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June 5, 2021

Might the California Supreme Court find a procedural flaw in the state's many death sentences?

The question in the title of this post is prompted by the notable oral argument that took place last week in the California Supreme Court.  This Los Angeles Times piece, headlined "California’s top court weighs overturning hundreds of death penalty sentences," provides this account and context. Here are excerpts:

For decades, California’s highest court has left it up to individual jurors to decide whether certain circumstances increase the severity of a crime and thereby warrant the death penalty in murder cases that qualify for the ultimate punishment.  On Wednesday, the state Supreme Court heard arguments on a change to that long-standing practice, which could potentially overturn hundreds of death penalty sentences in California.

At issue is how juries review “aggravating” factors — such as whether a crime was gang-related or involved multiple victims. Defense lawyers in the case argued that to ensure equal application of the death penalty, state law and the state Constitution require juries to be unanimous in their reasoning on each factor.

That the court is even considering new requirements is unusual.  It has refused to impose them in the past and has even summarily dismissed the kind of arguments presented Wednesday.  But the court’s composition has changed over the years.  Last June, the court issued a brief order asking for written arguments on the jury issue in what was otherwise a routine death penalty case.  That raised hopes among some that the court might be ready to wield an ax to capital punishment in California, a state that has produced the nation’s largest death row but hardly any executions.

Wednesday’s hearing probably tempered those hopes.  During a 90-minute hearing, only three justices — the more liberal members of the seven-judge court — spoke.  Though the silence of the majority can be interpreted in different ways, the hearing did not clearly signal that monumental changes were afoot.

The June order asked litigants to submit written arguments on this issue: Must a jury decide beyond a reasonable doubt that a defendant should get the death penalty or life without parole, and must that jury also be unanimous in deciding the reasons for a capital verdict?  If the court agreed, a ruling would probably throw out hundreds, if not all, previous death sentences in California.

The court’s sudden interest in the issue alarmed death penalty supporters.  They considered the questions long answered. Kent Scheidegger, a lawyer for a prominent pro-death penalty group, said he was both “surprised” and “very disturbed,” even with the changed composition of the court....

Justice Goodwin Liu, a Brown appointee, spoke the most during the hearing. He repeatedly pressed defense lawyers to cite precedent for their positions.  “I think there’s a lot of appeal to your argument from a fairness perspective,” Liu told a defense lawyer.  Liu’s “difficulty,” he said, was in finding cases that supported the argument legally. Is it possible, he asked, “that this issue has simply been missed this entire time? For 150 years, we have missed this issue?”...

Scheidegger said even that partial victory for the defense would have a “cataclysmic” impact on the death penalty and potentially overturn scores of sentences.  Such decisions in California are usually applied retroactively.  But Scheidegger said he felt “cautiously optimistic” after the hearing.  Liu, he said, did not seem “to be buying” the defendant’s main arguments.

UC Berkeley law professor Elisabeth A. Semel, who co-wrote Newsom’s written argument, declined to predict how the court would vote. “Justices Liu, Cuellar, and Groban had some tough questions” for the deputy attorney general defending the death penalty, she said.  “I do not believe she answered to their satisfaction.”

California has more than 700 inmates on death row, but legal challenges have stymied executions.  Only 13 inmates have been executed since 1992, and Newsom imposed a moratorium on executions during his term in office.

June 5, 2021 at 09:32 PM | Permalink

Comments

Scheidegger said even that partial victory for the defense would have a “cataclysmic” impact on the death penalty and potentially overturn scores of sentences.

13 people were executed in CA in around thirty years. Calm down.

Posted by: Joe | Jun 7, 2021 1:33:29 PM

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