Proposition 66, California’s voter approved initiative that, primarily, puts a time limit on death penalty cases, was upheld by the state’s supreme court last week—but with some limits. In this Q&A, Stanford Law School’s John Donohue III explains the Proposition, what the court’s decision means, and the future of death penalty cases in California.
What are the main components of Proposition 66?
The California death penalty has been a uniquely dysfunctional element of criminal justice in the most populous state in the country. A ballot initiative designed to eliminate the death penalty in the Fall of 2016 (Proposition 62) led to a counter-effort by death penalty supporters to “fix” the state’s broken capital regime by presumably speeding up the process of the very lengthy death penalty appeals. This pro-death penalty Proposition 66, which barely passed in the November election, has many elements that were not well understood by voters, and will not achieve the promise of a steady flow of executions any time soon.
Proposition 66 tinkers with the minute details of many aspects of the death penalty process in California, but its main elements include: 1) a process designed to circumvent the backlog of death penalty cases at the California Supreme Court by requiring convicts to appeal their death sentences in habeas corpus proceedings filed in state superior court, followed by initial review not in the California Supreme Court but in the intermediate appellate court; 2) a requirement that state habeas counsel file petitions within one year of appointment, and that hearings in the superior courts be completed within one year; 3) a requirement that the California Supreme Court, where death penalty cases already take up one-third of the workload, must decide all capital appeals and state post-conviction petitions within five years; 4) a requirement designed to address the drastic shortfall of lawyers willing to take death penalty cases that superior courts appoint attorneys to death penalty appeals regardless of whether they are experienced or qualified in this uniquely specialized area of criminal law and if they accept other criminal appointments from the state, they must accept these appointments; 5) a requirement that death row inmates work and pay most of the proceeds to the victims of their crimes (as Proposition 62 would have done); and 6) a requirement that the state distribute 747 death row inmates ––who are currently housed in a central death row––to correctional facilities around the state.
And how will the court’s decision affect implementation of the initiative?
The potentially most consequential element of Proposition 66 was the five-year limit on deciding death penalty cases. The Supreme Court ruled that this is not binding but merely aspirational, so that element will not likely have much of an impact. As Justice Liu wrote in his concurring opinion, “Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity—not this court, not the Judicial Council, not the Legislature—can simply wave a magic wand and make it so.” Almost everything else in the Proposition was sustained by the Court (it delayed the effective date of the Proposition), so everything other than the five-year time limit will go into effect.
California hasn’t executed a prisoner since 2006. But there are reportedly nearly 750 inmates on death row. Do you expect Proposition 66 to actually result in any executions? Do you think it will speed up the legal process?
It is unclear what will happen with executions in California going forward. Currently, the impediment to execution in the state is not within the purview of this Proposition, because there is a pending challenge to the method of execution in federal court, and no executions can take place until that is resolved. Depending on the resolution of this federal litigation, the opportunity to execute the death row inmates who have exhausted their appeals could become real very soon after the issues concerning the method of execution are resolved.
It is still unclear, though, how many lawyers will be willing to handle death penalty appeals, which are long, complicated, and stressful assignments that most lawyers have not been anxious to undertake. Whether the new effort to mandate acceptance of these appeals will increase the supply of available death penalty lawyers remains to be seen. It will likely cause some lawyers to simply drop out of the pool for assignment to any criminal appeals, but may impel others who have previously resisted handling such cases to take them. The implications of this compelled service for the quality of the lawyering is uncertain, although one would expect there to be some degradation, which might speed up executions although at the expense of increasing the risk that some innocent individuals will be killed.
You’ve studied the death penalty extensively, particularly in Connecticut. Are there any lessons from your study that might inform the debate in California?
Everyone––including the authors of Proposition 66––recognized that the California death penalty system was broken, and few think that this Proposition will alter that reality substantially. The Proposition was largely a ploy to prevent a clear up or down vote on whether the death penalty should be abolished (which is what the unsuccessful Proposition 62 entailed) by misleading voters into thinking the death penalty system could be “fixed.” Most voters for the Proposition had no idea what the measure would actually do, but the idea of fixing something that was broken sounded attractive enough to garner a bare majority.
