were.³³

The death penalty system in California and across the United States has shown to be racially biased in many ways other than simply the proportion of racial and ethic minorities who are sentenced to death. These include the role played by the race of the victim, jury selection practices and the racial makeup of the jury, and the impact of geography.

Nearly 80% of people who have been executed were sentenced to death for killing White victims, even though in society as a whole about half of all murder victims are African-American. Studies have consistently shown that the race of the victim is a significant factor in determining who is sentenced to death.

A study of race in California’s death penalty published in the Santa Clara Law Review concluded:

• Those who kill non-Latino whites are more than three times more likely to be sentenced to die as those who kill African-Americans.
• Those who kill non-Latino whites are more than four times more likely to be sentenced to die as those who kill Latinos.

See: Santa Clara Law Review, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999.”

One way that racial discrimination can play a role in the death penalty is through the exclusion of minorities from serving on juries. The Constitution requires that prosecutors who exclude minorities from juries provide race-neutral reasons for the exclusion, however there have been many cases in which prosecutors are found to exclude non-white jurors solely because of their race.

In California specifically, one recent report identified potential racial bias in cases in Riverside and Kern Counties. The study reported that in 2011, California Supreme Court Justices Werdegar and Moreno dissented in a Riverside County capital case that involved an African-American defendant because of race bias in jury selection and because the reasons prosecutors gave for excusing several Black prospective jurors were unsupported by the evidence. The study also found that, “Earlier this year a California appellate court reversed a Kern County case on race discrimination grounds after the prosecution struck each of the Black prospective jurors and provided implausibly race-neutral grounds for one of those strikes, mischaracterized the prospective juror’s words, and argued extensively with defense counsel about whether the juror was Black or not.”

See: Fair Punishment Project, Too Broken to Fix Part I: An In-depth Look at America’s Outlier Death Penalty Counties.

In addition, evidence suggests that the exclusion of minority jurors may have race- and class-based consequences. A 2014 mock-jury study of more than 500 men and women who had reported for jury service in Southern California found that White jurors were more likely to impose a death sentence upon a poor Latino defendant than upon a similarly situated White defendant, especially when the mitigating evidence presented in the hypothetical scenario was weak. Latino jurors, on the other hand, imposed the death sentence at about the same rate, regardless of the ethnicity and social status of the defendant or the strength of the mitigating evidence.³⁴

The location of the crime and the jurisdiction of the prosecution are other factors that significantly impact who is sentenced to die. The Santa Clara Law Review found “clear regional disparities in death sentencing, with counties that have a lower population density and a higher proportion of non-Hispanic whites in their populations to have the highest rates of death sentences.”

The Fair Punishment Project recently identified 10 “outlier counties” that use the death penalty at a higher rate than other counties in the U.S. Five of these counties were located in Southern California: Kern, Los Angeles, Orange, Riverside, and San Bernardino. In Riverside County, the rate of death sentences per 100 homicides was nearly nine times the rate for the rest of the state. Some factors identified that contributed to the higher rates of death sentences in these counties included overzealous prosecutions, inadequate defense, racial bias and jury exclusions, and excessive punishment in sentencing.

See: Fair Punishment Project, Too Broken to Fix Part I: An In-depth Look at America’s Outlier Death Penalty Counties.

Death Penalty Information Center, Race and the Death Penalty

DPIC Podcast, Race and the Death Penalty

There is always a risk of executing an innocent person. The Death Penalty Information Center maintains a list of individuals sentenced to death who are later exonerated, which currently lists 156 people including 3 from California (see below).

The risk of executing an innocent person has also been documented in other states. For a list of people executed despite strong evidence suggesting innocence, see executed-possibly-innocent

California may have already executed an innocent person. Substantial evidence has been cited to suggest that Thomas Thompson, executed in 1998, may have been innocent. The 9th Circuit Court of Appeals overturned Thompson’s conviction, but were overruled by the U.S. Supreme Court on procedural grounds based on a missed deadline. For more, see the LA Times editorial, California has executed 13 men since reviving the death penalty. Was one of them innocent?, and Judge Stephen Reinhardt’s law review article, The Anatomy of An Execution: Fairness versus “Process.”

