Competing Death Penalty Measures Revive Emotional Feud

Death PenaltySACRAMENTO – Thirty years ago, California voters did something unprecedented (and not seen since): They bounced Chief Justice Rose Bird from the supreme court. Two other state high-court justices also failed to win reconfirmation to the court, following an intense political battle centering on the justices’ opposition to the death penalty.

It was easy for many people to understand the emotional nature of the issue during mid-1980s. Crime rates had soared by 276 percent over a 20-year period. They had begun to fall again in the late 1980s, but political angst often trails the data. Justice Bird rejected the death penalty in all 64 such cases that came before her and so became a lightning rod for those upset over crime. Crime rates crept up again in the early 1990s, but have been falling precipitously since.

Now, there’s been a recent spike in crime, and a debate over the role some recent incarceration policies have played in that uptick. For instance, some blame Proposition 47, the 2014 voter initiative that reduced some felonies to misdemeanors, and the governor’s realignment policy, which houses some prison inmates in county jails. Others say the data doesn’t back up those claims, and that crime rates ebb and flow for various reasons.

Whatever the case, crime rates remain relatively low – and the crime issue doesn’t come close to generating the emotions it did during the Rose Bird controversy. Nevertheless, voters on Nov. 8 are being asked to revisit the death-penalty issue in two competing initiatives. It’s a crowded ballot, with 17 initiatives overall, which explains in part why these measures have not garnered much attention. But they offer Californians two starkly different choices.

In Proposition 62, voters are being asked whether to repeal the death penalty for those found guilty of murder and replace it with life in prison without the possibility of parole. In Proposition 66, voters are asked whether to streamline the appeals process to make it easier for the state to execute convicted murderers. When initiatives are contradictory, the one that receives the highest votes prevails. An interesting showdown is in the works.

Ironically, Prop. 62 would put an end to executions that rarely happen anyway. The last execution in California took place a decade ago – all executions have been delayed because of legal challenges to the use of lethal injections. The nonpartisan Legislative Analyst’s Office puts the numbers in perspective: “As of April 2016, of the 930 individuals who received a death sentence since 1978, 15 have been executed, 103 have died prior to being executed, 64 have had their sentences reduced by the courts, and 748 are in state prison with death sentences.”

Those realities actually bolster the case made by the supporters of both initiatives. Backers of Prop. 62 argue that the state’s death penalty is a failed system because so few people are actually executed. The cost per execution, they argue, is $384 million as they languish on costly death rows. Instead of endless delays, they propose doing away with the penalty – something supporters say will provide “real closure” for families of victims. Instead of fighting in courts, convicted murderers will have a permanent sentence and will never be allowed to go free.

Backers of Prop. 66 say the solution to the lack of executions is to speed up the appeals process. “There are nearly 2,000 murders in California annually,” according to supporters’ official ballot argument. “Only about 15 death penalty sentences are imposed. But when these horrible crimes occur, and a jury unanimously recommends death, the appeals should be heard within five years, and the killer executed.” Both initiatives require these inmates to work.

Opponents of Prop. 66 raise concerns that speeding up the appeals process will cause innocents to potentially be executed, whereas supporters argue that their initiative will allow plenty of time to assure that innocent people aren’t executed. This proposition attempts to speed up the process by requiring “that habeas corpus petitions first be heard in the trial courts,” according to the LAO analysis. It also “places time limits on legal challenges to death sentences” and “changes the process for appointing attorneys to represent condemned inmates.”

The San Francisco Chronicle raises concerns about the attorney appointment process in the initiative: “Condemned inmates often must wait years for representation. The measure attempts to compel attorneys to take up capital appeals by excluding them from certain other defense work. This raises two serious concerns: One is the prospect that attorneys less steeped in the fine points of capital appeals — and it is a specialized part of the law — will be representing inmates with lives on the line. The other is the possibility of attorneys enlisted against their free will in these appeals.”

