California’s Competing Death Penalty Propositions: What Happens if Voters Approve Both?

By: Chelsea Brewer

On November 8th, California voters will be faced with competing propositions affecting the fate of the death penalty in the State. Both propositions operate on “the premise that the system is broken” and claim that justice will be best served if passed. However, the voters’ options regarding the death penalty’s future are in direct conflict with each other.

Approval of Proposition 62 would repeal the death penalty, replacing the most serious criminal penalty with life imprisonment without the possibility of parole. California currently has the most inmates on death row in the country with 748 inmates, and the ballot proposition would apply retroactively to those inmates. Conversely, Proposition 66 essentially accelerates the death penalty process by changing court procedures for death penalty appeals and imposing time limits. Under the current system, death penalty appeals are made directly to the California Supreme Court, and the appeals process takes approximately 25 years (as opposed to within five years if the proposition passes in November). As a result of the long appeals process, the State has not executed any death row inmates in a decade, “as legal challenges to lethal injection mean a de facto moratorium.”

California is among 17 states in the country that allow competing ballot initiatives, a precedent that began when the voters in the State passed conflicting propositions regarding campaign contributions in 1988. While Proposition 68 and Proposition 73 both passed, Proposition 73 received more affirmative votes than Proposition 68. Two years later, the California Supreme Court decided in Taxpayers to Limit Campaign Spending v. Fair Political Practices Commission (1990) that when voters pass conflicting measures, “the measure receiving the greatest number of affirmative votes supersedes the other.” The court’s decision noted that combining contradictory initiatives in a piecemeal fashion could ultimately yield a provision that the voters did not intend when casting their votes for both propositions.

Voter confusion is always a concern at the forefront with ballot initiatives, especially in California, where the voters are faced with 17 statewide ballot initiatives to understand and vote on in the November general election. The presence of competing propositions on the ballot is bound to add to that confusion, and a recent polling survey confirmed that concern specifically with regards to the contradictory death penalty provisions. The survey showed that “40% of the people who say they support ending the death penalty (which would be accomplished by Proposition 62) voted ‘yes’ on Proposition 66,” which would speed up the execution process. The initiatives propose directly conflicting outcomes, yet a significant portion of the voters polled indicate they would vote for both propositions. However, history indicates that when voters are faced with a laundry list of statewide provisions (on top of local measures on the ballot), they are often more likely to vote “no” or forgo voting at all. Therefore, the ultimate result will depend on voter turnout and how much the public has educated themselves on the 17 propositions—a record number of propositions on the ballot in the State since 2000.

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