Proposition 66 and the Problems it Presents

A lawsuit challenging the measure has already been filed, and criminal defense experts are predicting it will cost taxpayers additional millions of dollars, while exacerbating the problems inherent in an already broken system.

“Proposition 66 . . . is inoperable and unconstitutional for a variety of reasons . . . . The proponents attempted to simply make it easier to execute people by diminishing and eliminating aspects of existing law and constitutional safeguards that, even prior to the Act, were part of a flawed capital punishment system,” says Robert Sanger, criminal defense attorney (and DPF board member).

Proposition 66, the Death Penalty Reform and Savings Act of 2016, was passed by California voters in the November 8 election with 51.1 percent voting yes, 48.9 percent voting no.

The measure says it will speed up executions by requiring non-death penalty attorneys to take capital cases; requiring all state appeals to be completed within five years, and all habeas petitions to be filed within one year of appointment of counsel, instead of three.

Even if these proposals were workable, “The system is so far gone that these fixes would not result in either faster review or cost savings . . . . If there were 30 executions per year (a number that is more than double the number of executions in Texas in 2015), and 20 new death row inmates per year, there would still be 475 inmates on death row in 2040,” according to Paula Mitchell, who is The Executive Director of the Alarcón Advocacy Center as well as the
Legal Director of the Loyola Project for the Innocent at Loyola Law School.

Add to that the fact that the proposition will cost even more than the current system. The state Legislative Analyst’s Office estimates that Prop 66 will cost taxpayers tens of millions of dollars to administer. And attorneys Judy Clarke and Thomas H. Rice say that, “If experience is a guide, we are likely to have no greater rate of executions in the next 38 years, but will spend an additional $10 billion or more of taxpayer funds trying.”

Finally, the constitutional issues the measure raises are already being challenged. John Van de Kamp, former California Attorney General, and Ron Briggs, former advocate of the death penalty, both of whom supported Prop 62, have filed a lawsuit in state Supreme Court, asking for an order staying the enforcement of 66 until its “validity” is resolved.

“I think we have a very good case,” says Briggs. “You could throw away any one of the three main proposals [in Prop 66], and we’d still stand strong in challenging the other two. In fact, one is a deal killer, let alone all three.” 

“The best way to get a bad law repealed is to enforce it strictly,” Abraham Lincoln said. If there weren’t lives at stake, it would be interesting to see how soon Proposition 66 was repealed if opponents simply allowed it to go forward. However, this law, which passed by the slimmest of margins, is too destructive to go unchallenged.

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