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The verdict: one giant shitshow.
"California's death-penalty system is dysfunctional," the intro of the California Commission of the Fair Administration of Justice's report states. The largest issue was the decades passing between the sentencing to death and the actual execution.
"[T]o keep cases moving at this snail's pace, we spend large amounts of taxpayers' money each year," the members wrote, coalescing their frustration into a number. "By conservative estimates, [we spend] well over one hundred million dollars annually."
With those nine figures, the tone of the death penalty fight changed. No longer was it centered on Hammurabian concepts of justice, revenge, and an ultimate deterrent to protect honest citizens from rampant lawlessness.
It became a more calculating and logical debate, based on the question of whether the value derived from throwing the switch — or, in California's case, putting the needle in the arm — is worth the exorbitant cost.
That shift got repeal advocates thinking they could finally overturn Prop. 17, so they tried.
In 2012, a coalition including L.A's mayor and D.A., the ACLU, the California Nurses Association, and Hyatt CEO Nicholas Pritzker introduced Proposition 34, which would have commuted the state's death sentences — at the time, 725 — into lifetime prison terms, without the possibility of parole.
Less-publicized portions of this effort included additional restitution for victims' families and earmarking $100 million for use in homicide and rape investigations, showing the role that money had in this new debate. The prop failed, but not by a lot: The gap was 52 percent to 48, a difference of 500,000 votes in a state of 38 million.
The argument — repeal the death penalty, save California money — had legs four years ago.
But this year, the pro-death penalty side is also playing the savings game.
"If we fix the appeals process, that could save tens of millions of dollars," says Mike Ramos, the San Bernardino County District Attorney and a leading proponent of the Death Penalty Reform and Savings Act. (He has also announced his intent to run for California attorney general in 2018, and if successful in speeding up executions, could become a conservative standard-bearer.)
The "fix" is in carving away the waste in the process, bit by bit.
One reasonable-sounding argument shifts death row prisoners from San Quentin back into "regular state prisons." They will no longer be housed alone — Scott Peterson, convicted in a sensational trial of murdering his wife and unborn child, would get a cell mate — allowing for fewer correctional officers and, thus, cutting costs.
Another puts prisoners "to work" earning money to pay victim restitution, doing basic manufacturing gigs under surely heavy security, but the initiative doesn't specify beyond saying that prisoners who fail to do so will result "in the loss of special privileges," things like phone privileges, time to mingle outdoors, or control over the TV remote.
The most straightforward cost-cutting measure is the boldest. It states that "[w]ithin five years ... the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases."
This means that, once the gavel drops after a death penalty conviction, a timer will start ticking. When it dings in five years, that prisoner is out of appeals.
While that might sound sensible, experts say it's probably not constitutional.
"To dictate that to the courts takes away their constitutional authority," says Elisabeth Semel, founding director of the Berkeley Law Death Penalty Clinic. "It's a violation of the separation of powers."
Apart from the arcane arguments over which branch of government does what, there's also an issue of simple math. There are currently roughly 300 death penalty appeals, each of them essentially in a holding pattern, waiting for an oral argument before a judge.
Over the last five years, the California Supreme Court has ruled on about 24 death penalty cases a year. So, even if the court put every other type of case on hold, it would take more than 10 years to get the backlog down to zero. This is a non-starter, logistically speaking.
Plus, that length of time — and the fact there isn't a clock ticking down on how long the appeal process of the initiative can last — is a feature, not a bug. Last year, the Ninth Circuit Court of Appeals heard a case, Jones v. Davis, that argued the dramatic stretch of time between ruling and execution violates the Eighth Amendment's "cruel and unusual punishment" clause.
A lower federal court had decided that locking a human in stir for decades, waiting for the legal process to exhaust itself before killing him, was indeed cruel and unusual and put a hold on all California executions.
The Ninth Circuit disagreed — in its ruling, the word "dysfunction" appears five times — and revved the machine back up.
"Delay, in large part," they wrote, "is a function of the desire of our courts, state and federal, to get it right, to explore exhaustively, or at least sufficiently, any argument that might save someone's life." In other words, these cases should be lengthy.
But let's close our eyes and picture a world where the court abides by this (impossible) deadline. It's time for the next hurdle, the "five years or more," on average, that the condemned have to wait for (almost always court-appointed) lawyers to represent them.
As Ramos points out, "Can you imagine sitting on death row, and you don't even have an attorney for five years?" (Spoiler: The 743 people the People of the State of California plan to kill can.)
So out of the goodness of their hearts, the death penalty reformers "solve" this by forcing judges to appoint attorneys immediately upon sentencing.
"This is a magical part of the proposal," Semel says. "Where are these lawyers going to come from?"
The initiative furnishes a solution for that, too, by expanding the pool of attorneys available to argue death penalty cases, so that legal "[e]xperience requirements shall not be limited to defense experience."
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