Editorials

How justices’ ruling shows death penalty law shouldn’t be decided by initiative

Go inside San Quentin’s death row

About 750 condemned inmates are living out their lives on death row at San Quentin State Prison, California's oldest state prison which opened in 1852.
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About 750 condemned inmates are living out their lives on death row at San Quentin State Prison, California's oldest state prison which opened in 1852.

The California Supreme Court’s decision upholding a profoundly flawed 2016 initiative that promises to speed executions made clear how badly the death penalty twists and perverts the criminal justice system.

The justices illustrated once more why complex legal questions should not be decided by initiative. Hot button issue though it is, the death penalty, or at least the law governing it, simply cannot be fully explained in brief campaign spots.

There won’t be an execution this year, and perhaps not next year. But the ruling ensures that the death penalty will be an issue in the 2018 race to replace Gov. Jerry Brown.

Unfortunately, voters last November narrowly approved Proposition 66, a measure that supposedly will speed executions, and rejected Proposition 62, which would have abolished capital punishment.

The Sacramento Bee editorial board, which long had supported the death penalty, reversed that stand in 2012, though not out of sympathy for killers. People who commit the most heinous crimes should die in prison.

But capital punishment is unworkable and anachronistic. Executions may provide some solace to the survivors of murder victims, though unnatural deaths of loved ones leave holes that can never be filled. The death penalty is neither an efficient punishment, nor is it the deterrent that some supporters claim it to be. Directly and indirectly, much of that was reflected in the Supreme Court’s 5-2 ruling issued Thursday.

Writing for the majority, Justice Carol Corrigan upheld the measure in general but struck down a core part of Proposition 66, the provision requiring that the state Supreme Court decide capital cases within five years.

As it is, cases often are not decided for a decade or more, for good reasons. The majority held that the initiative’s five-year standard was aspirational, not a command. A hard deadline “would undermine the court’s authority as a separate branch of government.”

In a concurring opinion joined by three justices, Justice Goodwin Liu underscored the complexities of death cases: Appellate lawyers are hard to find. Once they’re retained, lawyers must meticulously pick through trial records that run 5,000 pages or more, plus exhibits. Written briefs in capital cases run 300 to 500 pages and commonly raise 30 or 40 claims. A single case can dominate a lawyer’s practice for more than a decade.

“Proposition 66 does not increase the availability of appellate and habeas attorneys, beyond requiring this court to compel certain criminal appellate attorneys to take death penalty appeals against their will,” Liu wrote. “It is unclear how effective this strategy will be in light of the shrinking and graying pool of private appellate attorneys.”

Justice Mariano-Florentino Cuéllar dissented, writing that the Yes-on-66 claim about the five-year deadline was an inducement designed to win voter support. It was, he wrote, “a sham.” The way to “prevent similar swindles in the future” would be for the court to clearly state why the five-year rule was wrong and declare the initiative to be unconstitutional.

Although it neutered the five-year provision, the majority’s decision could make executions more likely, in time. About 17 of California’s 747 condemned inmates have exhausted all appeals. The decision probably will force the state to streamline approval of drugs used to carry out executions, assuming the state can find lethal drugs. California regulators had been slow-walking approval of lethal drugs, part of the reason there hasn’t been an execution in California since 2006.

Even if drugs are found, there’s no certainty that executions will ever become routine in California. We hedge by using the words, “could” and “likely,” because nothing is certain about capital punishment. No initiative can change that, despite what campaign consultants tell voters.

Judges are extra careful with capital cases, knowing a mistake could result in the execution of an innocent person. The California Supreme Court has upheld 271 death sentences. But federal courts also have a say, and nothing in the initiative or in Thursday’s decision will have any impact on federal judges.

Governors have the power to order that executions proceed or to commute death sentences to life in prison. No governor, not even the most law-and-order politician, would relish presiding over multiple executions.

In his 1989 book, “Public Justice, Private Mercy,” the late Gov. Pat Brown described his anguish: “It was an awesome, ultimate power over the lives of others that no person or government should have, or crave.

“And looking back over their names and files now, despite the horrible crimes and the catalog of human weaknesses they comprise, I realize that each decision took something out of me that nothing – not family or work or hope for the future – has ever been able to replace.”

There won’t be an execution this year, and perhaps not next year. But the ruling ensures that the death penalty will be an issue in the 2018 race to replace Gov. Jerry Brown, a moral opponent of capital punishment. All three top Democratic announced candidates for governor, Lt. Gov. Gavin Newsom, former Los Angeles Mayor Antonio Villaraigosa and Treasurer John Chiang, oppose capital punishment.

So does the most well-funded Republican candidate, John Cox. Cox opposes capital punishment because of its cost, and because of his Catholic faith; he also opposes abortion. However, his campaign strategist, Wayne Johnson, told an editorial board member Cox would follow the law.

In November 2016, slightly more than 51 percent of the electorate voted for Proposition 66, 292,000 out of the almost 13 million votes cast. Based on that result and, now, a 5-2 high court decision that stretched to uphold this unfortunate, unworkable and unenforceable mandate, California’s law will include the death penalty, for now.

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