California’s death penalty costs taxpayers $150 million a year. The average appeal of a death sentence, when considered by state and federal courts, takes more than 30 years to resolve. Blacks make up 6.5% of the state’s population and 35% of its condemned inmates. Jurors in capital cases are disproportionately white, due in part to a selection process that excludes death penalty opponents.
Since enacting its current death penalty laws in 1977 and 1978, California has executed 13 prisoners — none since 2006 — while 156 condemned inmates have died of other causes.
Those findings come from the Committee on Revision of the Penal Code, established by law last year to recommend changes in the criminal law of a state with the nation’s largest prison system and most populous Death Row. Its latest report calls for repeal of the death penalty, an option California voters considered and narrowly rejected in 2012 and 2016.
Capital punishment in California is “imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional,” the committee said. “California’s system for capital punishment is beyond repair.”
Short of abolition, which would require voter approval, the committee recommends lowering the number of condemned prisoners, now 697, by removing mentally disabled inmates from Death Row and encouraging Attorney General Rob Bonta and county district attorneys to reduce death sentences to life terms in appropriate cases. Bonta testified to the committee and indicated he would consider reducing death sentences he considers excessive.
The committee also proposed broadening a new state law that would make it harder for prosecutors to remove prospective jurors for such reasons as their opinions about police, their neighborhoods, their physical appearance or their opposition to the death penalty, rationales that are often used against racial minorities. The law is scheduled to take effect in January, but the committee wants lawmakers to expand it to earlier cases.
And the panel, whose six members include four appointed by Gov. Gavin Newsom, is urging Newsom to use his clemency power to commute at least some death sentences to prison terms. Newsom, an avowed opponent of the death penalty, declared a moratorium on executions after taking office in 2019 but has not sought clemency for any condemned inmates.
He would need approval from a majority of the state Supreme Court to commute the sentence of anyone who has been convicted of felonies in two separate cases, which applies to most of Death Row. The court said in March 2018 that it would generally defer to the governor’s judgment in such cases, rejecting clemency requests only when they were an “abuse of power.” But later that year, the court, without public explanation, denied 10 clemency applications by then-Gov. Jerry Brown, who did not seek any Death Row commutations.
Clemency is “a difficult question — how do you do it fairly? Who’s the most deserving?” the Newsom-appointed committee chairman, Michael Romano, a Stanford Law School lecturer and former director of the school’s Criminal Defense Clinic, said in an interview. It is, he added, “a fail-safe when there’s no other alternative,” such as outright repeal of the death penalty.
And repeal will not win voter approval without support from the state’s political leaders, said Assembly Member Marc Levine, D-San Rafael, author of ACA2, a proposed ballot measure to reduce the state’s maximum sentence to life in prison without parole. Like a similar proposal by Levine in 2019, the measure has yet to receive a committee hearing.
“Until our statewide leaders call for this (repeal), this death penalty report will just lay collecting dust,” said Levine.
But Bonta, who as an Assembly member cosponsored Levine’s proposed ballot measure in 2019, suggested he might take action to remove some inmates from Death Row.
He told the committee that he has established a Post-Conviction Justice Unit to examine wrongful convictions and “excessive sentences” for possible intervention by his office. Asked whether the unit would examine existing death sentences, Bonta’s office told The Chronicle that its intention was “to review cases where there have been miscarriages of justice, irrespective of the punishment.”
That has already happened in Los Angeles County. George Gascón, the former San Francisco district attorney elected chief prosecutor of the state’s most populous county last year, has agreed to resentence four condemned inmates from the county to life in prison, after finding they were mentally disabled, and is considering others. Gascón has also withdrawn his office’s 17 pending capital prosecutions and stopped seeking death sentences in Los Angeles County, which has led the state in capital cases.
San Francisco District Attorney Chesa Boudin likewise does not ask juries to impose death sentences, continuing the policies of his predecessors since 1996.
The state Supreme Court declared California’s death penalty law unconstitutional in 1972, but the voters overwhelmingly amended the state Constitution later that year to authorize capital punishment and approved the current death penalty law in 1978, an action that would require another public vote to overturn.
Following the defeat of two repeal initiatives, Propositions 34 in 2012 and 62 in 2016, next year is probably too early for another ballot measure, said attorney David Rohde, a board member of the anti-capital punishment group Death Penalty Focus. “It will require a huge amount of fundraising and public support,” he said.
While rejecting Prop. 62, voters in 2016 approved Prop. 66, whose sponsors said it would speed up executions. But the state Supreme Court rejected its most far-reaching provision, which would have required the court to decide all death penalty appeals within five years. And Chief Justice Tani Cantil-Sakauye told Romano’s committee that the measure “has not sped up anything” — and in fact may have slowed proceedings down — by requiring defendants to file later rounds of death penalty appeals in county trial courts rather than directly in her court.
In response, Kent Scheidegger, author of Prop. 66, said the measure has been undermined by the state’s high court and the Judicial Council, also headed by Cantil-Sakauye.
Whenever the next vote occurs, Newsom will probably set a precedent with his position. As lieutenant governor he endorsed both Props. 34 and 62, but then-Gov. Jerry Brown, a lifelong opponent of the death penalty — in 1960 he unsuccessfully pleaded with his father, Gov. Pat Brown, to spare the life of rapist Caryl Chessman — remained publicly silent on the two recent ballot measures.
Last year Newsom became the first California governor to file legal arguments against the death penalty, telling the state Supreme Court it was applied in a racist manner against African Americans and that juries should be required to agree beyond a reasonable doubt that death was the proper punishment. The court rejected his arguments and left the law unchanged.
Asked about the committee’s latest report calling for death penalty repeal, and for clemency and other measures in the interim, Erin Mellon, a spokesperson for Newsom, said only that “we look forward to reviewing and examining the recommendations.”
Even if none of those changes becomes law, death sentences are on the decline in California, as they are in most of the 27 states with death penalty laws.
In 2010, the report said, 34 people were sentenced to death in California. There were five in 2020 and three so far this year. All eight, the report noted, were Latino.
, Bob Egelko, December 5, 2021.
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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
