Death Penalty

Two propositions appear on the ballot this November to address the death

penalty in California. Prop 62 seeks to repeal the death penalty and replace it

with life in prison, applying retroactively to all death penalty sentences. Prop 66

seeks to modify death penalty procedure by limiting successive appeals,

increasing the pool of attorneys available to take appeals, and exempting prison

officials from certain regulations pertaining to execution methods .

There is much to consider in these propositions and compelling arguments for

both sides. California has sentenced more than nine hundred criminals to death

since the reinstatement of the death penalty in 1978, yet only thirteen have been

executed. The last execution carried out in the state was more than ten years ago,

just before a federal judge halted all executions and required California to revise

its lethal injection procedure, which still has not happened. Some folks want to

convert all death sentences to life imprisonment and save the state “$150 million

annually within a few years,” other folks want to clear out the backlog and enter

into an “unknown fiscal impact” on the state (fiscal impacts on both

propositions are stated in the official CA voter guide). While this was originally

meant to be an article in support of Prop 62, Jackson Browne—2004 Rock and

Roll Hall of Fame inductee and California native—was unfortunately unable to

get back with me for an interview before production deadline, so we are going to

swing this another way.

These propositions are what the Golden State calls “incompatible propositions.”

What this means, quite obviously, is that they can’t both be enacted into law.

However, there are some technical factors that must be understood to see how

this all works. Article Ten of the California Constitution provides that a ballot

initiative requires a simple majority to pass—easy enough. But when you have

incompatible propositions and both pass, the one that receives the highest

number of “yes” votes between the two will be the proposition enacted into law.

Seems fair, right? Well, not to me.

I look at it this way: one initiative seeks to prohibit a currently legal practice, the

other seeks to modify the practice. If more Californians vote ‘yes’ than vote ‘no’

to prohibit the practice, shouldn’t the question of modifying the practice be

dismissed entirely? A sort of hierarchal ballot, if you will?

You may say absolutely not. Ballot initiatives are the clearest form of direct

democracy, and if both have reached the ballot, both should have their fair shot.

But to the naysayers I say that this sort of conflicting bureaucratic measure

against a clear­cut prohibitive measure unfairly tilts the scale against the clear­cut


Imagine that the voting population consists of one hundred voters. Sixty support

the clear­cut measure, forty support the bureaucratic measure. Few if any of the

voters are aware of the incompatible proposition rule (it is certainly not spelled

out on the ballot). Forty out of forty will be adamantly opposed to the

prohibitive measure because they want to mend, not end. But of the sixty in

support of the clear­cut measure, some may also vote in support of the

bureaucratic measure on the premise that, if their preferred measure does not

pass, some reform is better than none at all.

And this is precisely what many argue the Prop 66 movement set out to capitalize

on. Very few Californians would argue that the capital punishment system in

California is a well­functioning machine. But most Californians do not see eye to

eye on whether we should maintain eye for an eye. I contend that the

bureaucratic underdog known as Prop 66 exploits these self­evident truths and

the ignorance of the voting populace to encourage Prop 62 voters to also vote yes

on Prop 66. This sort of practice is manipulative of voters’ true intent.

In this case, we have a straightforward situation of repeal versus modify, which

makes an argument for a hierarchal ballot pretty easy. But not all incompatible

propositions are so straightforward—just consider the two local measures offering

different means of providing for a Chargers stadium. They want the same

outcome, just by paving different paths. So what is the catch­all solution to

incompatible propositions? I say the answer is as simple as an extra bubble on the

ballot. We’ve got Yes, we’ve got No, let’s add: Yes if the other is a no­go.

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