If a November ballot measure to speed up executions goes into effect, the California Supreme Court will have to decide hundreds of death penalty appeals in rapid succession.
That mandate would turn the state’s highest court into what analysts say would be “a death penalty court,” forced for years to devote about 90% of its time to capital appeals.
Proposition 66, sponsored by prosecutors and passed by 51% of voters, gave judicial leaders 1½ years to make new legal rules and then five years to decide a crushing backlog of appeals.
“Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder,” said Jon Eisenberg, president of the California Academy of Appellate Lawyers.
Legal analysts and four bar associations say the measure would inundate all the courts with extra work but hit the top court’s seven justices hardest.
In a friend-of-the-court brief, 11 law professors and a nonprofit legal center contended Proposition 66 would “grind the wheels of justice to a halt” in California.
Death penalty advocates acknowledge the measure would mean extra work for the courts, but say that it is necessary to fix a system that has produced the largest death row in the country and no executions in more than a decade.
They contend the workload will be tolerable, and that the courts will have some flexibility in meeting the deadlines.
The California Supreme Court is considering whether the measure can go into effect.
Two opponents of the measure sued in November, contending it illegally usurped the powers of the judicial branch and violated a constitutional rule that says ballot measures must deal with one subject only.
The California Supreme Court put the measure on hold until the justices resolve the case, probably within the next few months.
The appellate lawyers’ academy takes no position on the death penalty but opposed the initiative on the grounds that it would disrupt the courts and prevent litigants in civil matters from having their cases decided in a timely manner.
It joined the bar associations of Los Angeles, Beverly Hills and San Francisco in a January letter written to the state Supreme Court saying that Proposition 66 “threatens to deal a mortal blow” to California’s courts.
California law guarantees each death row inmate both an automatic appeal to the California Supreme Court and a separate habeas corpus challenge.
The direct appeal is based on what happened at trial. The habeas raises issues that were not reflected in the trial transcript, such as newly discovered misconduct by jurors or prosecutors.
The California Supreme Court has been unable to keep pace with these cases.
Given a backlog of more than 300 death penalty appeals already at the court, the justices would have to decide at least 66 of them each year for the next several years just to catch up, Eisenberg said.
Calculations based on the court’s typical annual production indicate the justices would be spending 90% of their time on capital cases, Eisenberg said. Civil case rulings would decline from about 50 a year to just a handful, he said.
“That leaves virtually no time for anything other than death penalty cases,” Eisenberg said.
Lower courts, as well as the California Supreme Court, would be disrupted, the bar associations said.
The measure would require Superior Court judges to appoint lawyers to handle habeas corpus challenges and to decide those cases quickly.
The letter noted that 110 condemned inmates from Los Angeles County would have to be given lawyers within a year. The clock would start once the Judicial Council, the policymaking body for the court, establishes rules to implement the initiative.
“We are not aware of there being 110 qualified capital habeas corpus practitioners within the Los Angeles County area,” the letter said.
Kirk C. Jenkins, an appellate lawyer who studies and writes about the California Supreme Court for the law firm Sedgwick LLP, said the bar associations were right.
“The time limit that is built into Prop. 66 is completely unworkable, and that is not a matter of one’s position on the death penalty,” Jenkins said. “It is simply unworkable.”
The only way to meet the deadlines of Proposition 66 would be for the court “to get out of the business of deciding civil cases” at least for several years, Jenkins said.
UC Berkeley's David A. Carrillo, director of a center that studies the California Constitution, described the initiative as a new unfunded mandate.
"There is no way the courts can get through the existing backlog in five years with their current resources," Carrillo said.
Law enforcement groups have filed several friend-of-the-court briefs in favor of the initiative, arguing that voters have made their will clear.
“California voters have elected to retain the death penalty every time the issue has been placed before them,” the leaders of several county prosecutor groups reminded the court in one brief.
The lawsuit against the measure named the Judicial Council as a defendant, forcing Chief Justice Tani Cantil-Sakauye and Justice Ming W. Chin to recuse themselves from the case. The chief justice heads the council, and Chin serves on it.
Two of the five other justices will appear for confirmation on next year’s statewide ballot: Justice Carol A. Corrigan, one of the more conservative members, and Justice Leondra Kruger, appointed by Gov. Jerry Brown two years ago.
California voters have voted down justices on the ballot only once. The issue was the death penalty.
“Despite the abiding and long-standing will of the voters, death penalty opponents have used the legal process as a mechanism to frustrate imposition of the death penalty,” the prosecutors argued in their brief.
Lawyers on both sides of the debate expect the court to hold a hearing on the case. Two justices from intermediate courts of appeal likely would be asked to fill in for the recused justices
Kent Scheidegger, who helped write Proposition 66, said the portrait of court chaos predicted by the bar associations and some analysts was overblown.
Although the measure would require the California Supreme Court to move quickly to dispatch the backlog of capital appeals, the initiative would also shift initial responsibility for habeas challenges from the high court to trial judges, he noted.
That provision, Scheidegger argued, would save the court time.
Rulings by Superior Court judges on those cases would likely be appealed to intermediate appellate courts and up to the state Supreme Court, but Scheidegger said the trial judges would do the heavy lifting.
“I know that all judges hate time limits, but I do think that moving the habeas cases is a reform that most of the justices probably would agree with,” said Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for the death penalty.
Even if the Supreme Court were to strike down the measure’s deadlines, other requirements of the initiative would still speed up executions, he said.
He cited a provision that would limit public review of the state’s lethal injection method. Legal challenges involving the method have kept the execution chamber empty since 2006.
Eighteen inmates who have exhausted their appeals could be executed immediately once that part of the initiative took effect, he said.
Former El Dorado County Supervisor Ron Briggs and the late former Atty. Gen. John Van de Kamp, who filed the lawsuit, argued that the entire measure should be tossed because it violated the rule limiting initiatives to a single subject.
In addition to setting new deadlines and easing approval of an execution protocol, Proposition 66 would require death-row inmates to work to pay compensation to victims’ families and bar medical associations from disciplining doctors who participate in executions.
It also would place a state agency assigned to represent death row inmates under California Supreme Court control and permit the corrections department to distribute condemned inmates among the general prison population.
The law says a measure’s provisions must be “reasonably germane” to the purpose of the initiative.
Polls show support for the death penalty in California has declined since 1986, when voters ousted the late Chief Justice Rose Bird and two colleagues after a campaign that charged they were not enforcing capital punishment.
Still, voters narrowly rejected a 2012 ballot measure to abolish capital punishment and turned down a similar initiative in November, with 53% of voters opposed.