by Sheila Kuehl
October 23, 2012
This is the sixth in a series of essays analyzing the Propositions appearing on California's November ballot. This essay analyzes Prop 34, which would abolish the death penalty in California in all cases and, for those crimes that would have drawn the death penalty, substitute a sentence of life imprisonment without possibility of parole. The proposition would also apply retroactively to those now under a sentence of death in California.
The first essay in this series explained Proposition 30. The second presented the competing tax measure, Prop 38, and indicated possible outcomes, should both Prop 30 and 38 pass. The third analyzed the many proposals contained in Prop 31. The fourth discussed the anti-union agenda of Prop 32. The fifth presented the Mercury Insurance initiative allowing companies to penalize auto policy holders who have not had continuous auto insurance coverage. The next essays will present and analyze each of the remaining propositions.
Murder, Homicide and Degrees of Culpability
California, like most states, identifies various "degrees" of murder in its Penal Code, and makes, as Gilbert and Sullivan put it, "the punishment fit the crime, the punishment fit the crime." The most serious form of homicide is labeled murder in the "first degree", and generally encompasses murders that are deliberate and premeditated, or that happens in conjunction with other serious crimes, such as kidnapping. First degree murder is punishable by 25 years in prison or more, and prisoners may request a parole hearing after they have served for 25 years.
The death penalty may not be imposed on every person convicted of murder in the first degree, but is reserved for defendants convicted of murder with "special circumstances". These are considered the most egregious first degree murders and are defined in a number of ways in statute, including murders which are particularly cruel, or a murder carried out for financial gain, among others.
The Death Penalty is Imposed in a Second Hearing, After Conviction
In California, the first phase of a murder trial is held to determine the guilt of the person accused and whether the murder committed included any of the special circumstances outlined in statute. Once guilt has been determined, a second phase of the trial is held in which the jury decides whether or not to impose the death penalty.
Death Penalty Cases in California
One of the interesting aspects of the discussion on this initiative, and one that distinguishes it from other years in which the death penalty was considered by the voters, concerns a stronger focus on the cost of maintaining prisoners who have been sentenced to death and who are exhausting their legal options, which are many.
A sentence of death in California is automatically appealed to the California Supreme Court. In that court, attorneys for the convicted person argue improprieties in the trial, such as violations of state or federal law in the gathering of evidence. If the CA Supreme Court affirms the conviction, this decision may be appealed to the United States Supreme Court.
Generally, the availability of these appeals affirms the serious nature of the taking of a life by a government, heightening the necessity for legal protections. In addition, petitioners can file writs of habeas corpus, ancient writs that raise questions about activities in the process of the trial, but outside the legal issues of the trial, such as ineffectiveness of counsel. Those under sentence of death may also appeal directly to the Governor for reprieve.
The ability to appeal and challenge a death sentence has generally meant that prisoners condemned to death spend decades on death row. Since 1978, when the current death penalty law was enacted, about 900 people have been sentenced to death. Fourteen have been executed, eighty-three have died in prison, and seventy-five have had their sentences reduced by the courts.
Prop 34, Ends the Death Penalty and Funds Law Enforcement and DAs
With the passage of Prop 34, no prisoner could be sentenced to death in California. Those now under sentence of death would have their sentence changed to life without possibility of parole (LWOP), which would also be the sentence for defendants charged after the passage of the initiative, who previously might have been sentenced to death.
All prisoners would be required to work while in prison and, if they have been ordered to pay restitution, would have their prison earnings go for that purpose. A new fund would be established, called the SAFE California fund for grants to law enforcement and district attorneys to increase the rate at which they solve murder and rape cases.
Interestingly enough, this time around, the money aspects seem to trump humanitarian motives in messaging. This could be appropriate in a time of austerity, as the imposition or even the possibility of the death penalty adds layers to the process that cost money in multiple ways.
The Legislative Counsel's Office estimates some pretty hefty savings should this measure pass. First of all, murder trials that carry the death penalty tend to be longer and more expensive, including the separate phase required to determine the appropriateness of the death penalty, investigations related to the prisoners' backgrounds, extra attorneys, etc. In addition, county jails are required to house the defendants during trial. The costs of both of these aspects would be reduced, leading to savings.
Savings are also projected for appellate courts, since there would not be automatic appeals of every sentence. State prison costs would also see changes, according to the Leg Analyst. Although prisoners would now be serving life sentences, thus potentially raising the overall costs per prisoner, the additional costs might be slight, given the current long stays of most death penalty prisoners. In addition, death row inmates cost more because of security and isolation.
The measure also requires a transfer of $100 million a year, each year from 2012-13 to 2015-16, from the general fund to the new SAFE fund for heightened investigation and prosecution of murder and rape cases. The Leg Analyst projects a savings to the state of 100-130 million a year in prison, jail and trial costs.
Finally, Potential Consequences to LWOP Prisoners
There has been little speculation about the impact of this measure on prisoners beyond the fact that they would be allowed to live, rather than die, in prison. Interestingly, however, this measure comes at the same time as a growing interest in the effects of solitary confinement in small, windowless, cells, on prisoners in state prisons. Given the possibility of increased use of solitary, along with the eradication of judicial scrutiny, appellate interest, and attorney support, for these prisoners, there is some possibility of a new sort of humanistic problem for prisoners.
Next: Prop 35, Punishment for Human Trafficking