When California voters head to the polls in November, they’ll be asked to vote on two separate ballot initiatives seeking to reform the death penalty.
Both initiatives are based on the premise that the system is broken. Both would require convicts to work while behind bars, both would use convicts’ wages to pay an increased restitution to victims, and both say justice must be served.
The difference? Proposition 66 aims to accelerate the death penalty process by removing certain legal safeguards, reviving state executions after a decade-long hiatus.
The other, Proposition 62, would shut down executions in California entirely.
And if voters pass both dueling measures, it will simply come down to which received more “yes” votes.
“There’s always confusion on everything relating to the death penalty, and it’s absolutely adding confusion that we have these two competing measures.”
Conflicting initiatives like these two aren’t uncharted territory. According to Ballotpedia, 17 states allow conflicting initiatives on the ballot. Washington has faced conflicting gun initiatives, and Ohio saw competing marijuana legalization and anti-monopoly amendments on last year’s ballot. In California, the precedent was set in 1988 after voters passed opposing measures to regulate campaign contributions.
In November, a win for either initiative would transform the state’s death penalty system, currently at a standstill: 748 inmates sit on death row, yet no executions have taken place since 2006, as legal challenges to lethal injection mean a de facto moratorium.
Since the penalty was reinstituted nearly four decades ago, the state has executed 13 offenders. Each took place an average of 17.5 years after the original crime was committed, according to the L.A. Times.
— DeathPenaltyReform (@Noon62Yeson66) October 13, 2016
— DeathPenaltyReform (@Noon62Yeson66) October 19, 2016
Death penalty supporters say they can “mend” the sluggish pace of justice, primarily by limiting appeals to five years after the death sentence is issued.
Under Prop. 66, condemned inmates’ habeus corpus petitions would first be heard in trial courts by the original trial’s judge, rather than by the California Supreme Court. It would also require non-death penalty attorneys to take on death penalty appeals.
Advocates say these changes could reduce the time from conviction to execution from as long as 30 years to less than half that.
But as California ACLU and the state’s Democratic and Libertarian parties argue, these barriers to execution are critical to the criminal justice system. When one in 10 California death sentences is overturned, checks and balance are imperative.
“‘Mending’ the death penalty is a failed promise,” says Ana Zamora, ACLU North California’s criminal justice policy analyst and campaign manager for No on Prop. 66. (Their partner, Death Penalty Focus, is leading the campaign for Prop. 62.) “When voters hear that Proposition 66 has been modeled after the laws in Texas, where innocent people have been executed, they move against the measure.”
Prop. 66 was introduced by a pro-death penalty group and pushed through by law enforcement groups, largely Republican officials, and the families of rape, murder, and torture victims.
But Santa Clara University law professor Gerald Uelmen told the L.A. Times the proposal “doesn’t address the causes of the delay” in the death penalty process: there are simply too many crimes that can warrant capital punishment.
“We end up with too many cases — more than the system can handle — coming in the door every year,” he said.
— Yes On 62 (@yeson62) October 14, 2016
— Yes On 62 (@yeson62) October 14, 2016
Prop. 62’s proponents, including Silicon Valley entrepreneurs and former President Jimmy Carter, say the state is better off replacing the death penalty with life without parole. Prop. 62 would commute the sentences of the state’s condemned offenders.
The independent Legislative Analyst’s Office estimates Proposition 62 could reduce state expenses by $150 million every year.
Zamora says she thinks it’s unlikely voters would say yes on both Prop. 62 and 66. Nor does she think voters would confuse the two initiatives.
“But we won’t know what happens until Election Day,” she said. After all, back in 2012, 52 percent of California voters rejected a measure to repeal death penalty, defying a late surge in the polls.
“There’s always confusion on everything relating to the death penalty, and it’s absolutely adding confusion that we have these two competing measures,” Zamora said.
But the campaign is certain voters frustrated with the death penalty’s defects will realize it’s not worth saving.
Indeed, a survey by UC Berkeley’s Field Poll and the Institute of Governmental Studies found 48 percent of likely voters said they would vote “Yes” on the measure to repeal the death penalty. About 37 percent opposed it, and another 15 percent were undecided.
But Field Poll warns that when voter support for a controversial ballot measure remains below 50 percent, its passage is uncertain even when it leads the polls —just as California saw in 2012.
Though Prop. 66 is less popular —35 percent supported it, and 42 percent was undecided — the pro-death penalty campaign is certain the tables will turn once more.
“We feel confident Californians support the policy of the death penalty,” Anne Marie Schubert, Sacramento County District Attorney, told ThinkProgress. “Polling and history tells us that.”