THE QUESTION Should California expand the law prescribing execution or permanent imprisonment to include certain murders involving ambush, murders by arson, and kidnap-murders? PROVISIONS The measure provides for changing the language of the law defining "special circumstances" in which the penalty for first-degree murder is death or imprisonment for life without possibility of parole. The law now says such circumstances exist when a defendant intentionally kills a victim "while lying in wait." The proposed change would define this special circumstance to include a murderer who kills a victim "by means of lying in wait," even if the murder occurs after some time and in a different place than the ambush of the victim. The law now prescribes execution or permanent incarceration for a murder committed while any of a dozen specified felonies is attempted, assisted, or accomplished, or during flight afterward. This measure would add, in the case of kidnapping or arson, that the requirement to prove special circumstances is met when the intent to kill and the "elements" of kidnapping or arson are established. BACKGROUND In 1972, the United States Supreme Court decided in Furman v Georgia that the death penalty could not be imposed in an "arbitrary and capricious" manner. The California Legislature rewrote the death penalty law more narrowly in 1977 to conform to the ruling in Furman, but in 1978 voters also approved a broader death penalty initiative (Briggs), which is now the California law. For first-degree murder, the law now provides for a term of 25 years to life in prison, with eventual parole eligibility. First-degree murder can also result in a sentence of death or life imprisonment without the possibility of parole if additional specified felonies or "special circumstances" apply. In a case in the 1980s, the California Supreme Court overturned a death sentence because the murder took place some time after the killer sprang upon the victim, and in another location. The court interpreted the special circumstance of "while lying in wait" to mean during the time of concealment. The time elapsed between the moment of ambush and the murder removed the element of immediacy that the court decided the law required. Two other cases heard by the California Supreme Court in the 1980s, involving kidnap-murders, turned on the distinction between a murder committed in conjunction with a kidnapping, and kidnapping for the purpose of killing the victim. Special circumstances exist when specific felonies have a purpose independent of the crime of first-degree murder. The court decided the death penalty may not be imposed when a kidnapping only furthers the main purpose of murder. Meeting this test of independent purpose presumably affects all the felonies specified in the death penalty law. Proposition 18 would change the law for crimes involving two felonies: arson or kidnapping. If the intent to kill is established, only the "elements"of arson or kidnapping need be proven to qualify these felonies as special circumstances. This measure is on the ballot because as an amendment to an initiative originally approved by voters, the proposed changes in the law must also be approved by a majority of voters. The bill that placed this measure on the ballot also declared the legislature's intent to make an exception, in the case of kidnapping and arson, to the requirement established in California Supreme Court cases that kidnap and murder, or arson and murder, must be separate crimes, that is, have "independent felonious purpose." FISCAL EFFECT No one knows how many more murders will be prosecuted as capital crimes as a result of the changes Proposition 18 would make in the death penalty law. Death penalty trials cost more to prosecute and to defend than non-capital cases. Appeals upon conviction are mandatory and automatic. The cost of incarceration on death row is greater than the cost of confinement in other prison settings. The state would bear some additional costs in the event a case comes to trial that would not otherwise qualify as a capital offense, and a conviction is obtained. Overall, since this measure will probably affect relatively few cases, costs are likely to be minor. IMPACT OF YES OR NO VOTE A YES vote means the law will change. First-degree murders that involve ambush are eligible for the death penalty, regardless of whether the murder takes place immediately after a period of lying in wait or some time later. First-degree murders where the intent to kill is proven, and the elements of the felonies of arson or kidnapping are established, may obtain a sentence of death even when the arson or kidnapping was committed to further the purpose of murder. A NO vote means the law remains unchanged. Murders committed immediately on confrontation of a victim after a period of concealment remain death penalty-eligible, but if time intervenes between the ambush and the murder, the death penalty may not apply. And, in order for arson and kidnapping to qualify as special circumstances in capital cases, they must be crimes independent of first-degree murder. SUPPORTERS SAY
OPPONENTS SAY
SUPPORTERS AND OPPONENTS The official ballot arguments in support are signed by Hon. George Deukmejian, Former Governor or California; Hon. Michael D. Bradbury, District Attorney of Ventura County; Mrs. Quentin L. (Mara) Kopp, Retired Social Worker; and Mrs. Harriet Salarno, Chair, Crime Victims United of California. Other supporters mentioned in the ballot arguments include Governor Gray Davis, Attorney General Bill Lockyer, Former Governor Pete Wilson, Lt. Governor Cruz Bustamante, Speaker Antonio Villaraigosa, and Senator Richard Rainey. The official ballot arguments in opposition are signed by Most Reverend Sylvester D. Ryan, President, California Catholic Conference; Mike Farrell, President, MJ&E Productions, Inc.; Senator Patrick Johnston, Chair, Senate Appropriations Committee; Azim Khamisa, Founder, Tariq Khamisa Foundation; Wilson Riles, Jr., Executive Director, American Friends Service Committee of Northern California; and Senator John Vasconcellos, Chair, Senate Public Safety Committee. For more information: Supporters: Michael D. Bradbury, District Attorney, County of Ventura, 805-654-2501 Opponents: Mike Farrell, President, Death Penalty Focus of California, 415-243-0143, email dpf@deathpenalty.org, www.deathpenalty.org
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