On November 8, 2016, California voters cast ballots on two competing initiatives aimed at reforming the state’s death penalty system. California’s death row is home to more than 740 individuals, but the state has carried out only 13 executions in the past 40 years. The first initiative, Proposition 62, sought to repeal the death penalty and commute all existing sentences to life in prison without parole. The second, Proposition 66, was designed as a counter-measure to the abolition bill and was promoted under the tagline “Mend, don’t end, California’s death penalty.” Current vote tallies show Prop 66 passing with slightly more than 51% of the vote, while Prop 62 is failing, with only 46.8% of voters supporting the initiative.
With the apparent passage of Prop 66, attorneys and judges are quickly working to assess the new law’s impact. Among other things, Prop 66 requires state courts to finalize review of capital sentences within five years; transfers state capital habeas corpus petitions from the California Supreme Court to the superior court that initially heard the case; restricts the grounds upon which death sentences can be appealed; requires all appellate attorneys, including those without capital experience or training, to accept capital cases; and exempts California’s Department of Corrections from review under the state Administrative Procedure Act. The day after the election, a lawsuit challenging the measure was filed by Orrick LLP on behalf of a group of California taxpayers. The suit alleges that the bill’s removal of habeas jurisdiction from the state supreme court and limitations on review of capital cases violates the state’s constitution. The challenge also sought an immediate injunction to prevent enforcement of Prop 66. The California Supreme Court denied the request for a stay as unripe because the election results have not yet been certified, but plaintiffs are expected to renew the request when the results are final.