California Voters May Get to Choose Between Two Different Death Penalty Related Ballot Propositions

Faster Executions or None at All? Californians May Get to Choose

If there’s one thing supporters and opponents of the death penalty can agree on, it’s this: The system is broken. Since California reinstated capital punishment in 1977, 117 death row inmates have died. But only 15 of them have been executed. The vast majority have died of natural causes or suicide.

When he was chief justice of the California Supreme Court, Ronald George caused a stir when he said “the leading cause of death on death row in California is old age.” The system, he said, is dysfunctional  — and few would disagree.

Even before a federal judge blocked executions in 2006, the pace of implemented death sentences was slow. It wasn’t unusual for condemned inmates to spend two decades on death row, as their legal appeals slowly wound through the courts. But to death penalty opponents, the seemingly endless delays prove that capital punishment is unworkable and should be scrapped altogether.To death penalty supporters, that delay is a travesty of justice and disrespectful to crime victims and their families who, they say, deserve to see the ultimate sentence implemented.

Come November, California voters could have two completely different options for fixing the system. Two groups are preparing to collect signatures for ballot measures that would present stark choices.

One, the Death Penalty Reform and Savings Act of 2016, would limit inmate appeals, which can drag on for decades, and expedite executions. It would also give the California Department of Corrections and Rehabilitation more latitude in housing condemned inmates and require them to work, with 70 percent of their wages going to crime victims.

The other proposal, which ballot measure proponent Mike Farrell calls “The Justice That Works Act of 2016,” would ban executions altogether and convert all existing death sentences to life in prison without the possibility of parole.

The Death Penalty Reform and Savings Act of 2016 is current being reviewed by the Attorney General’s Office. A similar measure was proposed last year and endorsed by three former California governors. It never made it to the ballot.

An attorney advising proponents of the current death penalty reform measure told me that first effort was “controlled by crime victim families,” suggesting it didn’t have the kind of professional political consultants needed to make it to the ballot.

This time around, he said, Sacramento-based strategist Aaron McLear and his firm, Redwood Pacific, will guide the effort.

This week the nonpartisan Legislative Analyst’s Office released its fiscal review of that measure. While acknowledging the measure would affect various costs, “the magnitude of these effects would depend on how certain provisions in the measure are interpreted and implemented,” the LAO wrote.

In conclusion, it wrote:

• Increased state costs that could be in the tens of millions of dollars annually for several years related to direct appeals and habeas corpus proceedings, with the fiscal impact on such costs being unknown in the longer run.
• Potential state correctional savings that could be in the tens of millions of dollars annually.
• Proponents of the measure to ban capital punishment must be more pleased with the LAO analysis of their measure. The LAO estimates a “net reduction in state and local government costs of potentially around $150 million annually within a few years due to the elimination of the death penalty.” You can be sure that will end up in a TV commercial for the measure.
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• Proponents of both measures have yet to collect a single signature. Assuming they get a green light from the attorney general and the secretary of state, they’ll have 180 days to collect the necessary signatures to put it before voters.
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• If both succeed, they’ll likely join a November 2016  ballot with measures related to legalizing pot, raising the minimum wage and strengthening gun control. All that, plus a presidential election and the race to replace retiring U.S. Sen. Barbara Boxer.
• In other words, a political junkie’s dream come true.

By Scott Shafer

Via http://ww2.kqed.org/news/2015/12/14/faster-executions-or-none-at-all-california-voters-may-choose

Federal Judge Rules Death Penalty Unconstitutional in California

A federal judge in Orange County on Wednesday declared the death penalty "unconstitutional" in the State of California.

In the first ruling of its kind, U.S. District Court Judge Cormac Carney in Orange County made the ruling, according to the American Civil Liberties Union of Northern California.

Attorney General Kamala Harris said she is "reviewing the ruling." And a spokesperson for the Claifornia Department of Corrections did not immediately respond for comment.

ACLU of Northern California Associate Director Natasha Minsker, who is not directly involved in the case but following it closely, tweeted as she read the ruling, citing the judge who said the current system is plagued by delay and violates the Eighth Amendment, among other problems.

In her opinion, Minsker said the judge made this unprecedented ruling because he felt that "enough was enough."

Cormac was appointed to the federal bench by then Republican President George W. Bush in 2003.

The case stems from a 1995 case of Ernest Dewayne Jones who sued Kevin Chappell, the warden of the California State Prison at San Quentin.

According to a court document, Jones was condemned to death by the State of California on April 7, 1995. He remains on death row today, awaiting execution, but without any certainty as to when, or whether it will actually come, Carney wrote.

"Mr. Jones is not alone," Craney wrote.

Of the 900 people sentenced to death for their crimes since 1978, when the current death penalty system was adopted by California voters, only 13 have been executed so far.

Calling the system's administration "dysfunctional," Carney wrote that it will continue to result in an unpredictable period of delay preceding their actual execution.

For the random few for whom execution becomes a reality, they will go on to languish for so long on Death Row that "their execution will serve no retributive or deterrant purpose and will be arbitrary."

In his 29-page ruling on the Jones vs. Chappell case, Carney wrote that when an individual is condemned to death in California, the sentence carries with it the promise that it will actually be carried out.

That promise is made to citizens, jurors, victims and their loved ones and to the hundreds of individuals on death row, he wrote.

However, Carney argues, “for too long now, the promise has been an empty one.”

“Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State,” he wrote.

The delays have resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determines whether an individual will actually be executed, Carney wrote,

In his closing paragraph, Carney says that the current system serves no “penological purpose.” 

via: http://www.nbcbayarea.com/news/local/Federal-Judge-Rules-Death-Penalty-Unconstitutional-in-California-267380871.html

Four out of Nine Supreme Court Justices Are Okay With Executing the Innocent

By Paul Goodman
Back before I was a telco nerd, I was a criminal defense nerd, and I still follow developments in criminal justice.  While the criminal justice system evolves, one constant is that race still plays a huge role. If you want proof, there’s no better policy to examine than the death penalty. If you’re a member of a minority in this country, you’re far more likely to get the death penalty if you’re convicted of murder. For example, about fifty percent of murder victims are white; however, in cases which result in an execution, about eighty percent of the victims are white.  Similarly, a study of the death penalty in Georgia concluded the race of the defendant and the race of the victim play a huge role in whether the government executes the defendant:

Defendant’s Race	Victim’s Race	% Sentenced to Death
Black	White	22
White	White	8
Black	Black	1
White	Black	3

(That bottom statistic isn’t terribly trustworthy:  Out of 2,500 homicide cases in the study, only 65 involved a white defendant and a black victim, too small a sample to be reliable.)

Without getting into the whole death penalty debate, most people can agree that if we’re going to execute people, it should be people who are actually guilty.  We’ve almost undoubtedly executed innocent people.

Since 1973, over 140 people have been exonerated and freed from death row. There’s a host of reasons innocent people end up on death row, from the way memory works to bad science toprosecutorial misconduct. Like everything created by human beings, the justice system makes mistakes.

McQuiggen v. Perkins is a case about evidence of innocence. Under federal law, a defendant sentenced to the death penalty can only present new evidence of their innocence within a year of their last appeal. So if you uncover new evidence proving your innocence a year and one day after that appeal, you’re out of luck. On Tuesday, the Supreme Court, with a 5-4 vote, decided that in some circumstances, the one-year limit doesn’t apply.  That will save some innocent lives, but four justices were willing to strictly enforce the one-year limit even if it means killing people who have done nothing wrong.

In a dissenting opinion, Justice Scalia bitterly complained about the ruling. He takes his usual positions—the Court doesn’t have the authority to make the exception, the Court must strictly interpret Congress’ wishes, and so on. Here’s a particularly chilling excerpt:

There are many statutory bars to relief other than statutes of limitations, and we had never (and before today, have never) created an actual-innocence exception to any of them.

Scalia’s dissent argues that because Congress created the one-year limit, the Court does not have the authority to carve out exceptions to that limit.  The subtext, however is that Scalia has no problem with our government executing a perfectly innocent person. Neither do the three justices who joined the dissent. That’s a disturbing proposition, and completely ignores the pervasive racism of our criminal justice system.

Law is full of what we call “legal fictions.”  For example, when you click the “I agree” button when using the iTunes store, courts will assume you read and understood Apple’s terms and conditions, even if you didn’t.  Or get this one: If you buy a smart phone, by removing the shrink wrap, you agree to the terms and conditions which are printed in a booklet inside of the box. It’s one of those situations where courts decide, “we don’t know whether you agreed or not, but for the sake of efficiency, we’ll assume that you did.  Otherwise, courtrooms will be even more backlogged than they already are.”

There are times when the law shafts you for the sake of efficiency.  But what I’m most disgusted by is the fact that on May 29, 2013, there are Supreme Court justices who do not understand  that the government deciding to kill you should not be one of those times, especially when that government is more likely to kill you if you’re a person of color, and there’s a fair chance you don’t deserve to die.

via Greenlining.org

Race and Death Penalty Juries

via NY Times

North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.

A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias.

In 173 cases between 1990 and 2010, the study examined decisions involving 7,421 potential jurors (82 percent were white; 16 percent were black). In 166 cases, where there was at least one black potential juror, prosecutors dismissed more than twice as many blacks from the jury (56 percent) as others (25 percent). With black defendants, like Mr. Robinson, the disparity was even greater. Even accounting for “alternative explanations” besides race for different “strike rates” — for instance, excluding those who expressed ambivalence about the death penalty — the study found blacks were still more than twice as likely to be dismissed.

Under a 1986 Supreme Court case, it is unconstitutional for a prosecutor to strike any potential juror on the basis of race, ethnicity or gender. But the court allowed dismissals of jurors for other reasons — like their attitude toward the death penalty or even their demeanor. Prosecutors often use these reasons as pretexts to eliminate blacks from juries. North Carolina’s Racial Justice Act expressly allows consideration of a pattern across many cases. The study found a regular pattern of state prosecutors intentionally discriminating against potential jurors because of race, even though a judge had ruled that the potential jurors could be counted on to render a fair verdict and sentence in a death penalty case.

This bias is not news in North Carolina. Since colonial times into recent decades, racial prejudice has been a huge factor in the imposition of death sentences in the state. The Racial Justice Act, a response to that terrible history, uses statistical studies in regulating the death penalty, as the Supreme Court said legislatures could properly do in a 1987 case. Opponents of the law are battling to repeal it and have scheduled a hearing on it this week. The evidence of gross racial bias presented in Mr. Robinson’s case calls for commuting his sentence — but also for abolishing the death penalty in North Carolina.