February 18, 2021: Proposition 66 by Zaarin Mizan

Protestors hold a banner which says "No State Execution by Covid-19"
Protestors at San Quentin State Prison, 2020

Prop 66 “Death Penalty Procedures Initiative” / "The Death Penalty Reforms and Savings Act”

In 2016, California Proposition 62, a ballot measure to abolish the death penalty and replace the sentence with imprisonment for life without possibility of parole, failed to pass. The measure was rejected by a 52% vote during the general election of that November.(1) Instead, Proposition 66 was passed, an alternative measure to speed up capital trials and executions primarily by mandating that the habeas corpus petition process and appeals shall be completed within five years after the death sentence. The habeas corpus petition process is used to bring a prisoner or other detainee before the court to determine if the person's imprisonment or detention is lawful.(2)

Prop 66 was plagued with problems. Its promise of speedy trials and processes entail moving cases to lower courts, where cases would be seen in the slew of civil and criminal cases. Defendants would be paired with attorneys inexperienced with dealing with capital cases, lessening likelihood of overturned charges, and add overall errors, costs, and delays to both complex and more mundane cases. In 2017, the California Supreme Court ruled that the 5-year window of trials, appeals, and habeas corpus reviews were to be a guide, rather than a stringent rule, and implemented on a case-by-case basis, rendering the promises of the proposition more meaningless.(3)

The Supreme Court ruling was followed by a 2019 executive order issued by California Governor Gavin Newsom placing a moratorium on the death penalty in the state. Prop 66 seemed to be rendered largely obsolete. However, it continues to impact people sentenced to capital punishment in California. The Proposition specifies that people on death row are required to work with wages garnished for victim restitution. Further, it authorized the state to house death row inmates in any prison, rather than the one death row prison for men and one death row prison for women.(4)

Enter the COVID-19 pandemic. 

When the COVID-19 pandemic began to spread across the United States in March 2020, concerns were immediately raised in California and across the nation about the impact that the virus would have on people incarcerated. Prisons, jails, and detention centers in the U.S. are famously overcrowded.(5) The Centers for Disease Control and Prevention noted the following conditions as red flags for high risk of virus transmission: 

...crowded dormitories, shared lavatories, limited medical and isolation resources, daily entry and exit of staff members and visitors, continual introduction of newly incarcerated or detained persons, and transport of incarcerated or detained persons in multi person vehicles for court-related, medical, or security reasons.(6)

Despite the clear warnings of the havoc that coronavirus would wreak, little was done to address the conditions. Take San Quentin State Penitentiary in California.

Between the onset of the virus outbreak in March 2020 to August 2020, infections and deaths soared in prisons. San Quentin reported a near 950% increase in cases that resulted after failure to follow UC Berkeley and UC San Francisco's warnings to reduce its inmate population by 50%. (7) Requests for aid such as personal protective equipment (PPE) like masks and gloves and basic medicines for inmates were denied. Even calls for implementing social distancing protocol and temperature checks were largely dismissed.

While executions have not been taken place in California since 2006, even prior to the 2019 moratorium, deaths of condemned inmates have continued due to sickness, old age, suicide, and now COVID-19. Facing death sentences coupled with lengthy delays in trials and holds is regarded as the “cruel and unusual punishment” that Proposition 66 had aimed to avoid. 

What does this have to do with Prop 66? When prisoners filed a lawsuit against the state as a result of the failed response to the pandemic, the two parts of the Proposition that remain intact suddenly emerged as an ostensible solution to the problems laid bare by the prison’s inadequate COVID-19 response. The state’s First Appellate Court ruled that San Quentin’s population had to be reduced by half, amounting to about 1,700 prisoners.(8) Activists and public defenders alike called for the release of inmates in order to reduce the prison population and avoid the spread of the COVID-19. Instead, the prison chose to implement a transfer program which not only fails to address the conditions that cause rampant contagion of disease but further contributes to its spread throughout the state’s 34 prisons.

The California Department of Corrections and Rehab (CDCR) have begun a pilot program for Prop 66 where 700 inmates may apply to be taken off of death row.(9) Upon eligibility and consideration of risk factors, the inmate could be transferred to other high-security prisons, housed with non-death row inmates, with the possibility of entering a rehabilitation program. This program however would not lift death sentences. The intention of this program is to allow the inmates some more “freedom” off death row and come back into interactions with non-condemned inmates in a less restricted space. 

As the third largest prison in the country, San Quentin has had 2,239 cases of COVID-19 infection and 28 deaths with numbers continuing to rise. Prisons throughout California and the country fail to follow adequate hygiene and social distancing practices. Bunk beds, weekly shower permits, inconsistent testings, and faulty equipment will not be changed by transferring inmates. The move will not change the lack of health care provisions and considerations to inmates with predisposed health ailments or disabilities. In lieu of addressing issues of prison mismanagement, abuse, and wrongful sentencing, prisons have chosen instead to temporarily displace the issues. Prop 66 therefore grants the state and lower courts the appearance of taking action by moving prisoners around under the guise of “reducing” the numbers. 

Transferring inmates in lieu of release would continue to spread infections as well as increase and perpetuate social, racial, gang-related violence in other California prisons, creating more internal unrest.(10)

With the inundation of media portrayals of prison and incessant  news about  crime, we have become all too desensitized to the fact that prisoners, whether having committed a crime or not, are still humans who need basic needs met. It is important to remember the importance of social interaction for someone’s mental health during a time of quarantine when considering the experience of  people in prisons like San Quentin, suffering silently and painfully in their cramped cell in isolation, yearning for a 30-minute phone call or a letter from a loved one. If transferred, prisoners are not only put at greater risk of contracting and spreading infection, but can easily get lost in the papers and systems, making that communication with lawyers, family, and loved ones all the more impossible. Inmate transfers are one example of the isolating conditions of prisons that cultivate trauma, mental health issues, and physical illness. Isolation and separation do not prevent crime. Transferring inmates will not promote reintegration into society or prevent recidivism.(11)

As of December 2020, the transfers for San Quentin have been put on an indefinite pause after 26 inmates were transferred out following a critique from Governor Newsom's that the transfers violate California stay-at-home orders.(12) Attorneys and activists have continued pushing petitions to the Governor for inmate release instead of transfer and prolonged confinement. 

Death Penalty Updates: 
Feb. 3 & Feb. 5: Virginia Democratic Senate and House of Delegates (respectively) votes to abolish the death penalty, which would make it the first Southern state to do so. 

1. https://www.latimes.com/opinion/story/2020-07-13/prop-66-promised-to-speed-up-executions-abolish-the-practice
2. https://www.law.cornell.edu/wex/habeas_corpus#:~:text=A%20writ%20of%20habeas%20corpus,holds%20the%20defendant%20in%20custody
3. https://www.sacbee.com/opinion/california-forum/article170028282.html
4. https://ballotpedia.org/California_Proposition_66,_Death_Penalty_Procedures_(2016)
5. https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm
6. https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm
7. https://www.worldometers.info/world-population/population-by-country/
8. https://www.nytimes.com/2020/10/21/us/san-quentin-prison-coronavirus.html
9. https://www.safecalifornia.org/over-700-inmates-will-become-eligible-to-move-off-of-death-row/#:~:text=The%20pilot%20program%20lasts%20for,small%20amount%20for%20their%20work
10. https://www.nytimes.com/2020/10/21/us/san-quentin-prison-coronavirus.html
11. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7302764/
12. https://www.sfchronicle.com/bayarea/article/San-Quentin-Prison-COVID-releases-delayed-by-15837153.php