No on 66

Proposition 66 makes a set of changes to the *government code* and to the *penal code*. Broadly speaking, these changes are intended to streamline the appeals process for someone who has been convicted of a crime and sentenced to death.

Proposition 66 inherently conflicts with another measure on the ballot, Proposition 62, which repeals the death penalty. If both propositions pass, the proposition which gets the larger number of Yes votes will take effect. Accordingly, if you are voting for Proposition 62, you should *under no circumstances* vote for Proposition 66.

—The changes Proposition 66 would make—

* Proposition 66 would explicitly state that *victims of a crime* have a right “to have judgments of death carried out within a reasonable time”, thereby giving victims of crime a recognizable, legal interest in the execution of the person convicted for the crime.

* It would require that all executions be carried out within five years of conviction, and require the state court system to adjust its procedures to make sure this happens

* It would allow the state, the sentenced criminal, or the victims of the crime to sue to enforce the time limit if, for some reason, the appeals process is taking too long. (It’s not clear as a practical matter what the remedy would be when a victim sues to force appeals to move faster).

* It would require that all executions be carried out within 30-60 days of the conclusion of the appeals process

* It would require the Supreme Court to appoint random attorneys to handle appeals for indigent death penalty convicts

* It would change the rules so that any petition for habeas corpus (essentially, an attack on conviction or sentence) be heard *by the court which heard the original case*

* It would require that any habeas petition be brought within one year, unless a court finds that a preponderance of the evidence (whether or not admissible at trial) shows either actual innocence or ineligibility for the death penalty

* It would prohibit a stay of execution for consideration of a habeas petition brought outside the one year, unless a court finds that there is a “substantial claim” of actual innocence o r ineligibility.

* It would require trial courts to resolve habeas petitions within two years of filing

* It would limit issues on appeal to issues raised at trial, except for ineffective assistance of trial claims

* It abolishes special housing for death row inmates and distrubutes them across the general population

* It requires death row inmates to perform prison labor, and directs that 70% of their wages be spent on restitution fines or orders

* It exempts rules and procedures adopted pursuant to Prop. 66 from the Administrative Procedures Act

* It says that *only* the original court can hear claims that the method of execution is unconstitutional

* If a federal court finds a method of execution unconstitutional, it requires that Corrections adopt a new, constitutional method, within 90 days.

* It prohibits any medical licensing board from revoking the license of a doctor who assists the department in carrying out executions

* It makes some hyper-technical changes to the operational rules for the state’s habeas resource center (which provides assistance to indigent criminals).

— There are a bunch of changes there, and mentally, I broadly classify them as follows:

* Some of the changes are directed at streamlining the process and making it run faster (carrying out executions within five years, carrying out executions within 30-60 days of the end of appeals, requiring habeas petitions to be brought within a year and resolved within two years, and requiring speedy adoption of new processes if an execution protocol is deemed unconstitutional).

* Some of the changes are directed at ensuring that only the original trial court is hearing new cases, which presumably both makes things faster (the original trial has the context and already understands the situation and thus doesn’t have to be brought up to speed) and reduces variability in outcomes which might arise as a result of things being heard in different courts

* Some of the changes are directed at making life harder for the death-sentenced, by abolishing death row and requiring the convicts to work

* Some of the changes are directed at increasing victim involvement in the process

* One of the changes cannot be understood without understanding a wide swath of California legal procedure and is included in the measure for reasons I don’t understand.

— Streamlining the process nad making it run faster —

This is the main goal of Proposition 66, and it’s the thing which gets the most discussion in the campaign. *If we are going to streamline the process*, these provisions generally make sense, although one of them is actually impossible to carry out and has a very “Knut commanding the waves to stop” feel about it. (There’s simply no way that a federal court, having ruled the existing execution protocol invalid, will confirm that a new protocol is valid within the ninety day limit set by this proposition – the federal courts don’t work that fast, and the proposition can’t command a federal court to act within a specified period of time. Accordingly, it’s impossible for Corrections to comply with this requirement).

