Proposition 66, which aims to cap death-sentence appeals at five years, stands at 51.1 percent of the vote. While such a slim margin of victory would usually suggest the electorate is divided, a competing measure to end the death penalty altogether was rejected by 53.4 percent of voters (ballots are still being counted, so totals may change).

“California voters not only want to keep the death penalty intact but they want it to work as intended,” said Anne Marie Schubert, Sacramento County district attorney, who called Prop. 66’s lead “insurmountable.”

Prop. 66 speeds up the appeals process by expanding the number of courts and attorneys able to hear and try death penalty appeals to meet a five-year cap on the appeals process that currently takes decades. A court order could be sought when cases drag on. 

Stance stands out

In a cycle when voters chose a cornucopia of liberal policies, like implementing a $2-per-pack tax on cigarettes, extending a tax on the highest incomes, legalizing recreational marijuana, placing further restrictions on guns and ammo and upholding a ban on plastic bags, the death penalty position stands out.

In fact, voters at the same time resoundingly approved a measure that would allow (but not guarantee) early parole for thousands of “non-violent” inmates, showing that Californians’ soft spot hardens when it comes to those considered the worst of the worst. 

“Californians have long been a bit schizoid when it comes to the death penalty,” said John J. Pitney, Jr., a Roy P. Crocker professor of politics at Claremont McKenna College. 

Pitney recalled Democrat Dianne Feinstein’s campaign ad from the 1990 gubernatorial race. Feinstein, who is currently a U.S. senator, but at the time had just finished a second term as mayor of San Francisco, pitched herself as pro-choice, pro-environment and “the only Democrat for governor for the death penalty.”

Good policy?

While some debate the morality of the death penalty, others argue it is an ineffective policy.

According to data provided by the Legislative Analyst’s Office, no one has been executed since 2006. The vast majority of Death Row inmates will die of other causes long before the state kills them (Prop. 66 will presumably speed this process up, although there’s still legal complications with the lethal injection process).

And it’s costly: The state spends $55 million each year on death penalty appeals, for both prosecutors and court-appointed defense attorneys. 

Opponents use the inefficiency and cost of the current system as grounds for abolition of the death penalty. But that may have ultimately been their undoing, said Pitney.  

“In recent years, opponents of the death penalty have argued that it is too inefficient and costly,” Pitney said. “That argument may have backfired, at least in this state. Instead of abolishing it, voters backed a measure to make it more efficient.”

If approved, Prop. 62 would repeal the death penalty and commute the condemned sentences to life without parole. On the other hand, Prop. 66 would speed up the process by expanding the number of courts and attorneys able to hear and try death penalty appeals to meet a five-year cap on the appeals process that currently takes decades. (If both measures pass, the highest vote-getter would become law.)

But failure to meet the five-year time frame would not commute the sentence or throw out the appeal, according to the proposed language. So what happens at the five-year mark?

“If the process takes more than five years, victims or their attorneys could request a court order to address the delay,” said Drew Soderborg, managing principal analyst with the state’s Legislative Analyst’s Office. “Because it is unknown how often this would happen or how courts would rule on such a requests, it is difficult to know what the effect would be.”

A court order could pump a sense of urgency into whichever party or court is holding up the process — the violation of which could be punishable in some instances.  

Is the system broken?

Proponents of both measures agree that the current system is broken. The appeals process takes decades at a tremendous cost to the state ($55 million annually), which has to prosecute as well as defend in many instances.

Because of legal complications with the lethal injection process, the state hasn’t executed anyone since 2006. In fact, only 15 inmates have been executed since 1978, while 100 have died while waiting, according to an LAO analysis of the measure.  

Currently, there are around 750 inmates on Death Row. Some supporters of a total repeal of the death penalty argue it’s a cruel and unusual punishment, while others point to exonerations, which, while not entirely common, happen frequently enough to worry critics about executing innocent people. Since 1973, 156 people have been exonerated nationwide, including three in California, according to the Death Penalty Information Center.

Prop. 66 would reform the system in an entirely different way — by speeding it up. The measure would increase the pool of eligible attorneys qualified to represent condemned inmates by forcing them to do it. Many who are qualified don’t like to represent death penalty appeals because of inadequate state funding and the major time commitment. 

The number of courts in which cases could be heard would be increased under Prop. 66 by sending one type of appeal (habeas corpus petitions) back to the initial court to see if any error had been made. As of April, there were 360 Death Row inmates waiting for habeas corpus petitions. 

Critics say Prop. 66’s five-year cap is arbitrary. But proponents say it’s enough time in most instances. 

“Prop. 66 limits state appeals to 5 years instead of allowing  convicted criminals to file appeal after appeal after appeal,” said Bill Bradley, a spokesman for Prop. 66. “However, the initiative does not impose a rigid deadline that must be met in every case as extraordinary cases may take longer. With that said, five years is generally sufficient to get through state appeals, even in the most complex cases.”