As it became increasingly clear that Donald Trump was about to win the presidency on Tuesday night, mental health staff were on call at San Quentin Prison and at the Central California Women’s Facility, where anxiety was running high over a separate election result. By the next day the men and women on death row would know whether Californians had voted to spare their lives — by passing Proposition 62, abolishing the death penalty — or hasten their deaths, by passing Proposition 66, aimed to quicken executions. “They are understandably concerned,” California Department of Corrections and Rehabilitation spokesperson Terry Thornton told me earlier that day, pointing out that many are already under treatment for mental illness. The results to the ballot initiatives “could be destabilizing.”
It’s hard to imagine a place more heavily monitored than California’s death row, where isolation, strip-searches, and suicide watch are a fact of life. Yet CDCR counts 25 suicides among the condemned since 1978, the year a ballot initiative dramatically expanded the crimes punishable by execution in California. With the same people responsible for that initiative now campaigning against the death penalty, no one had more at stake in their success on election day than the nearly 750 people facing execution in California.
The outcome was as bad as they feared. Prop. 62 failed, with Yes votes reaching just 46.1 percent, versus 53.9 percent voting No. Meanwhile, the pro-death penalty Prop. 66 got barely enough support to pass, 50.9/49.1. The razor thin margin technically means that Prop. 66 remains a “close contest,” as designated by the California Secretary of State; the outcome could change as provisional and vote-by-mail ballots are tallied. But the votes required make the prospect unlikely. A spokesperson for the secretary of state declined to discuss it. “We will certify the election results on December 16,” he said on Wednesday.
Anti-death penalty activists conceded defeat on Wednesday, reiterating the flawed provisions of Prop. 66. “Poorly written initiatives often end up mired in costly and protracted litigation in California,” wrote ACLU lawyer Ana Zamora, who led the No on 66 campaign. In fact, multiple legal challenges have already been filed to block the measure. A lawsuit brought Wednesday by former California Attorney General John Van de Kamp and Ron Briggs — whose father led the fight to pass the state’s 1978 death penalty law — called on the California Supreme Court to nullify Prop 66, arguing that it “illegally interferes with the jurisdiction of California’s state courts,” while undermining the habeas rights of the condemned. Indeed, as many have long argued about Prop. 66, for all its promises to speed up the death penalty, it is unlikely to lead to executions anytime soon. With its myriad, confusing provisions, the initiative will face lawsuits for months and even years. In its post-election-day email, the Yes on 62 campaign assured supporters that Prop. 66 “presents constitutional and practical questions that make its implementation uncertain.”