On Oct. 26, 2016, the Colleges of Law will host a debate on two propositions on the California ballot, Proposition 62 and Proposition 66.
Proposition 62 repeals the death penalty in California and converts existing death sentences to life without parole. Proposition 66 offers reforms that would shorten delays between sentencing and execution. Robert Sanger, COL adjunct faculty member, experienced trial attorney, and criminal law specialist has long opposed the death penalty and he will argue in support of Proposition 62 and in opposition to Proposition 66. Richard Simon, Senior Deputy District Attorney for Ventura County, will argue on the opposing side.
Proponents of “Yes” on 62 to repeal the death penalty and their pro-death penalty opponents agree: The death penalty system in California is broken and it is expensive. “Yes” on 62 and “No” on 66 would replace the death penalty in California with life in prison without the possibility of parole and would provide that inmates work and pay restitution to victims’ families. According to the ballot financial impact statement, the Legislative Analyst Office (LAO) determined that “Yes” on 62 will save taxpayers $150 million per year. But, more importantly, “Yes” on 62 puts an end to an archaic practice that creates a substantial risk that innocent people will be executed.
The opponents do not have a solution for avoiding execution of the innocent. They offer a proposition (66) that does not fix any of the fundamental problems. In fact, it would actually provide less protection to innocent people. Also, according to the LAO, the pro-death proposition would cost an additional “tens of millions of dollars annually” for a number of years. The text of the proposition is ill thought out and probably unconstitutional. But, if it functioned at all, it would reduce the standards for appointment of counsel, reduce the protections against executing the innocent and, maybe, after a number of years and hundreds of millions of dollars, rush people to execution.
The director of the pro-death penalty organization wrote that, “The fear that California risks putting to death an innocent person is greatly overblown.” Yet, that fear is not “overblown” to the innocent person, that person’s family, or just about any other decent human being. The pro-death people cite “only” three cases of innocent people on California’s death row, but fail to acknowledge that 350 of the 746 people on California’s death row (the largest death row in the Western world) do not have lawyers to look into their innocence claims. And of those who do have lawyers, claims of innocence for most have not been heard.
The risk of executing innocent people is simply not acceptable in a civilized society. In 2002, Illinois exonerated 10 percent of their death row population, 17 people out of 171, largely by virtue of a project by journalism students. When the problem was studied further, it was acknowledged that there were probably others on death row who were innocent but who did not have access to exonerating evidence like re-testable DNA. In 2003, Illinois passed extensive criminal justice reforms to try to fix some of the 80-plus problems with their broken system. Despite reforms, the state repealed its death statue in 2011.
Dozens of the same problems that needed fixing in Illinois in 2002 also need fixing in California. An empirical follow-up study published by The Santa Barbara & Ventura Colleges of Law last month shows that, over the last fourteen years, California (unlike Illinois) has not fixed a single problem. The small effort made by the California Legislature was vetoed by Governor Schwarzenegger. Nothing else has been done to avoid wrongful convictions in California.
More disturbing is that the pro-death penalty people, without fixing any of these problems, propose to speed up the death penalty at the cost of tens of millions more dollars per year for several years. The proposition would lower the standards for lawyers representing people in post-conviction proceedings and would make conviction of the innocent all the more likely. The system remains broken and spending more money to speed it up without fixing it is not the answer. Proposition 62, by repealing the death penalty, on the other hand, would save $150 million per year, replace death with life in prison requiring work and restitution to victims and would end the specter of executing the innocent.
The remedy for Californians is to vote “Yes” on 62 and “No” on 66.
In addition to teaching at the Colleges of Law, Robert M. Sanger, senior partner in the firm Sanger, Swysen and Dunkle, has practiced in Santa Barbara since 1973. Mr. Sanger is a Certified Criminal Law Specialist certified by the State Bar Board of Legal Specialization. He is also a prolific author, publishing articles and book reviews in the American University Law Review, the Santa Clara Law Review, the American Bar Association Journal, The Federal Lawyer, The Champion, and the California Attorneys for Criminal Justice Forum. He is the author of a monthly column for the Santa Barbara lawyer magazine, Criminal Justice (2006 to present). Most recently, he authored an article titled, “Fourteen Years Later: The Capital Punishment System in California.” Mr. Sanger has been recognized for this death penalty work, including Death Penalty Focus Special Achievement Award in 2004. Los Angeles Times Opinion page, (September 29, 2016); The Editorial Staff of the Los Angeles Times has, however, endorsed “Yes on 62 and “no” on 66 vote. See, “Props 62 and 66: California voters should end the death penalty, not speed it up,” Los Angeles Times Editorial, (September 3, 2016).  Robert M. Sanger, “Comparison of the Illinois Commission on Capital Punishment with the Capital Punishment System in California,” 46 Santa Clara Law Review 101 (2003), SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2706798.  Robert M. Sanger, “Fourteen Years Later: The Capital Punishment System in California,” Special Law Report, Santa Barbara and Ventura Colleges of Law, (September 2016), SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2830677.  Judge William A. Fletcher, “Our Broken Death Penalty,” 89 N.Y.U. L. Rev. 805 (2014), http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3396&context=facpubs.  Paula Mitchell and Nancy Haydt, “California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives,” Special Report, Vol. 1, (July 20, 2016),