JURIST Guest Columnist Stephen Cooper, a former DC public defender discusses how California’s Proposition 66 will fail to reform California’s fractured death penalty system…

“Californians for Death Penalty Savings and Reform“—an advocacy group spearheaded by district attorneys and several family members of murder victims—has collected enough signatures to qualify the “Death Penalty Reform and Savings Act of 2016”[PDF] for placement on the November 8 ballot. On July 1, California’s Secretary of State officially certified the measure, issuing it a number, “Proposition 66.” The group claims this initiative will “reform” California’s fractured death penalty and “speed up” executions in our state where currently 748 [PDF] men and women wait to die.

On the other side of the issue is “Justice That Works,” lead by Mike Farrell, the actor who starred in MASH, a longstanding death penalty abolitionist and internationally renowned human rights activist. Joining Mr. Farrell are an impressive array of politicians from across the political spectrum, religious leaders, attorneys, writers, artists—and just like the Californians for Death Penalty Savings and Reform group— influential law enforcement groups and the family members of murder victims. They too secured enough signatures to qualify proposed new legislation, Proposition 62, “The Justice That Works Act of 2016,” for the November 8 ballot. Proposition 62, they say, would: (1) replace the death penalty with life in prison without the possibility of parole; (2) require death row inmates to work and pay wages to their victims’ families; and (3) save California taxpayers a projected 150 million dollars a year.

With these basics in mind about the grave and complicated choice Californians are soon to make—a decision that will greatly influence the continued existence of the death penalty in America—I respectfully submit that, despite its fanfare, Proposition 66 is no “Eureka!” moment for Californians. Instead, unlike carpenter James Wilson Marshall’s historic discovery of gold at the base of the Sierra Nevada Mountains in 1848, Proposition 66’s proposed turbo-charging of California’s “machinery of death” is, underneath its sheen, twenty-four carat fool’s gold.

Out of the gate it needs saying that this “speedy death penalty” initiative, if it were to become law, would do absolutely nothing to reduce the current massive backlog of condemned state prisoners to whom it could not retroactively be applied without a long, bruising, legally dubious and extremely expensive fight.

Perhaps of equal or greater importance, voters need to remember that, when we talk about a “backlog” of death row inmates, we are not talking about curtailing an exploding population of coyotes. We are talking about a population of human beings, many of whom suffer from serious mental illness, a frequent byproduct of a childhood where poverty, abuse, violence, and neglect were the norm. Moreover, it bears noting that in order to clear this “backlog” of 748 souls, California would have to execute a person a day—every day, including Saturdays, Sundays, and holidays—for more than two years.

If ushered into law, Proposition 66, intended to rev up California’s “machinery of death” to similar macabre-type output, would do anything but. Not only would it deprive Californians of their rightful seat at the table of civilized, just and peaceful people around the world—whose countries long ago rejected capital punishment—it would result in a flurry of even more death penalty appeals (sucking money from voters’ wallets and exhausted state coffers at a faster clip than wildfire burns).

Here are just three of the more obvious cataclysmically-bad provisions in the initiative:
1. The proposed law would “require attorneys who are qualified for appointment to the most serious non-capital appeals and who meet the qualifications for capital appeals to accept appointment in capital cases as a condition for remaining on the court’s appointment list”; this provision will open a floodgate of new ineffective assistance of counsel cases due to an increased number of incompetent, unqualified, and/or improperly trained lawyers taking death penalty cases—some motivated solely by financial need.

Forcing lawyers to take cases they otherwise would not is death penalty proponents’ wrongheaded way of addressing the fact that there are not enough willing and qualified lawyers in California to take these kinds of cases—the most difficult, emotional, time-intensive, resource-draining cases our legal system has. Clearly the logical answer is not the forced conscription of lawyers in these, the most serious of cases.

2. The initiative’s express language seeks to snatch the independence the law currently gives California’s Habeas Corpus Resource Center (HCRC) to decide which attorneys are qualified to represent death row inmates in postconviction proceedings; specifically, the proposed language of the bill provides “that the final determination of whether to include an attorney in the roster shall be made by the Supreme Court and not delegated to the center.”

The first of many problems with this provision is it constitutes a per se violation of Guideline 3.1.B of the 2003 American Bar Association’s (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases[PDF]. The ABA Guidelines are standards established by a blue-ribbon panel of experts in the capital defense arena including lawyers, judges, scientists, think tanks, and many other accomplished individuals and organizations. Guideline 3.1.B very explicitly makes clear that the HCRC “should be independent of the judiciary and it, and not the judiciary or elected officials, should select lawyers for specific cases.”

Second, it is hard to see this provision as anything but a desire by death penalty proponents to punish the HCRC for its long-standing and effective efforts advocating for the condemned—such as its litigation before United States District Court Judge Cormac Carney—leading to Judge Carney’s ruling in Jones v. Chappell. (In that heralded case, Judge Carney vacated the death sentence of Ernest Dewayne Jones declaring “California’s Death Penalty System Unconstitutional”[PDF] because it is arbitrary, it serves no penological purpose, and it violates the Constitution. Judge Carney’s order was subsequently overruled on procedural grounds, and not on the merits, by the United States Court of Appeals for the Ninth Circuit.)

The insertion of this vindictive-minded provision, which does nothing but hurt the quality of California justice, underscores why the bill as a whole is not reform-centric and should be defeated.

3. The bill arbitrarily ramps up filing periods and adjudication timetables for death row appeals and postconviction motions when more and more states—including California, which in 2012 lead the nation in exonerations of wrongfully convicted citizens, are realizing the horrific mistakes caused by a rush to justice atmosphere these new deadlines would duplicate. (As just one of many examples of what can happen when there is a rush to judgment in the death penalty context, take the case in which “Scalia Once Pushed Death Penalty For Now-Exonerated Inmate Henry Lee McCollum.”)

To sum up, the choice voters have to make in November—one that goes to the core of who we are as Californians—Proposition 66, the “Death Penalty Reform and Savings Act of 2016,” is a wolf in sheep’s clothing; it would yield no savings, and it does not reform. Reform and savings will only be realized when California’s barbaric, antiquated, and failed experiment with the death penalty, ends. For this reason, and for many others, Californians would do much, much better to vote for Proposition 62, “The Justice That Works Act of 2016.”

Stephen Cooper worked as a DC public defender between 2003 and 2012 and as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.

Suggested citation: Stephen Cooper, Proposition 66, The “Death Penalty Reform and Savings Act of 2016,” is Fool’s Gold for Californians, JURIST – Hotline, July 6, 2016, http://jurist.org/professional/2016/07/Stephen-Cooper-proposition-66.php.