Several inmates on California’s death row have currently pending claims of actual innocence. For example, numerous federal judges have expressed doubt regarding the conviction of Kevin Cooper.

Proposition 62’s solution to the problem of innocent people on death row is to replace the death penalty with life in prison without parole, removing the risk of executing an innocent person.

Proposition 66 includes provisions intended to protect an innocent person sentenced to death, but, according to Barry Scheck, co-founder of the national Innocence Project, “its poorly written provisions will increase the risk of executing the innocent.” Prop 66 advocates tout the procedural safeguards present in the current capital appeals process as reason to believe innocent people will not be executed in California. Prop 66, however, would significantly alter that process and, in so doing, would remove existing protections.

Prop 66 requires appeals lawyers to undertake capital cases if they wish to continue handling other criminal appeals, whether or not they are willing and qualified to handle capital cases. Some who are qualified have refused to accept appointments in capital cases because the current compensation for their services and the resources currently available to retain investigators and experts is insufficient for them to properly prepare and present a capital case. Under Prop 66, the state court appeal must be filed within one year of the attorney being appointed, and must be resolved within five years. In many of the cases of innocence documented by DPIC, evidence of police and prosecutorial misconduct that led to wrongful convictions and death sentences, and exculpatory evidence affirmatively establishing a death row prisoner’s innocence was discovered far more than five years after the conviction or appointment of appellate counsel. The short investigation and pleading deadlines and the deadlines for deciding capital cases place arbitrary limits on when evidence of innocence may be presented to and considered by the courts. And the appointment of unqualified or unwilling lawyers with inadequate time and resources to investigate and develop evidence of innocence or uncover evidence of potential police or prosecutorial misconduct further increases the risk that death row prisoners will be unable to meaningfully develop and present their claims of innocence to the court, that exculpatory evidence wrongfully suppressed by the prosecution will remain undiscovered, and that police or prosecutorial misconduct that led to wrongful convictions and death sentences will remain undetected.

Prop 66 also creates new court rules that make it more harder for a death row prisoner to obtain judicial review of an innocence claims after the artificial deadlines imposed by the proposition. For a claim of innocence to be pursued after those deadlines, Prop 66 requires the court to prejudge the merits of the evidence and determine that the prisoner is likely to be innocent. Prop 66 creates a new standard for this, requiring the judge to weigh all evidence ”including evidence that may not be admissible in court”and determine if the inmate is innocent by a “preponderance of the evidence” (more likely than not). Only if the prisoner persuades the judge that he or she is “likely” innocent may the judge entertain appeals after the now-shortened deadline, or after the first appeal has been decided. This standard replaces the existing appeal process, in which a judge can dismiss a claim of actual innocence only after hearing the claim. This provision also substantially decreases the protections currently in place to safeguard against the execution of an innocent person.

For more information about innocence and the death penalty, see: Innocence and Death Penalty.

In November 1973, while incarcerated in a state prison facility, Ernest Graham and co-defendant Eugene Allen were charged with killing a state correctional officer. Graham’s first trial resulted in a mistrial when the jury could not agree on a verdict. Graham was sentenced to death in 1976 after his second trial. The Supreme Court of California reversed the conviction because prosecutors improperly used their peremptory challenges to exclude prospective jurors who were black. Graham’s third trial ended in another hung jury, and he was acquitted by the jury in his fourth trial. (Phone conversation with now Magistrate-Judge James Larson, October 6, 2003, who represented Graham).

