Proposition 66, titled the Death Penalty Reform and Savings Act, which passed by a slim majority in California in 2016, is a deeply flawed initiative that seeks to speed up the death penalty by eliminating many of the legal safeguards that ensure the fairness of the criminal justice process and prevent wrongful executions.

DPF Board Member Nancy Haydt, a criminal defense lawyer who represents capital clients in trial and on habeas corpus, and is the former co-chair of the Death Penalty Committee of California Attorneys for Criminal Justice, has analyzed 66 in the two main areas most affected by it: the capital habeas corpus procedure and the superior courts.

“The California Constitution requires the California Supreme Court to review the issues raised on direct appeal, which challenges legal proceedings up to and through the trial and sentencing, and file a written opinion on each,” Haydt says. Until now, the Supreme Court also ruled on capital habeas corpus petitions. However, when Prop 66 became law, that changed.

Until now, when a defendant was convicted and sentenced to death, the Supreme Court qualified and appointed habeas corpus counsel. Due to the lack of qualified counsel, that could take years. In fact, today, there are hundreds of death row inmates who are unrepresented. With Prop 66, habeas corpus proceedings in death penalty cases are heard by the the superior court judge who presided over the original trial and issued the death sentence. The trial court judge now selects and appoints counsel to investigate and prepare a habeas corpus petition, which must be filed in superior court within a one-year timeframe.

According to Haydt, the proposition also relaxes the eligibility requirements for attorneys handling habeas corpus appeals, allowing attorneys with limited capital case experience to be appointed. Before, the California Supreme Court appointed experienced habeas corpus attorneys from the Habeas Corpus Resource Center, the California Appellate Project, the Office of the State Public Defender, or private counsel who met Supreme Court standards. Now, local courts, in conjunction with regional appellate projects are required “to develop a plan to recruit, qualify, and train a local pool of attorneys to represent capital habeas corpus petitioners,” and “may appoint attorneys from the regional pool, or any attorney that the superior court has determined to be qualified.” And while the new rules specify minimum qualifications for appointment, Haydt points out that, “There is an opt-out clause which allows a superior court judge to appoint any attorney they determine to be qualified.” Also, “with Prop 66, there is the real possibility that an attorney may be appointed for capital habeas corpus defense who has no actual experience representing a criminal defendant.” (Think about that. An attorney who has never tried a criminal case can be appointed to represent a client who has been sentenced to death. It would be tantamount to appointing a dermatologist to perform brain surgery.) Even more troubling, an attorney who has spent years as a prosecutor may be appointed to represent a prisoner on habeas corpus.

In addition, while “The national standard for appointment of counsel in death penalty cases requires appointment of two or more counsel for any capital case … the [new] rules treat this requirement as merely aspirational,” according to Haydt.

So, under Prop 66, in just one of the two major changes to the existing system, an attorney representing a death sentenced client has only one year to file a habeas corpus petition, will not be required to have experience in death penalty cases, and may be the only lawyer on the case. These changes alone make it difficult to see how this will result in speeding up the process, and will most likely slow it down in light of the probability of legal challenges.

Haydt’s full analysis can be found here. Next month, she’ll discuss the impact 66 will have on superior courts and counties.

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