California's Prop. 66 will increase the risk of executing the innocent

The following opinion by Van Jones was published by The Orange County Register on September 18, 2016.

Philando Castile. Eric Garner. Alton Sterling. It goes on and on. Terrifying displays of violence against innocent black men and communities of color are fueling national attention on racial inequality across the country. The criminal justice system, in particular, demonstrates these inequalities.

While disparate treatment by police has garnered the most attention, racial inequalities exist at every stage of the criminal justice process — all the way to the ultimate punishment: the imposition of the death penalty. This fall in California, the repercussions of racial disparities in death penalty sentencing could become much worse if voters enact a reckless ballot measure: Proposition 66.

Proposition 66 is a misleading initiative that will change death penalty procedures in several ways that will increase the state’s risk of executing innocent people. Prop. 66 would remove important legal protections that currently exist in California law to prevent the ultimate injustice. As with most criminal justice policies, Prop. 66 would disproportionately affect people of color. Black and Latino men, in particular, will be at greater risk of being executed for crimes they didn’t commit. Of the 156 innocent people exonerated from death rows nationwide, 61 percent were people of color.

People of color account for more than half of those awaiting execution, while only representing one-third of the general population in the U.S. In California, these disparities are even more stark. Black people account for 57 percent of the folks on death row but only 7 percent of the general population. In 2015, 86 percent of new death sentences were given to people of color. One California study found that individuals who kill a white victim are three times more likely to get a death sentence than those who kill a Latino victim, and four times more likely to get a death sentence than those who kill an African American victim.

Systemic racial bias in the death penalty is also demonstrated by lack of diversity among prosecutors and juries. A 2015 study found that 95 percent of elected prosecutors in states that allow the death penalty are white. Even in a state as diverse as California, 83 percent of elected prosecutors are white. Research over the past several decades has demonstrated that people of color are excluded from serving on juries in capital cases at much higher rates.

If passed, Prop. 66 would make California’s death penalty laws more similar to Texas’ laws, which have resulted in the execution of at least two innocent people in recent memory. One of those people was Carlos De Luna. De Luna was wrongfully convicted and sentenced to death for murder, even though no blood, DNA or fingerprint evidence linked him to the crime. Due to Texas law, De Luna was unable to adequately present evidence of his innocence and was executed, despite the fact that another man who bared striking resemblance to De Luna admitted to the murder.

Prop. 66 would make it harder for defendants to introduce newly discovered evidence of their innocence. For all the reasons above, people of color would be most at risk of suffering adverse consequences. In this case, Prop. 66 literally could be the difference between life and death for innocent people.

As if increasing the risk of executing innocent people was not reason enough to vote no, Prop. 66 will vastly increase costs to Californians and strain scarce resources. The initiative is confusing, poorly written and lacks understanding of how the death penalty operates in California, which will lead to substantial burdens for taxpayers and government agencies. The state’s nonpartisan analysts estimate that Prop. 66 will increase costs to taxpayers by tens of millions of dollars plus even more “unknown” costs. The initiative will add more layers of government bureaucracy by requiring local county courts to adjudicate death penalty appeals (currently, the state Supreme Court handles these), creating the exact opposite of expediency and encumbering already overburdened agencies with life-and-death responsibilities they are not equipped to handle.

It is time to send a message that we will not tolerate racial bias in any aspect of the criminal justice system, including in the administration of the death penalty. We must oppose any and all measures that would increase the chance of executing innocent men and women. We have seen too many innocent people of color killed for no reason other than their skin color. People of color would be disproportionately affected by this reckless and ill-conceived measure. Californians must vote no on Prop. 66.

Van Jones is a CNN political contributor, attorney, and has founded and led numerous social enterprises engaged in social and environmental justice.