Pending case could reshape death penalty in California

The California Supreme Court asked for additional briefing this year in a case that could reshape the way the death penalty is applied in the state.

The court will decide whether the California Constitution requires capital case juries to agree on the death penalty beyond a reasonable doubt and unanimously agree that aggravating factors occurred before considering them.

For decades, California lawyers have argued the Constitution requires both of those determinations. But the high court has routinely rejected those arguments, said Elisabeth Semel, director of the Death Penalty Clinic at UC Berkeley School of Law.

The request for additional briefing on those questions and the responses the court has received illuminate what some attorneys say may be a cultural shift in the capital punishment debate in California, fueled by the rise of the so-called progressive prosecutor movement and enabled by a governor who is opposed to the death penalty.

“A lot of the conversations that are occurring now between prosecutors and defense counsel over the death penalty are qualitatively different from the kinds of conversations that happened for several decades,” said Semel. “And that’s related in large measure to living in a different political time.”

The increasing disinclination of prosecutors to seek capital punishment has been a major cause of that political shift.

Santa Clara County District Attorney Jeffrey Rosen in July made headlines when he said he changed his mind about the punishment, citing a trip to a slavery museum in Alabama in 2018 and the Memorial Day police killing of George Floyd that sparked nationwide protests this summer.

San Joaquin County District Attorney Tori Verber Salazer, who left the California District Attorney’s Association this year, saying it was “out of touch and unwilling to find new approaches to criminal justice,” described execution as an “archaic form of punishment that is riddled with errors.”

San Francisco District Attorney Chesa Boudin, who was sworn into office in January, took an anti-death position from day one. And in a district attorney race that many described as a national barometer for policing and incarceration, Los Angeles County District Attorney-Elect George Gascon, who opposes the death penalty, defeated incumbent Jackie Lacey, who sent nearly two dozen people to death row in two terms in the nation’s largest local prosecutorial office.

“That has to get their attention,” said Eric Schweitzer, president of California Attorneys for Criminal Justice, a statewide group of private and public defense attorneys, referring to the majority of prosecutors who hold a favorable view of capital punishment. Gascon’s pledge “should serve as a clarion call to district attorneys around the state,” he said.

In response to the high court’s request for additional briefing, all four prosecutors and Gov. Gavin Newsom, who already issued a moratorium against capital punishment for as long as he is governor, argued in separate court filings in late October that death sentences are imposed in an arbitrary and racially biased manner under existing California statutes.

Newsom went further and argued California’s death penalty “is now, and always has been, infected by racism.”

A convicted double murderer is arguing his constitutional rights were violated at trial by a jury that was not required to decide beyond a reasonable doubt and unanimously on their verdict of death.

Newsom’s brief, written by Semel and Erwin Chemerinsky, dean of UC Berkeley School of Law, argued, “The life-or-death decisions in capital cases need the protections that would be provided by the requirements of unanimity and proof beyond a reasonable doubt in the jury’s verdict.”

Similar arguments were made in the prosecutors’ brief.

“Whether you agree or disagree with the death penalty, we can all agree that it should not be applied in an arbitrary manner,” said Rosen.

Cristine DeBerry, executive director of the Prosecutor’s Alliance of California, a nascent group of prosecutors that aims to challenge the political power of the California District Attorneys Association, said both briefs are unprecedented.

“It is challenging for a prosecutor to speak out against the traditional approach to law enforcement in any category, and the death penalty is no exception,” said DeBerry.

Since its reinstatement in the late 1970s, capital punishment has been a hotly debated issue in California. Prosecutors who support it say it serves as a crime deterrent and ensures convicted murderers won’t kill again. They also reason that for some crimes, any lesser punishment is simply inadequate. Others have said they support it simply because voters have upheld it.

Those views are contested by some prosecutors and defense attorneys who say the death penalty has no deterrent effect on crime, it perpetuates racial inequities in the criminal justice system and it’s an unreasonably expensive alternative to a life-in-prison sentence.

“There’s always been a tension in this state around the death penalty,” said Rosen. “And even though we’ve had it, people have been very loath to use it and have wanted many protections built around it. It’s almost like they want it but they don’t want it.”

California is one of 11 states that has capital punishment on the books but has not carried out an execution in more than a decade, according to the Pew Research Center. At least 12 condemned prisoners have died in the past eight months from complications stemming from a coronavirus infection in California, the same number the state has executed since 1993, according to data from the California Department of Corrections and Rehabilitation.

Clarence Ray Allen, who died by lethal injection at San Quentin State Prison in 2006, was the last California prisoner the state executed. Since then, prosecutors in 26 of the state’s 58 counties sent 203 prisoners to death row, swelling San Quentin’s condemned population to more than 700, more than any other state, according to data from the state’s prisons department.

Several studies and bipartisan reports have identified a primary source of the backlog.

In 2008, the bipartisan California Commission on the Fair Administration of Justice conducted the first comprehensive review of the death penalty since it was reinstated in 1977. One of the things the commission examined was why capital cases move more slowly through California’s criminal legal system than noncapital cases.

At the time of the report, it took more than two decades on average from the time a sentence was administered to the time an execution was carried out in California, nearly twice the national average. The commission estimated those delays, caused largely by shortages of adequate defense counsel, cost California taxpayers well over $100 million annually.

A follow-up study in 2011 by 9th U.S. Circuit Court of Appeals Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell found, “The average time expended before the California Supreme Court appoints counsel for a direct appeal in a capital case is now about five years, while the wait for state habeas counsel can be as long as 13 years.”

Those delays, the study estimated, will have cost taxpayers a total of $9 billion by 2030 to execute a projected total of 25 people since capital punishment was reinstated in 1977.

“We’re spending money on the back end but not the front end,” Rosen said. “If we could spend more of our money on police officers and mental health professionals and drug treatment, we reduce crime, have fewer crime victims and don’t need as many prison beds. From a dollars-and-cents perspective, it’s probably one of the best examples of how we’re not spending our money in a way that would be most effective.”

Gascon said that disparity is one of the main reasons he promised to not seek the penalty when he takes office.

“You can have two people that are equally situated, same crime. Both are going to go to prison. Both are going to die in prison. But one is going to cost 10 times more just simply because he refused to take a plea,” Gascon said.

What does all of this mean for the future of the death penalty in California? It’s hard to say.

The last two times voters were asked whether to uphold or abolish it, the decision was closely split. And public polling shows that dynamic largely remains the same today.

However, with the disinclination of a growing number of prosecutors to seek capital punishment, and with a governor who has gone further to criticize it than any of his predecessors, some attorneys say change could be right around the corner.

“Maybe next election would be the time,” said Schweitzer. “I think that 2% or 3% of voters could have been awakened to the possibility that they were wrong.”