Ending California’s Machinery of Death

Prop 66 proponents claim their deeply flawed ballot initiative will turbo-charge California’s machinery of death by ensuring that all death penalty appeals are decided within five years.


You don’t need to be a constitutional law whiz to know Prop 66’s promised regime of five-year death penalty appeals is a sham; a basic civics lesson on our Constitution’s “separation of powers” doctrine (and our three separate but equal branches of government) will suffice. But, you don’t even need that. Just recall: In our country, one branch of government doesn’t have the constitutional authority to tell another branch how to do its job.

“It is emphatically the province and duty of the judicial department to say what the law is,” Supreme Court Chief Justice John Marshall famously declared in Marbury v. Madison, in 1803. With this historic ideal in mind, consider for a moment what’ll happen if Prop 66 becomes law.

Specifically, can you imagine what’ll happen when a particular conscientious state or federal judge (or set of judges) considering a death penalty appeal in California decides – for any one of a myriad of potentially meritorious reasons – that more time is needed to resolve the death penalty litigation in a particular case (than Prop 66’s completely arbitrary five-year deadline allows for)?

That’s right, follow your instinct, because it jibes with the law: By constitutional design, judges will always get to decide just how much time is needed to fairly and properly resolve a criminal appeal – not family members of crime victims, or a group of overly-aggressive prosecutors (whose support for the death penalty often hinges on political calculations more than anything else).

Being that they’re the most serious and complicated cases our legal system has, it should come as no surprise that death penalty appeals take a long time to resolve. It can take a whole year or more before the trial transcript of a capital case (sometimes spanning tens of thousands of pages, or more) is even ready for an appellate lawyer to review. Moreover, in postconviction or “habeas” cases, defense lawyers have a constitutional and ethical obligation (just as the “direct appeal” lawyers do) to not only scrutinize all the transcripts and trial exhibits looking for non-frivolous issues to appeal, but also, they are obligated to go outside of the record too; they must, often years after the crime, conduct a brand new investigation into the charges, the client’s background, and the trial and appellate proceedings. This requires extensive meetings with the condemned client, consulting (hiring, and collaborating with) specialized experts, tracking down old witnesses and jurors – and many other things that take time, lots of time – and money. And, all this is even before an appeal or post-conviction motion is filed, the state responds, and any subsequent proceedings and/or oral arguments are held.

The only surefire way to end the constant glut of death penalty appeals clogging our state court system is to put the final nail in capital punishment’s well-deserved coffin, forever replacing it with life without the possibility of parole as the most severe – but importantly, still humane – punishment California has.

Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.