Whether or not you think we should streamline the death penalty really depends on beliefs you bring to the conversation that are not grounded in this proposition per se. If you’re opposed to the death penalty, of course, you should be opposed to streamlining. If you think that criminals have too many rights and are too protected by the state, streamlining makes sense.

For me, on this question, the issue is: can streamlining be carried out in a way that does not decrease the likelihood thatactual innocence will be uncovered? Executing an innocent man, for whatever reason, is a travesty and a stain on the honor of the state; we should go to great lengths to avoid it.

It’s hard to tell. The measure does allow actual claims of innocence to be brought at any time – but by requiring the execution within a short period after the end of appeals and making it harder to get a stay of execution for such claims, it reduces the amount of time for evidence of innocence to be found (which is a real issue in cases that are based on, for example, lying informants). That said, it’s *already* the case that death-sentenced convicts have the best chance to get their claims of innocence heard and analyzed, because there’s a vast army of volunteers interested in helping, and that’s unlikely to change.

The other issue is whether the time limits are realistic. Which is to say: one to two years to hear a case may simply *not be enough time* given the speed at which our system normally operates, and commanding it to operate faster without ensuring that more resources are made available does not seem likely to be successful.

— Requiring only the original trial court to hear new cases —

From what I can tell, these provisions exist under the theory that having the original trial court hear any new cases will result in those cases taking less time because the original trial court is already familiar with the evidence.

But that’s a double-edged sword, because if the claim is *actual innocence*, then the original trial court is way less likely to approach the new evidence with an open mind; the court’s familiarity will incline it to prejudge the new evidence – not through any venality of the court, but through standard human psychology.

— Making life harder on the death-sentenced —

Proposition 66 would abolish death row and send the death-sentenced to the general population. The idea behind this, on some level, is that death row is too *easy* on the death-sentenced.

There may be something to that.

And yet … putting the already death-sentenced in the general population is a *terrible idea*. It’s a terrible idea *for the other inmates* because the death-sentenced have no incentive to behave reasonably in the general population. They’re *already sentenced to die*; what more can the state do to them? What leverage do the wardens have, either carrots or sticks, to motivate good behavior?

It’s a bad idea; it’s guaranteed to lead to problems with prison security.

— Increasing victim involvement in the process —

I don’t understand what the practical effect of these changes is. I mean, say an appeal runs past five years, and the victim’s family sues; what’s the remedy? An order from one court to another court telling it to go faster? How is that enforced?

One answer to this is that the court hearing an appeal could be ordered *to dismiss the appeal* in furtherance of the rights of the victim. But it’s hard to imagine that happening, because that would clearly violate the appellant’s due process rights *under the federal constitution*.

So this set of provisions strike me as being rhetorical sugar whose practical effect is unclear but likely close to nonexistent.

— Stepping outside the Administrative Procedures Act —

The Administrative Procedures Act is a piece of legislation which enforces rules for how state agencies are supposed to operate *procedurally*. It includes rules that have to be followedd when new procedures or regulations are adopted; I do not know the specifics of California procedure law, so I don’t know what the rules are.

Proposition 66 exempts from the APA any regulation or procedure adopted pursuant to Proposition 66.

It’s not clear to me *why*. I assume there are elements of the APA which are perceived as slowing down the process, and so the authors of the initiative want to prevent those parts of the APA from operating, and it’s probably easier to just prvent the entire thing frmo operating than it is to try to piece out which parts to keep and which parts not to.

This strikes me as being a bad idea, both because there’s no good way for anyone voting on it to know what it does *and* because it sets a precedent which will later be used to exempt other things from the APA, too.

— A summary —

There are some things in this measure which, in my mind, should give a strong supporter of the death penalty pause. It moves death-sentenced convicts into the general prison population. It involves victims in the process in a way which is unlikely to have any actual effect but which is going to harm them by increasing their involvement and then disappoiinting them in the outcome. It exempts large parts of the death penalty process from the Administrative Procedures Act, setting a bad precedent.

That *should* be enough, in my opinion, for death penalty supporters to send this measure back and ask for a new one.

I will be voting ‘No’.

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