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March 29, 2019

Notable judicial hand-wringing from California Supreme Court justices about "expensive and dysfunctional [capital] system that does not deliver justice or closure"

A helpful colleague made sure I did not miss the notable short concurring opinion at the end of this long decision by the Supreme Court of California affirming a death sentence. The concurring opinion was authored by Justice Goodwin Liu and joined by Justice Mariano-Florentino Cuéllar. Here is how it gets started:

Today’s decision is our first to affirm a death judgment since Governor Newsom signed Executive Order N-09-19 effecting a moratorium on capital punishment in California. Neither defendant nor the Attorney General has suggested that the Executive Order raises any new issues bearing on this appeal. We thus decide this case on the claims and arguments as submitted.

And yet, as the Executive Order underscores, our decision affirming the judgment does not alter a fundamental reality: A death sentence in California has only a remote possibility of ever being carried out.  As leaders of the judiciary have long observed, the death penalty presents serious challenges for the fair and efficient administration of justice. For decades, those challenges have not been meaningfully addressed.  As a result, California’s death penalty is an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.

The opinion goes on to highlight various reasons why the California death penalty system is such a mess and why the reform initiative in 2016, Proposition 66, "did not enact or put to the voters the key reforms that leading authorities consider fundamental to a workable death penalty system."  The eight-page opinion then concludes with this paragraph:

I express no view here on the morality or constitutionality of the death penalty.  Since joining this court, I have voted to affirm scores of death judgments, and I will continue to do so when the law requires.  It is impossible to review these cases without feeling tremendous compassion for the victims and their families, who have suffered unimaginable heartbreak and loss.  But the promise of justice in our death penalty system is a promise that California has been unable to keep. We are overdue for what our Chief Justice has called “a merit-based discussion on [the death penalty’s] effectiveness and costs.” (Dolan, [California Chief Justice Urges Reevaluating Death Penalty, L.A. Times (Dec. 24, 2011)].)  In the meantime, the judiciary will continue to do its duty under the law, leaving it to the voters and our elected representatives to decide whether California should double down on the current system or chart a new course.

Because Justice Liu was a law professor before he became a Justice, I fully understand his inclination to speak his mind on this issue and his decision to do so through the medium readily available to him (namely, a judicial opinion).  But, candidly, I was hoping for a little bit more of a formal legal payoff from this formal legal opinion, perhaps in the form of a call for briefing on whether Executive Order N-09-19 impacts the legal status of death penalty cases in California or whether state judges might exercise discretion not to continue adjudicating pending capital cases while the moratorium is in place.   

March 29, 2019 at 03:37 PM | Permalink

Comments

Doug:

It is a constant wonder that judges cannot see that these problems are caused by the case managers - the judges.

With executions (72%) and other removals (23.4%), Virginia has cleared 95.4% of their death row cases (1), which would have resulted in California, now, having 47 inmates on their death row, not 737.

In Virginia, the average time on death row, prior to execution, is 7 years.

Nationally, the first 5 years of double digit executions, in the 1980's, saw an average of 6.6 years of appeals, prior to execution.

In 2018 is was 19 years.

It appears, intentional, that judges are killing the death penalty.

It sure seems like the invisible elephant in the room.

===

Virginia has hasd 3 more executions, since this report, below,

1) Table 17, page 20, Capital Punishment, 2013, Statistical Tables, Bureau of Justice Statistics, December 2014, (THE LAST YEAR OF THAT DATA SET)
https://www.bjs.gov/content/pub/pdf/cp13st.pdf

Posted by: Dudley SHarp | Mar 31, 2019 4:34:59 AM

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