While Proposition 62, which would outlaw the death penalty in California, has received the most attention in the run-up to next week’s election, a competing measure aimed at speeding up executions is being championed by Orange County District Attorney Tony Rackauckas and other top prosecutors.
There now are 749 inmates on death row in the Bay Area’s San Quentin State Prison. But the state’s last execution was in 2006, and only 13 inmates have been executed since the death penalty was reinstated in 1978.
Since then, California has spent $4 billion on capital punishment, equating to $308 million for each execution, according to a study by the Alarcón Advocacy Center at Loyola University Law School in Los Angeles, which advocates on behalf of criminal defendants.
Rackauckas and other proponents of the death penalty say their measure, Proposition 66, will fix a broken death penalty appeals system that has led to this massive waste of taxpayer dollars.
Among other things, the measure would limit the length of certain death penalty appeals [habeas corpus] to five years, and expand the pool of lawyers available to handle the appeals of defendants.
The largest donation from an individual person — $200,000 — came from another high-profile Orange County figure — Henry T. Nicholas III, a co-founder of the Irvine-based chip maker Broadcom Ltd., state records say. Nicholas, whose sister was murdered in 1983 by her ex-boyfriend, is one of the state’s leading victims’ rights advocates.
“California citizens believe that in the appropriate circumstances the death penalty is the right punishment. We only seek it in 1 percent of eligible cases (about 20 per year) — for the worst of the worst,” said Mike Ramos, San Bernardino County’s DA, who co-chaired the drive.
Rackauckas’ office did not respond to a request for comment.
Opponents Cite Jailhouse Snitch Cases
Death penalty opponents, meanwhile, see Prop. 66 as the latest version of a misguided plan that actually would make appeals longer, increase costs and possibly lead to executing an innocent person.
And they point to Rackauckas’ handling of the two death penalty cases at the center of the county’s years-long jailhouse snitch scandal as “poster children” examples of why not to enact the measure.
“The whole initiative is a big mistake,” said Nancy Haydt, a Ventura defense attorney who in July co-authored a report on the competing initiatives for the Alarcón Center. “Absolutely, the Orange County cases show why.”
In 2011, Scott Evans Dekraai committed Orange County’s largest-ever mass murder when he walked into a Seal Beach beauty salon and gunned down his ex-wife and seven others. The previous year, Daniel Patrick Wozniak murdered and decapitated his neighbor and then killed his neighbor’s girlfriend in an attempted coverup.
Despite overwhelming evidence and confessions, law enforcement used jail informants improperly against both defendants, prompting years of delays.
Both defendants were represented by a county public defender, Scott Sanders — whose probing uncovered a secret county jail informant network; so far, discovered irregularities have affected 15 other cases.
In the case of Dekraai, who pleaded guilty in 2014, legal offenses were such that Superior Court Thomas M. Goethals in 2015 barred Rackauckas’ team from continuing to prosecute the death penalty trial phase. A decision is expected in 90 days on an appeal.
In Wozniak’s case, sheriff’s deputies also used jail informants, but the judge barred such evidence, issuing a death sentence on Sept. 23 — making him the 64th inmate on death row from Orange County.
“The death penalty is not functional in this state because there are counties like this one, where it can take decades and astounding luck to have any chance of finding withheld evidence,” Sanders said.
Prosecutors in the Dekraai and Wozniak cases contend evidence irregularities weren’t intentional, and/or were the result of poor training for the sheriff’s deputies who run the jails.
The Cost of Condemned Inmates
The California Legislative Analyst’s Office says the complexity of Prop. 66 makes the initiative’s costs “unknown.”
Given the case backlog, the independent agency noted “costs could be in the tens of millions annually for many years.”
If voters approve Prop. 62 and the death penalty is abolished, the state and counties would save a total of about $150 million annually in criminal justice costs, according to the Legislative Analyst.
In 1998, Colorado’s legislature, enacted a similar death penalty speed-up plan — called the unified appeal — reducing post-trial investigations and habeas appeals. But 18 years later, it remains mired in controversy, with increased costs and legal challenges, say defense attorneys, who fear the same under Prop. 66.
“The unified appeal plan in Colorado is a disaster,” said Haydt, who assisted on an initial Colorado case.
Kent S. Scheidegger, one of Prop 66’s authors and legal director for the Criminal Justice Legal Foundation, a pro-death penalty institute in Sacramento, said he is confident Prop. 66 stipulations can be equitably and efficiently applied — noting that a number of the key provisions are based on federal criminal law.
Of inmates on death row, 274 had their sentences affirmed by state courts, with many then appealed to federal court, according the Alarcón study. And there are 463 cases on appeal in state courts, the study says, noting 10 have been reversed.
If Prop. 66 is to pass, Scheidegger said that courts might select “fresh” sentenced cases among the 463 to apply initiative provisions — such as directing habeas appeals to the case trial judge.
Objecting to such habeas reviews, Sanders added: “Quite obviously, not in cases where the defense has argued that the trial judge should be recused.” Sanders unsuccessfully sought to have Wozniak’s sentencing judge recused.
One of the challenging issues associated with Prop. 66 involves counties hiring defense attorneys for the habeas appeals — since there are only about 100 lawyers statewide qualified for such representation, according to the California Appellate Project, a non-profit legal group in San Francisco.
For Orange County, initial defense attorney costs would be $11.1 million under Prop. 66, according to Haydt’s research.
County spokeswoman Jean Pasco said there has been no analysis of Prop. 66‘s potential costs.
Ramos, the San Bernardino DA, said the costs are reasonable.
“Absolutely, our county would support” paying for the estimated $8.1 million for San Bernardino, he said. “We knew reform costs would be up there. They should have attorneys.”
Another Prop. 66 provision that worries its opponents are the limits it places on the time periods for investigations of potential trial irregularities, and for filing habeas appellate petitions.
Sentenced inmates would have one year from the appointment of an appellate attorney to complete any investigation, under Prop. 66.
“Considering what we’ve learned in Orange County,” Sanders said, “It is inhumane that defendants would have essentially one year to find evidence that is still being uncovered decades after conviction.”
Scheidegger disputes such assertions.
“Any claim the one-year limit is unconstitutional is frivolous,” he said, noting that Texas — which executes the most inmates in America — has a six-month limit to such investigations.
In the case of habeas petitions, Prop. 66 would limit such appeals to within five years of the date of a death sentence. Although, the initiative provides for exceptions, regarding evidence of innocence.
California’s other parallel appellate process — where a death penalty sentence automatically goes directly to the state Supreme Court — would continue under Prop. 66.
To seasoned habeas attorneys, like Tarik S. Adlai of Pasadena, Prop. 66 wouldn’t provide sufficient appellate time, like in a case he now has on appeal from the Orange County informant scandal.
“Some prosecutors are not interested in the truth,” said Adlai. “Their position is affirm and defend the conviction.”
Responding to such criticism, Ramos said: “I tell attorneys we hire as prosecutors that the strongest part of our case isn’t the filings, it is our ethics and integrity. I think we have a fair justice system people are comfortable with.”
Rex Dalton can be reached directly at firstname.lastname@example.org.