Execution measure survives challenge
The state Supreme Court appears to have moved up the calendar for resuming executions in California, even as it struck down a voter-approved mandate to decide all capital cases within five years.
The justices ruled Thursday that the timetable set out in the November initiative, Proposition 66, would be unconstitutional interference with judicial authority if taken literally — the ballot language said the court “shall” resolve death penalty appeals within five years of sentencing, more than twice as fast as its current pace — so it should be reinterpreted as merely a recommendation to work faster.
But the court, virtually without dissent, upheld the rest of Prop. 66, which limits appeals by condemned prisoners, requires an additional group of defense lawyers to accept capital cases, and removes a barrier to the state’s proposed rules for single-drug executions. Lawyers on opposing sides of the case said the ruling was likely to lead to executions being carried out sooner and more often in a state that last put a prisoner to death in January 2006.
“Prop. 66 will go into effect very nearly in its entirety,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento and an author of the ballot measure. Although federal courts must still review the state’s lethalinjection procedures, Scheidegger said he expects executions to resume within a year.
Christina Von der Ahe Rayburn, who represented opponents of Prop. 66, agreed that the measure is likely to speed up executions despite the invalidation of the five-year deadline. She said the ruling wasn’t the last word, because condemned prisoners can still
argue that the new rules are invalid in their individual cases.
But a statewide defense lawyers’ organization, California Attorneys for Criminal Justice, said the measure the court upheld “prioritizes expresslane decisions over robust judicial review.”
Voters approved Prop. 66 by a 51 percent majority while rejecting, for the second time in four years, a competing measure to repeal the state’s death penalty law.
California has the nation’s largest Death Row, with nearly 750 inmates, about half of whom have been there for at least 20 years. Appeals of death verdicts now take more than two decades to resolve, on average. Prosecutors and crimevictims’ groups who backed Prop. 66 told voters the measure would cut that period in half by requiring faster court action, limiting some types of appeals, and requiring more lawyers to accept capital cases.
Opponents argued that the measure would cause even longer delays, because of court challenges and legal uncertainties about its provisions, and said it would coerce unwilling and unqualified lawyers to handle capital appeals and swamp the state’s high court with death cases.
The provisions that the court unanimously upheld Thursday included: A requirement that lawyers who now accept court appointments to represent impoverished defendants in noncapital cases agree to handle death penalty appeals, where attorneys are in short supply and inmates wait an average of three years for legal representation.
Restrictions on the secondstage appeals known as habeas corpus, which usually involve claims of incompetent legal representation or prosecutor misconduct and are a frequent source of federal court rulings overturning state death sentences. Inmates often file habeas corpus claims on their own and additional claims once they have a lawyer, but Prop. 66 limits them to a single filing unless they offer new evidence that they were innocent of a capital crime.
Repeal of a requirement that state prison officials consider public comments, already submitted in large numbers, before adopting new rules for a switch from three-drug executions, in use since 1996, to a lethal dose of a single barbiturate.
The rules would still have to pass muster with the federal courts, which intervened after the last San Quentin execution in 2006 and found flaws in execution procedures and staff training that created an undue risk of an agonizing death. But Scheidegger said U.S. Supreme Court rulings since then have made it harder for condemned prisoners to challenge procedures for lethal injections.
The state’s justices were divided Thursday on the fiveyear timetable set by Prop. 66 — but only over whether it should be recast as a goal or taken literally and declared unconstitutional.
Justice Carol Corrigan, writing for a 5-2 majority, said a mandatory five-year deadline for resolving capital cases “would undermine the court’s authority as a separate branch of government” and its ability to handle the rest of its workload.
She noted that Prop. 66 did not say how the deadline would be enforced, and that lawyers defending the measure at a June hearing — Scheidegger and a representative of Attorney General Xavier Becerra — had acknowledged that it could be read as a goal rather than a duty. That would be the more prudent course, said Corrigan, who gave a similar interpretation to a Prop. 66 directive that trial judges rule within two years on condemned inmates’ habeas corpus claims.
Justice Mariano-Florentino Cuéllar, in a dissenting opinion, called the initiative’s five-year deadline a “bait-and-switch” and a “sham” that was presented to the voters as a mandate before the initiative’s defenders recast it to the court as only a suggestion. He noted that one section of Prop. 66 allows victims’ families to ask the court to enforce the deadline.
But Cuéllar argued only that the court should have declared the deadline unconstitutional, along with another provision shifting habeas corpus appeals to state appellate courts, and agreed that the rest of Prop. 66 should be allowed to take effect.
Under the court’s timetable, it will take effect in 30 days unless opponents seek a rehearing, which would postpone the date by an additional two months. Rayburn said the plaintiffs might also seek federal court review of the restrictions on habeas corpus claims.
The justices should have invalidated the entire ballot measure, Rayburn said, because without the mandatory deadlines, “this is not the Prop. 66 that was billed to the voters.”
Franklin Zimring, a UC Berkeley law professor, said the court had managed to “kick the can down the road” by leaving disputes over the workings of Prop. 66 to future cases by individual prisoners.
He noted that the new rules would not affect the hundreds of cases already filed under previous standards, and said the resumption of executions in California would be up to the state’s political leaders — notably Gov. Jerry Brown, a selfdescribed death penalty opponent who has the power to commute capital sentences.
The lawsuit challenging Prop. 66 was filed by the late John Van de Kamp, a former state attorney general, and Ron Briggs, a former El Dorado County supervisor whose father, state Sen. John Briggs, R-Fullerton (Orange County), sponsored the 1978 ballot measure that established the current death penalty law.
The case is Briggs vs. Brown, S230039.