California’s Choices on Death Penalty: Speed it up or Abolish It

Friday, May 27, 2016
(graphic: Hulton Archive/Getty)



By Bob Egelko, New York Times


SAN FRANCISCO -- Death-penalty supporters submitted signatures on a ballot measure last week aimed at speeding up executions in California, setting the stage for voters to decide in November whether to retain and overhaul the state's death penalty or abolish it.


Prosecutors, law enforcement groups and victims'-rights advocates turned in 593,000 signatures for the initiative, which would attempt to fix a system plagued by delays and high costs by tightening legal deadlines and requiring more lawyers to take capital cases. Last month, opponents of the death penalty submitted 601,000 signatures for an initiative to repeal capital punishment and replace it with life in prison without parole. Each measure needs 365,880 valid signatures to qualify for the ballot.


A recent Field poll (pdf) indicated that Californians were closely divided, with 48 percent in favor of speeding up executions and 47 percent preferring to eliminate them. If both measures win majority votes, a provision in the pro-death penalty initiative says only the one receiving more votes would become law. That has been the rule for conflicting ballot measures in the past, but a leader of the campaign to abolish the death penalty argues that a majority vote for the repeal measure would override any vote for the rival proposal.


``If we repeal the death penalty, they (supporters of the speedup measure) will be modifying procedures for a policy that no longer exists,'' said Quintin Mecke, deputy campaign manager for the repeal initiative.


But an expert on election laws said he thinks the courts will uphold whichever measure passes by a higher majority.


``The usual rule is, if they're in conflict, the one that gets more votes would be the winner,'' said Rick Hasen, a UC Irvine law professor. State courts have focused on whether two ballot measures are actually in conflict, he said, and ``I don't see how you can both speed up something and abolish it.''


The goal of the prosecution-backed measure is to end lengthy delays in the current process, which typically requires condemned prisoners to wait 25 to 30 years before their appeals are resolved. One provision would require the state's high court, which directly reviews all capital-case appeals, to issue decisions within five years of each death sentence.


The court currently decides 80 to 90 civil and criminal cases a year. With more than 300 death-penalty appeals now pending, and about 18 new death sentences in the state each year, the justices would have to devote themselves almost entirely to capital cases to comply with a five-year deadline, and disregard the rest of their caseload.


But a supporter of the initiative said it wouldn't be applied that way, at least not at first.


``There's going to be a catch-up period,'' San Mateo County District Attorney Steve Wagstaffe said Thursday before submitting signatures for the speedup initiative at the county elections office. ``The standard we're trying to set is for the long term.''


He said the initiative, while requiring the court to decide capital cases in five years, doesn't impose any penalties for missing the deadline. Similarly, Wagstaffe said, it would probably take some time, and additional funding from the Legislature, to train more defense lawyers to handle death penalty appeals that the initiative would require them to accept.


Death Row inmates often wait five years for court-appointed lawyers, who must meet strict standards for experience and training. The initiative would require appointment immediately after sentencing and would also require attorneys to take on capital cases if they already accept court appointments to represent other criminal defendants.


Opponents say the proposal is unworkable and would prompt some lawyers to give up their practice rather than accept protracted, low-paying death-penalty cases. Meanwhile, opponents say, other lawyers would be compelled to take on cases they weren't qualified to handle, leading to more appeals, reversals and delays.


``There are not enough qualified lawyers'' to handle the hundreds of appeals of currently unrepresented Death Row inmates, said Michael Ogul, a Santa Clara County deputy public defender and past president of the California Public Defenders Association. He said the goal of speeding up executions is a ``pipe dream,'' and even if it succeeded, he said, it would only ``increase the risk of executing an innocent person.''


Wagstaffe replied that the November election would test two competing views: that the death penalty in California is beyond repair, and that it can be made to work with better training and fewer delays.


``It's time for the public in California to say what they want,'' he said.


Californians voted to restore capital punishment in 1972 after the state Supreme Court ruled it unconstitutional, and approved the state's current death penalty law in 1978. An initiative to repeal the law was defeated by 52 to 48 percent in 2012.


But opinion polls indicate that public support for the death penalty has been declining in California, and that a majority of the public would prefer a sentence of life without parole for convicted murderers. The November election would be the first in the state's history to ask voters to choose between initiatives supporting and opposing capital punishment.


California has the nation's largest Death Row, with 747 prisoners. After the state's last execution, in January 2006, a federal judge ruled that flaws in the three-drug lethal-injection procedures and staff training had created an undue risk of a botched and agonizing execution. State prison officials have drafted several proposed changes in procedures since then but have been tied up in state and federal courts.


They agreed recently to switch to one-drug executions, and are accepting public comments through July 27 on the new regulations. The prosecution-sponsored initiative would approve the switch without public comments.


To Learn More:

Capital Punishment Activists Battle over California’s New Lethal Injection Plan (by Sharon Bernstein, Reuters)

California’s Death Penalty Reanimated on a Legal Technicality (by Ken Broder, AllGov California)

California Proposes a One-Drug Solution to Re-Animate the Death Penalty (by Ken Broder, AllGov California)

California Back on the Slow Path to Resuming Executions (by Ken Broder, AllGov California)

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