High court could affect state death penalty law
After narrowly surviving voter initiatives in 2012 and 2016, California’s death penalty law may soon be in jeopardy again, this time at the U.S. Supreme Court.
The court is being asked to take up a challenge to the death penalty in Arizona, where the law makes virtually every first-degree murderer subject to potential capital charges. According to a lawsuit on behalf of a condemned double murderer, the state is violating Supreme Court rulings dating from the 1970s that limit capital punishment to specific categories of especially heinous killers — the “worst of the worst,” in plain English.
If at least four of the nine justices agree to hear the case, as numerous advocacy groups are urging, the court will schedule arguments and issue a ruling, most likely in the 2018-19 term that begins in October. If it strikes down Arizona’s death penalty law, the ruling could also apply to
the California law, which is nearly as broad.
And that could spare the lives of the 746 prisoners on the nation’s largest Death Row.
California, like Arizona, has expanded its definition of capital crimes and “made the vast majority of murderers eligible for the death penalty,” said Rudolph Gerber, a retired Arizona prosecutor and judge who drafted his state’s death penalty law in 1973 at the request of then-state Sen. Sandra Day O’Connor, the future Supreme Court justice.
That law initially was relatively narrow, but Gerber, in a brief filed with the Supreme Court, says the state Legislature has since expanded it far beyond constitutional standards. He told The Chronicle that a crucial Supreme Courtmandated function of death penalty laws, narrowing their scope to apply only to the worst categories of murders, “has been diminished if not eliminated both in Arizona and in California.”
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento and one of the authors of a November 2016 ballot initiative aimed at speeding up executions in California, said he thinks there’s only a “remote” possibility that the Supreme Court will overturn the Arizona death penalty law. But he agreed that such a ruling “would probably apply to California.”
State Attorney General Xavier Becerra, whose office would defend the California law in court, declined to comment on the case.
The Supreme Court struck down all state death penalty laws in 1972 and began upholding revised, narrower laws in 1976. Both rulings said the laws, to be constitutional, must not define capital crimes so broadly that they give prosecutors and jurors virtually unlimited discretion to decide which murders should be punished by death. Such an approach would open the door to decisions based on politics, geography and race, the court said.
The court reaffirmed that standard in a 5-4 ruling in 2005 barring death sentences against juveniles — who, in the words of the majority justices, could not be reasonably “classified among the worst offenders.”
In the Arizona case, lawyers for Abel Hidalgo said studies show that over an 11-year period in the state’s most populous county, Maricopa — where Hidalgo was sentenced to death for two 2001 murders — 99 percent of all first-degree murders could have been prosecuted as capital crimes.
“Arizona’s death penalty statute, once narrowly drawn, now provides prosecutors and jurors with unfettered discretion,” Hidalgo’s lawyers told the court. They said California, Colorado and Missouri have comparable laws.
In response, Arizona’s lawyers said the law provides “clear, objective standards” for capital murders, and that Hidalgo, one of 120 current Death Row inmates, was sentenced under a narrower version of the law.
In California, the Legislature overrode Gov. Jerry Brown’s veto and passed a death penalty law in 1977 that was limited to selected categories of intentional killings, such as murder of a police officer or witness, murder for financial gain, and multiple murders.
But a prosecution-backed initiative approved by the voters in 1978 removed most of those limits. A later state Supreme Court ruling interpreted the death penalty law as also applying to some unintentional murders, if the defendant or an accomplice accidentally killed someone while committing another crime.
The 1978 initiative “was designed to reach virtually every first-degree murder so no one would escape a potential death sentence,” said San Francisco attorney John Mills, who filed the Supreme Court arguments in the Arizona case on behalf of Gerber and other former judges and prosecutors.
A study by University of Iowa law Professor David Baldus of all California firstdegree murder convictions between 1978 and 2002 found that 95 percent could have been charged under the current law as capital crimes, punishable by death or life without parole.
The California law is not directly before the Supreme Court. But that was also the case in 1972, when the court overturned Georgia’s death penalty law for failing to set meaningful standards for prosecutors and jurors. The ruling was quickly applied to similar laws in California and other states, which were required to re-sentence their condemned inmates to life in prison.
If that happened again, the fate of the death penalty in California would be up to the voters, who could pass a new initiative that complied with the court’s standards. Otherwise, life would become the maximum sentence for murder, as it is now in 18 states and the District of Columbia.
While a new death penalty law would apply to future crimes, Scheidegger, of the Criminal Justice Legal Foundation, said past Supreme Court rulings indicate that a new law might also be used to retry current inmates and reinstate their death sentences.
Robert Dunham, executive director of the Death Penalty Information Center, disagreed.
The Arizona case is comparable to the 1972 Georgia case, “a substantive decision that was applied retroactively to everyone on Death Row across the country,” Dunham said.
The Supreme Court grants review in only a small fraction of the cases it considers. It has looked at the Arizona case in six previous closed-door conferences — an unusually long period of deliberation — without deciding whether to accept it for a hearing or to deny review, leaving in place a ruling by the state’s Supreme Court that upheld the law.