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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.
What is it worth to you?


Posted by Michael Austin, a resident of Pleasanton Meadows,
on Sep 27, 2016 at 3:31 pm

Michael Austin is a registered user.

I hazard to guess that everyone that wants to stop capitol punishment in California, has never had a child, spouse or a member of their family murdered.

I recommend that California contract with the state of Texas prison systems to execute California death row inmates. It can be done at a fraction of the cost California currently pays while not knowing what to do.

Posted by Tom Cushing, a resident of Danville,
on Sep 28, 2016 at 10:52 am

Tom Cushing is a registered user.

Hi Michael: the desire for retribution, strongest among those family and others most devastated by a murder, is a natural human reaction to such an horrific event. I think of Laura Linney's enactment in Primal Fear Web Link ("but that's just me"). NObody should ever have to go through that.

That said, terrible and uncompensated wrongs are done to people every day in this life, including hundreds of other ways of losing a loved one without any justification, whatsoever. So, is murder so unique that it's a good idea to just turn it over to the basic human urge for vengeance? None of the other justifications for capital punishment works -- deterrence (e.g., TX and CA have identical murder rates, both higher than the average for states without the death penalty Web Link ), expense, etc. There's a coarsening of society implicit there; I'd prefer we move away from it.

Put another way for numbers folks, is it worth $300 million/execution for the 13 that have been carried out? Is there no better way to spend that tax money? Especially when The Other 743 families have to live with depths of constant frustration in false hope of a never-ending process, and never get the kind of closure they believe the law calls-for? I hope not to face it directly, of course, but aren't victims better-served with a more limited closure process that ensures the convict can't hurt others, and will never ever again taste freedom?

Reasonable minds differ, obviously, but that's what we're voting about.

Posted by Cholo, a resident of Livermore,
on Sep 28, 2016 at 4:29 pm

There's a part of me that enjoys reading about snuffing anybody guilty of killing innocent people, especially children.

However, it's true that many innocent prisoners have been accused and convicted of killing others. There seems to be no end to all the unnecessary suffering.

Sure hope this issues continues to come up...I'm unable to decide what to do today?

Perhaps on election day I will vote against seems to be the way I'm leaning.

Posted by Michael Austin, a resident of Pleasanton Meadows,
on Sep 28, 2016 at 5:19 pm

Michael Austin is a registered user.

Appreciate your comment.

Death penalty is much less barbaric in all cases when compared to the barbaric manner in which the defendant murdered the victim. I recommended contracting with Texas to execute California death row inmates because Texas appear to have the legislative know how, the right laws, and the expertise to get it done.

There are miscarriages of justice, as was the case with O.J. Simpson. Subsequently through his sheer stupidity he is in jail for a long time. His victims are still seeking justice. There is John Walsh, whose son Adam, was brutally murdered. John Walsh today is a man hunter. He brings the murders, the rapists, and the child predators in, so that the victims will have justice.

The death penalty is a deterrent. The murders readily plea bargain for life in prison in order to avoid a trail that will sentence them to death.

Posted by better way, a resident of Downtown,
on Sep 28, 2016 at 5:38 pm

I would like to see the death penalty abolished only due to the cost. We are not willing to do the job without endless appeals. I propose that anyone convicted to life without parole get NO appeals but be put immediately into solitary confinement for life. No contact with their outside gang bangers, no ability to continue to run their crimes from the inside. Locked up for life, no appeals, no visitors, nothing. And if they really want to be done with it they can simply stop eating or drinking and end it themselves. It is insane that we spend so much to protect the rights and lifestyles of the guilty.

Posted by Doug Miller, a resident of Country Fair,
on Sep 29, 2016 at 7:45 am

Doug Miller is a registered user.

"terrible and uncompensated wrongs are done to people every day in this life, including hundreds of other ways of losing a loved one without any justification, whatsoever. So, is murder so unique"?


Posted by Julie, a resident of Birdland,
on Sep 29, 2016 at 10:48 am

The death penalty should be abolished for three reasons:

(1) There is no evidence to suggest it is a deterrent;
(2) It is more expensive to administer than life in prison; and
(3) Vengeance should not be a foundation on which policy is created.

An eye for an eye leaves everyone blind. How do I explain to my children that you should not murder when their government murders?

Posted by Michael Austin, a resident of Pleasanton Meadows,
on Sep 29, 2016 at 7:50 pm

Michael Austin is a registered user.


You have never had a family member murdered?

There are families in this community that have had a family member murdered.

How do you explain to your children that a neighbors family member has been murdered?

Posted by Cholo, a resident of Livermore,
on Sep 30, 2016 at 9:17 am

I believe that civilized societies delight in killing people perceived as guilty of murdering others. It seems to be human nature and it has happened for as long as human beings have roamed the earth. The particulars differs but the killing persists.

Maybe killing others acts as a glue to keep societies stuck together in a crazy way?

Maybe I will vote for the death penalty.

Posted by Cholo, a resident of Livermore,
on Sep 30, 2016 at 1:01 pm

Julie...I don't believe that anybody has to suffer the death of a family member to understand/feel great sorrow when another human being is killed/murdered.

Lots of Americans believe that the killing of "gooks" was patriotic! Tens of thousands of Americans believe that the Atomic Bomb in Nagasaki and Hiroshima was necessary and made good sense. Dick Cheney has made big bucks off the war.

If you read the web page of the Southern Poverty Law Center, there are numerous citations of innocent Americans killed by HATE mongers. I haven't head a major outcry coming from Plutonia re: killing of innocent Americans by HATE Groups.

It seems to me that killing millions of living people, plants, and animals means big bucks/big business. Who cares?

If your time, your time is up. deal with it...

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