Contra Costa County District Attorney Mark Peterson, writing in the San Jose Mercury News, argued that “Defense attorneys refuse to represent death row inmates in order to thwart the process, so it takes an average of five years before a condemned inmate is even assigned an attorney.”

Proposition 62 is more straightforward than Proposition 66. The former ends the death penalty – even for those currently on death row – and replaces it with “life without parole.” The latter includes a series of complex reforms designed to “mend” the current system. For voters, however, the choice will come down less to the specific details and more to their overall outlook. If they want to end the death penalty, they’ll vote yes on 62. If they want to speed up its use, they’ll back 66.

A recent public-opinion poll from Sacramento State’s Institute for Social Research showed Proposition 62 losing 45-37 and Proposition 66 winning 51 to 20. So while the level of contentiousness over the death penalty is far different now than it was in 1986, it seems that public attitudes about it haven’t changed much in 30 years.

Steven Greenhut is Western region director for the R Street Institute. He is based in Sacramento. Write to him at

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Rose Bird’s Ghost Will Kill CA Death Penalty

Given that Gov. Jerry Brown was just elected to an unprecedented fourth term, it’s not surprising an old controversy would come up: the death penalty. As the Los Angeles Times reported, his recent appointments of three liberal justices to the California Supreme Court give “hope” to those on the state’s death row.

Of course, families and friends of the victims the death-row inmates killed may have a different opinion of whether there is “hope” for justice.

But the state has been through this before under Rose Bird, the controversial state Supreme Court chief justice Brown appointed in 1977, and who served until 1987. During her tenure, she voted against the death penalty 64 times in 64 appeals of death sentences. As a result, in 1986, voters refused to confirm her position on the court, as well as two other anti-death penalty justices, Cruz Reynoso and Joseph Grodin.

The three were not, as commonly stated, “recalled” from the court, although justices can be recalled the way Gov. Gray Davis was in 2003. Rather, Bird and the other two justices failed a routine confirmation. As the Secretary of State’s office explains: “Under the California Constitution, justices of the Supreme Court and the courts of appeal are subject to confirmation by the voters. The public votes ‘yes’ or ‘no’ on whether to retain each justice.”

Ballotpedia notes: “Justices of the California Supreme Court and California Courts of Appeal face retention to 12-year terms in the gubernatorial elections, which are held every four years in November.” Moreover, the only non-retention of justices in California history was that in 1986.

Green mile electric chairBrown appointments

Of Brown’s three recent appointments, in Nov. 2014, two were confirmed by voters: Goodwin Lieu (67.1 percent approval) and Mariano-Florentino Cuéllar (67.7 percent). So they next will go before voters, assuming they continue to hold these offices, in 2026.

The third justice, Leondra Kruger, was appointed after the election. So she will face confirmation by voters in 2018.

Brown also can be expected to appoint similar justices over his last four years in office. He has stated he wants to remake the court in an activist mode.

Which means the death penalty is dead in California — even though Brown, sloughing off Rose Bird’s legacy, won office in 2010 by saying he wouldn’t impede the death penalty.

Meanwhile, numerous court challenges have prevented the death penalty from being imposed in California since 2006, leaving 748 convicted murderers on Death Row. And just 13 convicted killers have been executed in the state since 1978.

In 2012, voters barely defeated Proposition 34 by 52 percent to 48 percent, which would have banned the state death penalty. Brown supported it.

Potentially, California could get around federal court limitations on the death penalty by adopting the methods of Texas, where 72 executions have been carried out since 2010. But there’s no way the California Legislature would do that; nor would Gov. Jerry Brown sign any such legislation into law.

What likely will happen is that, once the Brown Justices become a four-member majority on the seven-member court, they will decide a case that finds the death penalty is “cruel and unusual punishment.” They will not be recalled. Nor will their future confirmations be denied.

This also means all the activism of pro-death penalty Californians over the years, believing the state was a democracy that followed the voters, was misguided, if not delusional. On this as on so many other issues, your vote does not count.

In California, the death penalty is dead.

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