California's death penalty speed-up is about to be undercut on a case-by-case basis. Here's why.

The California Supreme Court's decision upholding Proposition 66, the initiative to speed up the imposition of the death penalty, fails two basic requirements of good judicial rulings: It ignores the language of the law and it ignores reality.

Instead of resolving the matter by invalidating an initiative that is unconstitutional and unworkable, it will lead to a great deal of confusion and future litigation.

It should have been an easy case: What the law requires is clearly unconstitutional.

Proposition 66 says that courts "shall complete the state appeal and the initial state habeas corpus review in capital cases" within 5 years. The word "shall" in a law always means that it is imposing a requirement.

Indeed, all 7 justices agreed that the "statute is framed in mandatory terms, and the voters were told in the ballot materials that the 5-year limit on the post-trial review process would be binding and enforceable." Moreover, all seven of the justices also agreed that it violates separation of powers for a law to compel that courts complete their decision-making process within a specified period of time.

As Justice Goodwin Liu explained, "All members of the court agree that if the 5-year limit were mandatory, it would undermine the courts' authority as a separate branch of government." That should have made this an easy case: What the law requires is clearly unconstitutional.

Instead, in a 5-2 decision, the California Supreme Court did what courts are not supposed to do. It rewrote the initiative so that the 5-year limit is not mandatory, but just "directive" and "an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice."

Perhaps, though doubtful, this could be justified if it made any sense to have a "directive" or an "exhortation" to do this. But it doesn't because Proposition 66 does not begin to solve the causes for death penalty delays in California.

There simply are not enough lawyers qualified to handle death penalty cases. As U.S. District Court Judge Cormac Carney noted, in California, on average it takes 3 to 5 years after a death judgment to appoint appellate counsel. As Justice Liu observed, "in April 2016, there were 49 capital defendants waiting for attorneys to be appointed for direct appeals and 360 capital defendants waiting for attorneys to be appointed for habeas corpus petitions. About half of those waiting for appointment of habeas counsel have been waiting for over 10 years." Proposition 66 does nothing to solve this. Appointing lawyers who are not qualified to handle complex death cases serves no one's interests.

Also, the structure of appellate review in death penalty cases - with review directly in the California Supreme Court - ensures lengthy proceedings. This process takes an average of 11.7 to 13.7 years after the trial court imposes a death sentence and many cases take much longer to resolve.

Proposition 66 does nothing to solve this either: It does not increase the number of courts hearing death penalty cases and the California Supreme Court cannot devote more time to these cases without neglecting its other constitutional responsibilities.

By not declaring Proposition 66 unconstitutional, the California Supreme Court has created great confusion. As Justice Mariano-Florentino Cuellar explained in his dissent, the Court's decision "by insisting the mandate be treated as both a mere 'exhortation' yet one 'not empty' of legal meaning - leaves in its wake grave uncertainty about the rules and standards the Judicial Council is supposed to adopt to render meaningful that exhortation."

This will lead to litigation in each death penalty case about what to do about the 5-year requirement, with courts making findings in every instance as to why it could not be met. Proposition 66 will be rendered meaningless on a case-by-case basis.

The death penalty is likely to remain for the foreseeable future. Prior to Nov. 8, I thought it might be eliminated in California by a voter initiative and by the U. S. Supreme Court once a more liberal justice replaced Antonin Scalia. But the voters rejected the initiative to abolish the death penalty and the election of Donald Trump means that there will not soon be a majority on the Supreme Court to declare the death penalty unconstitutional.

In confronting this reality, a society that has chosen to have the death penalty must do more to provide competent counsel and fair proceedings to ensure that we do not execute innocent individuals or those whose constitutional rights have been violated. The tragedy of Proposition 66 and the California Supreme Court's decision is that they do nothing in this regard.

Source: Sacramento Bee, Opinion, Erwin Chemerinsky, August 29, 2017. Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. 

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"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde