Tuesday’s oral arguments in the California Supreme Court on the constitutionality of Proposition 66, the voter-passed initiative to speed up executions in California, focused on why it violates separation of powers: It would have a devastating effect on the ability of the California Supreme Court to fulfill its constitutional duties.
The best the lawyers defending the initiative could say was that the court didn’t really have to comply with it. But the initiative is written in mandatory language and it imposes burdens on the courts that make it clearly unconstitutional.
Proposition 66, which was narrowly approved by 51 percent of the voters in November 2016, requires that all appeals and legal challenges to a death sentence in California state courts be completed within five years. The problem is that the initiative does not solve the cause of the delays. There is a desperate shortage of lawyers qualified to handle death penalty cases and defendants often must wait for years for appointment of counsel.
The delay also is caused by death penalty cases, unlike all other litigation, having to go straight from the trial court to the California Supreme Court. The Supreme Court lacks the benefit of review by the intermediate court of appeals, which could resolve many of the cases and facilitate much more efficient review by the higher court.
Underlying all of the legal arguments is the human reality: Proposition 66, if upheld by the California Supreme Court, risks the execution of innocent people.
If Proposition 66 goes into effect, it is estimated that the California Supreme Court would need to spend about 90 percent of its time on death penalty cases, leaving little ability to handle other matters. There are 750 inmates on death row in California and a backlog of hundreds of cases. Under well-established law, separation of powers “is violated when the actions of one branch defeat or materially impair the inherent functions of another.” There is no doubt that Proposition 66 would gravely impair the functioning of the California Supreme Court.
At the oral argument on Tuesday, several of the justices said that there was no way for the California Supreme Court to meet the deadlines imposed by Proposition 66 without giving up almost all of its other work. The lawyers defending the initiative – Jose A. Zelidon-Zepeda and Kent. S. Scheidegger – responded that the initiative just creates a “target” and that there are no consequences for not complying with the initiative.
The problem with this argument is that the initiative imposes a requirement and not just a target. The lawyers’ defense renders it meaningless.
The California Supreme Court cannot rewrite the initiative. Justice Mariano-Florentino Cuéllar observed that the initiative requires “pretty stark time limits.” Justice Leondra Krueger responded: “So it is a mandatory deadline that is toothless?”
The lawyers defending the initiative also said that the court could sever these requirements and uphold the rest of the initiative. To do so, the court would have to conclude that the voters would have passed the initiative even without the time limits, which is not credible because the primary purpose of the initiative was to dramatically speed up executions by creating strict deadlines.
Underlying all of the legal arguments is the human reality: The initiative, if upheld by the California Supreme Court, risks the execution of innocent people.
The delays in imposing the death penalty are not a result of the bad faith of lawyers or judges. Speeding up executions without providing qualified lawyers and without dealing with the problems in the courts is a recipe for unjustly imposing the death penalty.
Tuesday’s oral argument left me hopeful that the California Supreme Court will do the right thing and declare Proposition 66 unconstitutional.
Erwin Chemerinsky is the founding dean and distinguished professor of law at University of California, Irvine, School of Law. He can be contacted at email@example.com.