California's death penalty is a dysfunctional mess, and the November ballot offers California voters two starkly different options for dealing with it. Proposition 62 would end the practice altogether, converting existing death sentences to life without parole and closing the largest death row in the nation. Proposition 66 takes the opposite approach, offering a menu of supposed reforms that proponents say would slash the decades-long delays between sentence and execution.
How dysfunctional is the system? Since voters reinstated the death penalty nearly 40 years ago, 1,039 convicted murderers have received death sentences, but the state has executed only 13, in part because death penalty appeals take about 25 years, according to experts. During the same period, 104 condemned inmates died of natural causes, suicides or other non-execution means — and the system has cost taxpayers about $5 billion.
Something clearly has to be changed. The answer, however, is not to speed up the machinery of death, but to dismantle it. That's why The Times urges a yes vote on Proposition 62 and a no vote on Proposition 66.
The chief reason to abolish the death penalty in California is that it is cruel and unusual punishment, both immoral and inhumane and out of step with "evolving standards of decency" in the United States. It has little deterrent effect, by most accounts, and is administered so capriciously that it makes a mockery of the concept of equal justice. Poor people and people of color are disproportionately put to death for crimes that bring other defendants merely a long prison sentence. Indeed, whether a murderer is ultimately executed often depends less on the gravity of his offense than on whether he committed it in a particular county or a particular state or was represented by a decent lawyer. The process is open to manipulation and mistakes, yet once the appeals process is complete, miscarriages of justice can never be corrected, for obvious reasons.
Even those who do not object to capital punishment on principle ought to support abolition because of the system's inefficiency, exorbitant costs and long delays. Proponents of Proposition 66 say they can speed up the process and make the death penalty work, but there are serious doubts that their proposal would achieve the kind of fast-tracking they promise, and critics argue persuasively that the system might become even more expensive. And if it does succeed, it would likely require unacceptable compromises of basic constitutional rights, increasing the chance that innocent people might be put to death. In fact, about one in 10 of California death sentences eventually get overturned. There is too much at risk to speed up the process.
Among the biggest contributors to the slow appeals process is a lengthy delay — often five years or more — in assigning appellate lawyers for the automatic "direct appeal" to the state Supreme Court. About half of current death row inmates are still waiting for a lawyer because of a lack of trained capital appeals attorneys and insufficient funding to pay them to handle such labor-intensive cases. To try to address that, Proposition 66 would create an expanded pool of attorneys by requiring any qualified lawyer cleared to argue appellate cases to take capital cases or lose the right to practice before the appeals court. Proposition 66 opponents say most lawyers would forego appellate work rather than take on a long, arduous and poorly remunerated death penalty appeal assignment.
Proposition 66 also directs the courts to conclude both the direct state appeal and any habeas corpus petitions — a second form of appeal to which condemned inmates are entitled — within five years. That would be achieved in part by sending the habeas filings back to the original court rather than to the Supreme Court, under the theory that more courts hearing more cases would speed up the process. But that also means that it is the court where the initial error may have occurred that would be asked to determine whether there was indeed an error, which creates an inherent conflict of interest. And since those cases could still be appealed, it's hard to see how the changes would lead to any meaningful reduction in the time it takes to handle death penalty appeals.
The state of Colorado tried a similar, though more aggressive reform nearly 20 years ago, setting a two-year limit on appeals. It has failed miserably. Two current appeals are in their eighth year with no end in sight. "I'm almost to the point where I would say, 'Let's do away with it and save the taxpayers the money,'" former state representative Jeanne Adkins, the sponsor of the speed-it-up law, recently told the Denver Post.
As a cost-cutting measure, Proposition 66 also would dismantle death row and sprinkle the condemned inmates around the state's prisons as the Department of Corrections and Rehabilitation sees fit. But transferring inmates from San Quentin to maximum-security facilities around the state would make it harder for the inmates to consult with their lawyers. Pelican Bay, for instance, is a more than six-hour drive from San Francisco, where the Habeas Corpus Resource Center that handles about half of the habeas petitions is. And sending the petitions back to the original court also puts many miles between the courtroom and lawyers trained for such specialized arguments.
There are numerous other shortcomings with the measure, including making it more difficult for condemned prisoners to sue the state over whether the state's lethal injection protocols meet constitutional requirements. Such lawsuits have indeed slowed California's ability to carry out executions. But if there is a problem with the process, the solution is to fix the process, not remove it from public scrutiny.
Ultimately, Proposition 66 offers a menu of mostly distasteful ideas — all in the service of making it easier for the state to execute people, which it shouldn't be doing in the first place. And in fact, rather than streamlining the process, Proposition 66 is most likely to add yet more delays.
Supreme Court Justice Harry Blackmun was right: It's time to stop "tinkering with the machinery of death." So vote yes on 62, and no on 66.