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Will the Supreme Court Kill The Death Penalty This Term?

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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

California high court ruling on death penalty could restart executions

San Quentin prison, California
San Quentin prison, California
The California Supreme Court hears many high-stakes cases on issues such as individual rights, taxes, and the lawmaking powers of the state and its voters. But it has seldom confronted a case with such potentially dramatic consequences as Tuesday's hearing on the Proposition 66 death-penalty initiative.

If the court - traditionally deferential to the will of the voters - upholds the central provisions of Prop. 66, it will open the door to the resumption of executions in a state that last put a prisoner to death in January 2006. Nearly 750 condemned inmates inhabit the nation's largest death row, and about 20 have run out of appeals to their conviction and sentence.

Prop. 66 also seeks to speed up future executions, in part by requiring the state's high court to decide all death-penalty appeals within 5 years of sentencing - more than twice its current pace. If the court upholds that requirement, one of the most hotly contested in the case, it may have to reconfigure itself as a tribunal that gives priority to capital cases over all other types of criminal and civil law disputes in the nation's most populous state.

The justices could reject the deadlines while upholding other Prop. 66 provisions aimed at shortening the death-penalty process, such as limiting prisoners' appeals and requiring more lawyers to accept capital cases. But opponents say the proposed timetables for court action are the heart of an initiative that seeks to hamstring judicial authority over state law.

Neither lawmakers nor voters can "force the courts to prioritize a certain type of case at the expense of all other types of cases," said Christina Von der Ahe Rayburn, a lawyer in the suit to overturn Prop. 66. The requirement to move death cases to the front of the line, she said, would "impair the court's inherent function of giving fair and equal treatment to (all) litigants."

Not so, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an author of Prop. 66. He said the measure would actually relieve the state Supreme Court of some of its current death-penalty workload by transferring some hearings to trial courts. It sets a 5-year deadline that he says the court could meet if it eliminated needless delays.

"If our side wins, we can get back to having a death penalty that actually works and really see some executions being carried out," probably before the end of this year, said Scheidegger, who will argue in defense of the measure along with Attorney General Xavier Becerra's office at the hearing in Los Angeles.

Rayburn said an unrelated federal court case would probably delay any executions in California by at least six months, even if Prop. 66 were upheld. If the court overturns most or all of the initiative, executions will remain on hold for a year or longer as challenges to proposed new lethal-injection procedures work their way through state and federal courts.

A ruling is due within 3 months.

Prop. 66 passed with 51 % of the vote on the same November ballot in which a rival measure to repeal the death penalty in California was rejected by about 7 % points, nearly twice the margin of defeat for a similar measure in 2012. While the votes were close, the message seemed clear: Californians want the death-penalty law enforced.

But the far-reaching provisions of Prop. 66, which received little attention during the campaign, have evidently raised concerns among the justices, who put the measure on hold while they consider a lawsuit seeking to overturn it. The suit was filed by the late John Van de Kamp, a former state attorney general, and Ron Briggs, a former El Dorado County supervisor whose father, the former Southern California state Sen. John Briggs, sponsored a 1978 initiative that established the current death-penalty law.

Even before a federal judge halted California executions in 2006 by citing flaws in injection procedures, equipment and staff training, death-penalty appeals in the state were taking 20 years or more.

About 1/2 that time is typically spent in the federal courts, which consider constitutional objections to state death verdicts and are beyond the reach of state initiatives. But some of the delay is due to heavy state court workloads and a shortage of qualified lawyers who are willing to take the cases.

In addition to imposing a deadline on the time the state Supreme Court takes to review a death row inmate's appeal, Prop. 66 would apply the same 5-year limit to state courts' review of the 2nd-stage appeals known as habeas corpus. Those usually involve such post-trial claims as incompetent legal representation and misconduct by the prosecutor or jurors, and have often been the basis for federal court rulings overturning California death sentences.

The initiative doesn't say what would happen if the courts missed their deadlines.

Habeas corpus challenges are now filed directly with the state Supreme Court, but Prop. 66 would redirect them to the Superior Court judge who conducted the trial, and would shorten the filing deadline from 3 years to 1 year.

Scheidegger said the change would free the state's high court to concentrate on appeals and handle them more quickly. But Rayburn said Prop. 66, while providing no additional court funding, would simply shift more work to already overburdened Superior Courts in the handful of counties - Los Angeles, Orange, San Bernardino and Riverside - that issue most of the state's death sentences.

She also argued - though Scheidegger disagreed - that the state Constitution requires all death-penalty appeals, including habeas corpus cases, to be filed directly with the state Supreme Court.

Another provision of the measure seeks to expand the pool of defense lawyers by requiring attorneys to take capital cases if they already accept court appointments to represent defendants in other criminal cases.

Supporters say the change would ease the shortage of available lawyers, 1 of the chief reasons appeals take so long. Opponents say it would put condemned inmates' fates in the hands of unqualified lawyers and prompt many lawyers to refuse future assignments.

Prop. 66 would also speed up the state's switch from 3-drug executions, in use from 1996 to 2006, to lethal injections of a single barbiturate.

Gov. Jerry Brown's administration proposed procedures for 1-drug executions last year in settlement of a lawsuit by relatives of murder victims. Prison officials are still reviewing those procedures under a long-standing law that requires them to consider public comments. The commenters have included organizations that say the proposed drugs are untested in executions and the procedures are unreliable.

Prop. 66 would allow the state to enact the 1-drug procedures without considering public comment, though opponents could still object in court.

2 of the court's 7 justices, Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, have removed themselves from the case because they are members of the state's Judicial Council, a defendant in the lawsuit by Van de Kamp and Briggs. Their replacements are 2 randomly selected appeals court justices, Andrea Hoch of the Sacramento court, an appointee of Gov. Arnold Schwarzenegger, and Raymond Ikola, appointed to the court in Santa Ana by Gov. Gray Davis.

The case is Briggs vs. Brown, S238309.

Source: San Francisco Chronicle, June 5, 2017

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