Prop 62 advocates say:
“Mistakes are inevitable and can’t be undone. DNA technology and new evidence have proven the innocence of more than 150 people on death row around the country.”
Prop 66 advocates say:
Are there sufficient protections in place to make certain an innocent person is not executed?
Yes. There is no evidence that the state of California has ever executed an innocent person. This was confirmed by the Alarcón/Mitchell study of 2012, which conducted an extensive examination of the use of the death penalty in California over the past several decades. The findings of that study were:
“California has approached the implementation of its death penalty system with caution and, as a result, no evidence has been presented that the prosecution of persons accused of capital crimes has resulted in the execution of someone who was innocent.”
There is always a risk of executing an innocent person. The Death Penalty Information Center maintains a list of individuals sentenced to death who are later exonerated, which currently lists 156 people including 3 from California (see below).
The risk of executing an innocent person has also been documented in other states. For a list of people executed despite strong evidence suggesting innocence, see executed-possibly-innocent
California may have already executed an innocent person. Substantial evidence has been cited to suggest that Thomas Thompson, executed in 1998, may have been innocent. The 9th Circuit Court of Appeals overturned Thompson’s conviction, but were overruled by the U.S. Supreme Court on procedural grounds based on a missed deadline. For more, see the LA Times editorial, California has executed 13 men since reviving the death penalty. Was one of them innocent?, and Judge Stephen Reinhardt’s law review article, The Anatomy of An Execution: Fairness versus “Process.”
Several inmates on California’s death row have currently pending claims of actual innocence. For example, numerous federal judges have expressed doubt regarding the conviction of Kevin Cooper.
Proposition 62’s solution to the problem of innocent people on death row is to replace the death penalty with life in prison without parole, removing the risk of executing an innocent person.
Proposition 66 includes provisions intended to protect an innocent person sentenced to death, but, according to Barry Scheck, co-founder of the national Innocence Project, “its poorly written provisions will increase the risk of executing the innocent.” Prop 66 advocates tout the procedural safeguards present in the current capital appeals process as reason to believe innocent people will not be executed in California. Prop 66, however, would significantly alter that process and, in so doing, would remove existing protections.
Prop 66 requires appeals lawyers to undertake capital cases if they wish to continue handling other criminal appeals, whether or not they are willing and qualified to handle capital cases. Some who are qualified have refused to accept appointments in capital cases because the current compensation for their services and the resources currently available to retain investigators and experts is insufficient for them to properly prepare and present a capital case. Under Prop 66, the state court appeal must be filed within one year of the attorney being appointed, and must be resolved within five years. In many of the cases of innocence documented by DPIC, evidence of police and prosecutorial misconduct that led to wrongful convictions and death sentences, and exculpatory evidence affirmatively establishing a death row prisoner’s innocence was discovered far more than five years after the conviction or appointment of appellate counsel. The short investigation and pleading deadlines and the deadlines for deciding capital cases place arbitrary limits on when evidence of innocence may be presented to and considered by the courts. And the appointment of unqualified or unwilling lawyers with inadequate time and resources to investigate and develop evidence of innocence or uncover evidence of potential police or prosecutorial misconduct further increases the risk that death row prisoners will be unable to meaningfully develop and present their claims of innocence to the court, that exculpatory evidence wrongfully suppressed by the prosecution will remain undiscovered, and that police or prosecutorial misconduct that led to wrongful convictions and death sentences will remain undetected.
Prop 66 also creates new court rules that make it more harder for a death row prisoner to obtain judicial review of an innocence claims after the artificial deadlines imposed by the proposition. For a claim of innocence to be pursued after those deadlines, Prop 66 requires the court to prejudge the merits of the evidence and determine that the prisoner is likely to be innocent. Prop 66 creates a new standard for this, requiring the judge to weigh all evidence—including evidence that may not be admissible in court—and determine if the inmate is innocent by a “preponderance of the evidence” (more likely than not). Only if the prisoner persuades the judge that he or she is “likely” innocent may the judge entertain appeals after the now-shortened deadline, or after the first appeal has been decided. This standard replaces the existing appeal process, in which a judge can dismiss a claim of actual innocence only after hearing the claim. This provision also substantially decreases the protections currently in place to safeguard against the execution of an innocent person.
For more information about innocence and the death penalty, see: Innocence and Death Penalty.
California’s Death Row Exonerees:
Ernest (Shujaa) Graham California Conviction: 1976, Acquitted: 1981
In November 1973, while incarcerated in a state prison facility, Ernest Graham and co-defendant Eugene Allen were charged with killing a state correctional officer. Graham’s first trial resulted in a mistrial when the jury could not agree on a verdict. Graham was sentenced to death in 1976 after his second trial. The Supreme Court of California reversed the conviction because prosecutors improperly used their peremptory challenges to exclude prospective jurors who were black. Graham’s third trial ended in another hung jury, and he was acquitted by the jury in his fourth trial. (Phone conversation with now Magistrate-Judge James Larson, October 6, 2003, who represented Graham).
Troy Lee Jones California Conviction: 1982, Charges Dismissed: 1996
The California Supreme Court ruled in June 1996 that Jones should have a new trial because he was not adequately defended at his original trial for the murder of Carolyn Grayson in 1981 (In re Troy Lee Jones on Habeas Corpus, 917 P.2d 1175 (1996)). The Court found that the defense attorney failed to conduct an adequate pretrial investigation, speak with possible witnesses, obtain a relevant police report, or seek pretrial investigative funds. Moreover, the attorney elicited damaging testimony against his own client during cross examination of a witness. The prosecution announced that it was dropping all charges against Jones in November 1996, after he had been on death row for 14 years. (Associated Press, 11/19/96).
Read “California Death Sentence…” by Dan Goodin in The Recorder
Oscar Lee Morris California Conviction: 1983, Charges Dismissed: 2000
Morris was convicted in 1983 and sentenced to death. His death sentence was vacated by the California Supreme Court in 1988. Although the court did not overturn his conviction, it later ordered an evidentiary hearing when the state’s chief witness against Morris issued a deathbed recantation. After the evidentiary hearing, the Los Angeles County Superior Court granted Morris a new trial. Prosecutors decided not to retry the case and Morris was freed in 2000. (L.A. Daily Journal, October 29, 2002).
Additional former death row inmates in California
Three other former death row inmates were acquitted of the charges for which they were sentenced to death, however they are not included in DPIC’s innocence database because of other non-capital charges. Lee Farmer, Patrick Croy, and Jerry Bigelow were each convicted and sentenced to death, and later had their convictions overturned. Read more in the San Francisco Chronicle article.