The history of California's death penalty is like a dystopian Goldilocks and the Three Bears story. Its original death penalty law, codified in the late 1800s, was too hot -- with no guidelines for how or under what circumstances to impose death, it gave juries too much discretion. It was struck down as unconstitutional in 1972. The next version was too cold -- taking the opposite approach with a mandatory death sentence that automatically imposed death when a defendant was found guilty of first degree murder, it provided for no discretion at all. That law was found unconstitutional too. But unlike with Goldilocks, the death penalty scheme passed by California voters in 1978 -- the present law -- is far from just right.
As recently described in a Los Angeles Times editorial, California's death penalty is a "dysfunctional mess." It has proven to be ineffective, unreliable and arbitrarily applied. And it cannot be fixed.
Among the many problems with California’s death penalty is that it leaves far too much power in the hands of individual prosecutors in individual county district attorney’s offices to decide which cases are "death worthy." Indeed, one of the critical factors that determines who receives a death sentence is not the nature of the crime or record of the defendant but a wholly arbitrary one -- the county in which the crime happens to have been committed. Remarkably, there are only a tiny fraction of counties -- sixteen -- in the entire country that account for most current death sentences, and five of them are here in California (Los Angeles, Orange, Riverside, San Bernardino and Kern).
Another factor leading to arbitrariness is the quality of the defense team. It has long been understood that the death penalty is generally reserved for those with the worst lawyer, not those who commit the worst crimes. Defendants who are represented at trial by experienced, well-trained capital defense attorneys, particularly in public defender offices, are far less likely to get the death penalty than those represented by private lawyers who often suffer from conflicts of interest when it comes to spending time and money on developing a defense. The differences are stark. In Los Angeles, for example, thirty defendants represented by private attorneys have received a death sentence compared with four represented by public defenders.
And, one can't talk about the systemic problems with the death penalty without talking about race. It is simply a reality that one who kills a white person is far more likely to be subject to the death penalty than one who kills a person of color. Add the ability of prosecutors to use peremptory jury challenges to strike African Americans and Latinos from juries, and the fact that most judges and prosecutors in counties where the death penalty is most frequently sought are white, and we are left with a system that is plagued by racial bias.
In sum, California’s current death penalty has proven to be an arbitrary and unreliable government program that has cost taxpayers $5 billion dollars while resulting in "just" thirteen executions – none in the past ten years. All the while, 746 men and women languish on the largest death row in the country – a volume of death sentences that has clearly overwhelmed the judicial system.
There are two death penalty initiatives on November’s ballot: Proposition 62 will repeal the death penalty while Proposition 66 purports to reform it.
The backers of Proposition 66 are pushing another fairy tale. In reality, Proposition 66 would take a broken system and make it worse by shifting the costs and burdens to ill-equipped lower courts and unqualified attorneys. It purports to speed up appellate review of death sentences by adding new bureaucratic layers to the process -- saddling local trial courts with the responsibility of adjudicating capital appeals and forcing attorneys with no experience with capital cases to take them. A recent San Francisco Chronicle editorial called Proposition 66 a “highly complex, probably very expensive and constitutionally questionable scheme.”
And even worse, Proposition 66’s proposed changes would actually slow down, not speed up, an appellate process that already takes 25 years or more. The nearly 750 people on death row are all entitled to qualified attorneys to handle their post-conviction challenges -- but there are simply not enough lawyers ready and, more importantly, able to do so. But the answer isn't lowering the bar for the appointment of hundreds of untrained attorneys and increasing the number of courts that can consider challenges as Proposition 66 would do. This would only lead to more problems, more delay and more unreliability -- and more costs.
And even assuming Proposition 66 could miraculously speed up the first part of the appellate process in state court, there is a second layer of mandated review in federal court after the state process concludes -- another bottleneck in which over 200 of California death row inmates are seeking review (a number that is itself larger than just about every other state's death row). Proposition 66 does nothing to address the delays in federal court – and thus the delays in the system overall -- because California voters can’t set rules for the federal post-conviction process.
The Los Angeles Times described Proposition 66 as “a menu of mostly distasteful ideas” that is unlikely to “achieve the kind of fast-tracking” its proponents promise while likely to make the system “even more expensive.” It would undermine the already tenuous ability of the legal system to ensure that death sentences are fairly and consistently imposed and that innocent men and women are not executed. This attempt at streamlining justice will simply not fix the intractable flaws of California's death penalty.
Proposition 62 provides a simple, commonsense solution to an unfixable death penalty system. Replacing the death penalty with life without the possibility of parole, according to the non-partisan Legislative Analyst’s Office, will save taxpayers $150 million every year. More importantly, Proposition 62 will finally put an end to this risky, discriminatory, arbitrary and dysfunctional mess.
To volunteer, donate and/or learn more about Prop 62, click here.
[Read more: The Arbitrary Execution of Tom Thompson; Another Poster Child For California's Dysfunctional Death Penalty]