The California Supreme Court ruled in June 1996 that Jones should have a new trial because he was not adequately defended at his original trial for the murder of Carolyn Grayson in 1981 (In re Troy Lee Jones on Habeas Corpus, 917 P.2d 1175 (1996)). The Court found that the defense attorney failed to conduct an adequate pretrial investigation, speak with possible witnesses, obtain a relevant police report, or seek pretrial investigative funds. Moreover, the attorney elicited damaging testimony against his own client during cross examination of a witness. The prosecution announced that it was dropping all charges against Jones in November 1996, after he had been on death row for 14 years. (Associated Press, 11/19/96).
Read “California Death Sentence” by Dan Goodin in The Recorder

Morris was convicted in 1983 and sentenced to death. His death sentence was vacated by the California Supreme Court in 1988. Although the court did not overturn his conviction, it later ordered an evidentiary hearing when the state’s chief witness against Morris issued a deathbed recantation. After the evidentiary hearing, the Los Angeles County Superior Court granted Morris a new trial. Prosecutors decided not to retry the case and Morris was freed in 2000. (L.A. Daily Journal, October 29, 2002).

Three other former death row inmates were acquitted of the charges for which they were sentenced to death, however they are not included in DPIC’s innocence database because of other non-capital charges. Lee Farmer, Patrick Croy, and Jerry Bigelow were each convicted and sentenced to death, and later had their convictions overturned. Read more in the San Francisco Chronicle article.

The costs of the death penalty in California (and other states) have been studied multiple times, with all studies demonstrating that the death penalty costs more than life without parole.

Studies in California include the California Commission on the Fair Administration of Justice (2008), the Loyola Law School report Executing the Will of the Voters (2012), and most recently a follow up report from Loyola Law School California Votes 2016. Each of these reports showed that many factors substantially increase the cost of the death penalty over life without parole. Some of these factors include special housing requirements, increased trial costs, and lengthy appeals.

The claims made by Prop 62 advocates that the death penalty costs 18 times more than a life without parole sentence, and that California pays roughly $150 million per year totaling $5 billion since 1978, are supported by research studies of California’s death penalty.

Advocates of Prop 66 claim, on the other hand, that life without parole is more expensive than “a properly functioning death penalty.” This claim is not supported by evidence, either in California or in any other state.

• Shortening the appeals process and executing inmates faster
• Getting rid of special housing rules for death row

• Training a large number of new lawyers for death penalty defense
• Adding to the caseload of state courts
• Paying more defense attorneys to resolve state death row appeals faster
• Potentially increasing the length and complexity of federal habeas corpus proceedings, with attendant costs to state and federal taxpayers.

No study of the death penalty in any state in the U.S. has shown that the death penalty is less expensive than life without parole. In every state in which the cost of the death penalty has been studied, research has shown that the added costs associated with the death penalty exceed the costs of a life without parole sentence.

The claim made by the Prop 66 campaign is based on the hypothetical system envisioned by Prop 66, which its advocates argue will save money. However, there is no basis to believe that the system created by Prop 66 will actually achieve the intended result of so systemically expediting executions that it will cost less than life without parole.

The primary basis for the claim that Prop 66 will save money is the five-year time limit imposed on appeals and removing the special housing conditions on death row. However, this argument does not take into account the additional costs required to implement Prop 66 and the new time limits.

In order to implement these time limits, Prop 66 increases the pool of attorneys available to defend death row inmates, both by lowering the qualifications and by requiring non-death penalty attorneys who take state appointed appeals to also accept death penalty appeals. This provision includes substantial costs that Prop 66 advocates have not accounted for. First, conscripting unwilling lawyers to handle capital cases is expected to result in litigation over the adequacy of attorney payments and resources necessary to investigate and present death penalty claims and whether the state can require lawyers to undertake capital representation as a precondition for continuing to handle their normal appellate cases. Assuming those provisions survive constitutional review, large number of attorneys will then have to be trained to meet the qualifications for death penalty defense.

Prop 66 also diverts state appeals from the California Supreme Court to local courts. In order to meet the five-year time limit for appeals, local county courts will be required to absorb hundreds of new cases on top of their current case loads. The legal fees to address these cases, both to pay for the court costs and to pay the increased pool of defense attorneys, and the administrative costs of additional court personnel are not taken into account in the claims made by Prop 66 advocates.