Props 62 and 66: To Kill or Not to Kill, those are The Questions | Raucous Caucus | Tom Cushing | |

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By Tom Cushing

Props 62 and 66: To Kill or Not to Kill, those are The Questions

Uploaded: Sep 27, 2016

The first in a series on this year’s crop of Props

Capital punishment is a tug-n-pull issue for California. Its terms have been invalidated, massaged, suspended and reinstated over the years, and it has played starring roles in no fewer than seven state referenda. In every case of an up-or-down choice, the voters have opted to keep it in force.

What it hasn’t been, is successfully implemented.

As indicated in the very first of these RC dispatches, there have only been 13 executions in the ‘modern’ era (none since 2006), most of the 743 doomed inmates inhabit that prime Marin real estate we call San Quentin, and more than 100 have died in-custody. If you divide those state killings into the extra public expense the death penalty entails, you get a staggering $300 Million per execution, all borne by John Q. you-n-me Taxpayers. Justice is supposed to be blind -- it’s not, but must it be ruinously expensive, to boot?

This year, voters are presented with TWO death penalty choices: not just yet-another-repeal in Prop 62, but also Prop 66 that purports to force the pace by streamlining appeals. Voter Pro-Tip – if Both contradictory Propositions pass, the one with more votes gets implemented.

Let’s look at the Repeal option first. It would end capital punishment for state law crimes, and convert existing sentences into life-in-prison, without possibility of parole. As such, the 743 would follow their prior death row decedents into oblivion, sequestered from the society whose most fundamental rule they were convicted of breaking.

In addition to the gigantic tax-waste argument above, proponents contend that each capital case also costs more than $1 Million taxpayer dollars more to litigate than ‘life’ cases. They also believe that killing gets no better because of state sponsorship, and that CA should follow the lead of most of the rest of the First World in ending the practice. Any deterrent effect, they say, is lost in the overwhelming numbers of sentences pending, decades later.

Finally, they ask: what of the 144 (count-‘em) convicted-and-sentenced-to-death inmates whose actual innocence was later established through DNA or other evidence? Worse, a 2014 study published in the Proceedings of the National Academy of Sciences estimated, conservatively, that over 4% of death row convicts simply didn’t do it. Innocents Have been executed; death is the one sentence that cannot be commuted. Oops.

It should be noted that the margins of voting in past referenda have all been in favor of retention or reinstatement, by declining margins. Prop 17 passed with 67.5% in 1972 (even the famously Prop-hostile Glates might’ve voted yes on That one); in 1986, embattled Chief Justice Rose Bird and two others were voted off the bench by similar margins, largely because of their opposition to capital punishment. A 2012 repeal prop (#37) was also defeated, although the vote was much closer: 52/48%.

According to a recent Field poll, Prop 62 currently leads 48/37/15% undecided. It might be added that Prop 37 led narrowly in the week prior to that election, but more Undecideds went with a ‘no’ vote in the booth.

By contrast, Prop 66 aims to accelerate the appeals process by making procedural changes and invoking a five-year mandate for their final resolution. The changes involve the forum where initial appeals are heard (to the trial court level and before the judge who presided at-trial), and increasing the number of lawyers available to represent The Doomed by conscripting other criminal appeals practitioners to take those cases (there has been an ongoing shortage of qualified and willing advocates). Recent polls show Undecideds leading, as most folks may not have tuned-in to its more technical substance (35+/23-/42?%).

Now, the first thing that strikes the reader of this Prop is that it purports to achieve simplification via a bill that is, itself, fully 16 pages long, in prose so vague that one newspaper (none has yet endorsed it, according to compared it to the first draft of an undergraduate paper. That’s not only problematic on the merits – it provides a wealth of material for opponents to challenge before even reaching the merits of any death sentence challenge.

In addition, although its centerpiece is an order that all direct and habeas corpus appeals be concluded within five years, Prop 66 purports to accomplish this goal simply by ordering the state Judicial Council to develop rules that will make it happen. This is a bit like the approach of the all-too-imitable South Park Underpants Gnomes (Step 1 – Steal underpants. Step 2 - ? Step 3 – Profit!), except for the deadly serious fact that convicts’ lives hang in the balance. It also fails to indicate what happens if the deadline is not met (which it won’t be), except that victims’ families can complain about it. The potential Constitutional challenges to application of such an edict are enough to occupy capable lawyers for decades.

In other words, it’s very hard to see how this Prop would accomplish its goal. In attempting to ‘mend’ a broken system, it’s far more likely to only add-in another layer of challenge, delay and frustration.

And maybe that’s the point. Despite the surface attraction of retribution for victims and their families, capital punishment is so at-odds with other bedrock values this culture holds dear that it is simply unworkable in practice. It’s time, finally, to end this practice, founded as it is on medieval notions of an-eye-for-an-eye. Society’s need for protection and families’ interests in finality can both be better met by forever separating and containing convicts, not all of whom actually did it.

So I’d recommend a Yes on 62, and No on 66.