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August 24, 2017

California Supreme Court seems to clear way for resumption of executions after resolving Prop 66 challenges against capital defendant

As reported in this local article, the "California Supreme Court on Thursday upheld a ballot measure narrowly approved by voters to change the state's dysfunctional death penalty system and speed up executions."  Here is more on the ruling and its context from this press account:

The highly anticipated ruling concerned Proposition 66, a push to "mend not end" capital punishment in California. The measure aimed to expedite death sentences in part by setting a five-year deadline on court appeals by condemned inmates. With two of the seven justices dissenting, the state Supreme Court said the five-year deadline was advisory, not mandatory — a point that supporters of the measure had conceded during oral arguments....

Condemned inmates in California currently languish for decades and are more likely to die of natural causes than from lethal injection. There are nearly 750 inmates on death row and only 13 have been executed since 1978 — the last in 2006. It now takes up to five years for death row inmates to get an attorney, and it can take upward of 25 years to exhaust appeals.

Proposition 66 would expand the pool of appellate lawyers handling capital cases and allow lower level state courts — not just the California Supreme Court — to hear appeals.

Death penalty opponents agreed with Proposition 66 backers that the current system was broken, but they argued that the measure would lead to the appointment of incompetent attorneys and overwhelm courts. The result: Insufficient review that could send innocent people to their deaths. Arguments before a divided California Supreme Court in June focused on whether the measure's five-year deadline to hear appeals was realistic and enforceable. Supporters of the measure surprised observers when they conceded the time limit was not mandatory but more of a guideline....

The measure — approved by 51 percent of voters — was designed by prosecutors to revamp the appeals process so the "worst of the worst" murderers are actually executed. Under the measure, more lawyers would have to take death penalty appeals, and they would be assigned almost immediately after sentencing. It would shift one type of appeal focused on newly discovered evidence or alleging misconduct by jurors or prosecutors to trial court judges. With 380 death penalty appeals now pending, there was concern from some legal observers that the state's high court would be overwhelmed trying to meet the deadline imposed by the measure and would hardly hear other cases of merit.

The full ruling in Biggs v. Brown runs 121 pages and is available at this link. I hope to have time to read and perhaps comment further on the opinion in the days ahead, and in the meantime here is how the opinion for the court begins:

In the November 2016 election California voters approved Proposition 66, the Death Penalty Reform and Savings Act of 2016. (Gen. Elec. (Nov. 8, 2016) § 1.) The measure’s various provisions are intended to facilitate the enforcement of judgments and achieve cost savings in capital cases. Petitioner Ron Briggs seeks writ relief from this court, challenging the constitutionality of certain aspects of the proposition.  Governor Edmund G. Brown, Jr., Attorney General Xavier Becerra, and the Judicial Council of California oppose the petition as respondents.  They are joined by intervener Californians to Mend, Not End, the Death Penalty, a campaign committee representing the proponents of the initiative. The issues raised are of sufficient public importance to justify the exercise of our original jurisdiction in the interest of a prompt resolution. (Legislature v. Eu (1991) 54 Cal.3d 492, 500.)

Petitioner asserts four grounds for relief.  He claims Proposition 66 (1) embraces more than one subject, as prohibited by the California Constitution; (2) interferes with the jurisdiction of California courts to hear original petitions for habeas corpus relief; (3) violates equal protection principles by treating capital prisoners differently from other prisoners with respect to successive habeas corpus petitions; and (4) runs afoul of the separation of powers doctrine by materially impairing the courts’ ability to resolve capital appeals and habeas corpus petitions, and to manage their dockets in general.

Petitioner’s constitutional challenges do not warrant relief.  However, we hold that in order to avoid serious separation of powers problems, provisions of Proposition 66 that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.

August 24, 2017 at 02:47 PM | Permalink


This does not clear the way for executions. There is still a stay in place arising from Federal District Court litigation regarding the method of execution, which has been a moving target. Regs were recently issued so that litigation will resume but it still has to be resolved for executions to start again.

Posted by: A | Aug 24, 2017 4:21:36 PM

"The result: Insufficient review that could send innocent people to their deaths."

I thought appeals involved finding loopholes in laws, and not the review of factual innocence. I have proposed many times to get rid of know nothing, loophole chasing judges.

Replace them with seasoned investigators who will find mistakes in fact, and bring substance to the appellate practice.

Posted by: David Behar | Aug 24, 2017 5:41:24 PM

"full ruling in Biggs v. Brown runs 121 pages"

That includes all the opinions. Justice Liu's concurrence (joined by multiple justices -- Liu was rejected as a federal judge nominee, opening up a path to be a state justice) is interesting, including the problems the measure was passed to addressed, the meaning of it as a matter of law (which might clash with actual expectations, contra "reasonable" voters who knew the existing law) and underlining certain set limits were not fixed in stone.

What all of this will mean in actually speeding up executions in CA remains to be seen.

Posted by: Joe | Aug 24, 2017 7:30:29 PM

I see the federal stay as strong evidence that the state officials are not that interested in actually resuming executions. They could appeal it as Ohio did and it would very likely be gone in short order, even if the initial appeals court ruling went against the state.

Posted by: Soronel Haetir | Aug 24, 2017 9:28:42 PM

I know California is a large state but the three opinions seemed very pessimistic about the ability of attorneys and judges to handle appeals in anything resembling the time frames routinely managed in other states. The time frames set forth in the statute seem very generous when compared to the time frames contained in the federal rules of appellate procedure, the U.S. Supreme Court rules, and the rules in many states. Appellate counsel and courts working in these jurisdictions appear to be able to do a thorough job on capital cases within these time frames. Maybe there is something unique about the way they do things in California that makes it difficult, but it seems like this should be a fixable issue.

Posted by: tmm | Aug 25, 2017 12:31:42 PM

Don't hold your breath waiting for the resumption of executions in California. At least ten years away, if ever.

Posted by: Emily from Iowa | Aug 27, 2017 1:38:14 PM

Nice article pure informative and knowledgeable thank you for sharing it.

Posted by: Vidmate Download | Aug 28, 2017 6:49:14 AM

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