Of course, the death penalty would serve a valid state purpose if it actually reduced murders, but decades of dedicated attempts to establish any such link have been unsuccessful. As Franklin Zimring and Gordon Hawkins colorfully and accurately noted in 1986: “In reality, the death penalty is about as relevant to controlling violent crime as rain-dancing is to controlling the weather.” The reasons for this are simple. You have to do something quite terrible to be sentenced to death, and most individuals who are willing to engage in such horrible misconduct are not deterred by a remote and distant penalty. Decades of research has shown that swift and certain punishment deters crime, while the death penalty in general, and the California death penalty in particular, delivers the exact opposite of swift and certain punishment. The last murder that resulted in a death row execution in California occurred in May of 1982––over 35 years ago! It is no surprise that a punishment so rarely carried out as the death penalty is routinely proven not to deter crime.
Moreover, the death penalty is an enormous drain on criminal justice resources that could actually be used to fight crime. Since dollars spent on the years of appeals that would be avoided with the abolition of capital punishment could actually be spent on catching criminals, we know that more people end up dead or criminally victimized by virtue of having a costly death penalty system in place, than would be the case with a wise allocation of criminal justice dollars. At an average cost $86,040 per California police officer, the $5 billion we have spent on the death penalty over forty years (to execute no one) could have been used instead to put 58,113 more officers on the streets. If assigned appropriately, those officers would be expected to prevent roughly 700 murders (and much other crime). In other words, our past failure to use our criminal justice resources wisely has made us all less safe.
Are there many death penalty sentences in California?
Some recent empirical research by Brandon Garrett, Daniel Krauss and Nicholas Scurich has revealed another problem with the operation of the California death penalty. These researchers looked at Orange County, which is one of just sixteen counties in the country that has imposed five or more death sentences since 2010. Despite the recent vote in California on Proposition 66, and despite Orange County’s status as a major center of death sentencing in the state (and indeed the country), it appears that 35% or more of jurors reporting for jury service were excluded from serving as jurors in death penalty cases because of their substantial doubts about capital punishment. The role of the jury in our criminal justice is severely compromised when such large numbers of jurors are excluded from serving, and yet the supporters of the death penalty know that allowing them to vote would drastically reduce the number of death sentences handed down.
Can you talk about the cost of death penalty sentences?
Knowledgeable observers of the death penalty know that the waste of resources on this system when the dollars could be used to actually reduce crime reduces overall public safety. Some may be willing to accept the greater crime costs in order to be able to kill a small percentage of horrible murderers many years after their crimes. Indeed, Kant seemed to think so in supporting the death penalty with the refrain: “Let justice be done, though the world perish.” But justice is one of the last things that the death penalty system generates and if you or your loved one perishes because of it, the cost will seem very high indeed. Of the roughly 100,000 murders committed during the duration of the current death penalty regime, about 50,000 were never caught and thus escaped punishment entirely. Indeed, apprehension of murderers should be the focus of someone who is interested in justice and crime reduction, rather than wasting resources on years of litigation to try to kill a small number of individuals who are no longer a threat to society by virtue of their incarceration.
The big remaining question will be whether Jerry Brown will follow the lead of former Republican Illinois Governor George Ryan, who in his last year in office in 2003 commuted more than 160 death sentences to life sentences. It would be a brilliant stroke to do so, particularly if Governor Brown were to announce that the resources saved would be channeled into effective crime-fighting dollars that would reduce the number of homicides and other criminal victimizations throughout the state. Brown is certainly savvy enough to know that dumping the death penalty would be sound public policy, but whether he will be willing to follow Governor Ryan’s example remains to be seen.
John J. Donohue III has been one of the leading empirical researchers in the legal academy over the past 25 years. Professor Donohue is an economist as well as a lawyer and is well known for using empirical analysis to determine the impact of law and public policy in a wide range of areas, including civil rights and antidiscrimination law, employment discrimination, crime and criminal justice, and school funding.