Eliminate the death penalty in California

California: "People should vote "yes" on Prop. 62 and "no" on Prop. 66."

California voters should pass Proposition 62 and abolish the death penalty in the state. But at the very least, they should reject Proposition 66, which seeks to speed up the imposition of the death penalty and therefore increases the risk of executing innocent people. Because these 2 ballot measures are obviously incompatible, the one that gets the most votes will be implemented if both are approved by the voters. But my strong hope is that people will vote "yes" on Prop. 62 and "no" on Prop. 66.

The debate over the death penalty is not new. Yet, the overwhelming trend is toward abolishing it. Since 2000, 8 states have eliminated the death penalty. It now exists in 31 states, but it is rarely used. Only 7 states have carried out an execution in the past two years. Since the death penalty was reinstated in 1978 in California, more than 930 people have been sentenced to death row and just 13 people have been executed.

The U.S. is the only Western nation that still has the death penalty. In fact, an Amnesty International Report in 2014 documented that there are only nine countries in the world that still use the death penalty and the U.S. is in the company of nations like Iran, China, Libya, Somalia, Sudan and North Korea.

Why eliminate the death penalty? Some believe that it is wrong for the state to kill people. But why should someone who believes in the morality of capital punishment vote to pass Prop. 62? There is too great a risk of executing an innocent person. Any human system will make mistakes and the reality is that innocent people are wrongly convicted. Across the country, DNA and other new evidence have proven the innocence of more than 150 people after they were sentenced to death. In California, 66 people have had their murder convictions overturned because new evidence showed they were innocent.

Moreover, there is a greater likelihood of wrongful convictions in capital cases. As Justice Stephen Breyer has explained: "[T]he crimes at issue in capital cases are typically horrendous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person."

Also, the death penalty is administered in a racially discriminatory fashion. Many studies have documented that African Americans and Latinos are more likely to be sentenced to death than whites on the same factual record. For example, a study in Philadelphia found that African Americans were four times more likely than whites to receive a death sentence for similarly severe crimes, controlling for the prior criminal records of the defendants. Numerous studies have documented that individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to receive the death penalty. Over 20 years ago, Justice Harry Blackmun, explained that "[p]erhaps it should not be surprising that the biases and prejudices that infect society generally would influence the determination of who is sentenced to death."

Nor does the death penalty have any benefit in preventing crime. For every year between 2008 and 2013, the average homicide rate of states without the death penalty was significantly lower than those with capital punishment. A few years ago, the National Research Council (whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine) reviewed 30 years of empirical evidence and concluded that it failed to show that the death penalty had a deterrent effect.

Prop. 62 would replace the death penalty with life in prison with no possibility of parole. This actually would save the state a great deal of money. The state's independent Legislative Analyst confirmed Prop. 62 will save $150 million per year. A death row sentence costs 18 times more than life in prison.

The death penalty is so rarely carried out in California that its administration is arbitrary. The average delay between sentencing and execution in California is 25 years. A few years ago, Orange County federal court Judge Cormac Carney in a carefully reasoned and meticulously documented opinion explained: "Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary."

Why not just deal with this aspect of the problem by speeding up the imposition of the death penalty, as Prop. 66 seeks to do? It would have trial courts hear post-conviction proceedings and require that their proceedings be concluded within 5 years. Even if one believes in the death penalty and rejects Prop. 62, Prop. 66 is a terrible idea. It does not deal with the underlying causes of delay: the process of direct review by the Supreme Court, the lack of qualified attorneys to handle death penalty cases, the need for multiple levels of review. An initiative cannot create more lawyers able to competently handle death cases. Nor is faster better when it comes to handling death cases. Eliminating procedural protections exacerbates the likelihood of executing innocent people.

The time has come to eliminate the death penalty in California. Prop. 62 would do just that.

Source: Orange County Register, Opinion, Erwin Chemerinsky, October 15, 2016. Erwin Chemerinsky is dean of the UC Irvine School of Law.

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