Death Penalty Moratorium on the Table

State legislators in early January will consider what is likely to be a contentious proposal to postpone executions for as long as three years.

On Jan. 10, an Assembly committee plans to consider legislation that would place a moratorium on executions until a special commission finishes examining whether California’s criminal justice system allows innocent people to be convicted.

The bill, the first of its kind in Sacramento in more than a decade, faces substantial political and legal hurdles. Its hearing -- scheduled long before convicted killer Stanley Tookie Williams’ execution Tuesday -- comes as the state is poised to perform a record number of executions in the coming year.

The California Commission on the Fair Administration of Justice, created by the state Senate last year, is studying the extent to which people have been wrongly convicted of crimes. The commission, composed of people on all sides of the issue, was charged with suggesting improvements to lawmakers by the end of 2007.

Among the topics the panel is set to look at are the frequency of police suppression of exculpatory evidence, and false testimony from witnesses and jailhouse informants.

“There’s a half a dozen issues that are recurring in exoneration cases,” said Jon Streeter, a San Francisco business trial lawyer who is chairman of the panel. “We see them time and time again. They tend to arise in death penalty cases, where the problems can be the most serious.”

Five Democrats have proposed the moratorium until either the Legislature “has fully considered” the panel’s suggestions or, if lawmakers take no action, Jan. 1, 2009.

The legislative debate and commission’s work will probably revive some of the emotional topics that the Williams case evoked, including whether the death penalty has a racial bias and what degree of certainty is necessary before ending a life.

Death penalty proponents, however, say they will vigorously oppose any delay.

“This is the most liberal Legislature in the country,” said Sen. Tom McClintock (R-Thousand Oaks). “I would not be the least bit surprised if it adopted a moratorium or even attempted to rescind the death penalty entirely. But if they do, they’ll have a fight on their hands.”

The debate comes at a time when Californians are firmly in favor of capital punishment, although that support is nuanced.

A Public Policy Institute of California survey in February 2004 found that 57% of the electorate supports the death penalty. But when given the choice between having first-degree murderers executed or jailed for life without chance of parole, support for the death penalty dropped to 38%.

The Field Poll found that support for the death penalty in the state has dropped from 83% in 1986 to 68% last year.

The moratorium’s lead sponsor, Assemblyman Paul Koretz (D-West Hollywood), said that despite all the attention, Williams’ case is too ethically cloudy to serve as the impetus for a moratorium.

“He’s hardly the poster child for these kind of cases,” Koretz said. “There are people who are pure as the driven snow who are on death row. This is a case that goes off in so many different directions that it’s almost a distraction.”

Since 1981, six death row inmates have had their convictions overturned, according to opponents of capital punishment. The most recent was Oscar Lee Morris, convicted of a Long Beach slaying but freed in 2000 after an accuser admitted he had made up the case to help him plea bargain in his own criminal proceeding.

California has 647 people on death row, more than any other state. Twelve have been executed since the death penalty was reinstated in 1978.

State officials estimate that two to five executions will be scheduled in 2006.

Streeter said that while the commission does its investigation, “I see no reason to dive into a series of executions.”

The panel’s 13 other members include Los Angeles County Sheriff Lee Baca and state Atty. Gen. Bill Lockyer, as well as prominent victims advocates, public defenders, prosecutors, death penalty opponents and academics.

Lawmakers in Sacramento began pressing to reexamine the death penalty after Illinois’ governor in 2003 commuted the sentences of all prisoners on that state’s death row amid evidence of unjust convictions, some exposed through advances in DNA evidence. That state’s moratorium is still in effect. New Jersey, New York and Kansas have judicially imposed moratoriums in place based on flaws found in the state death penalty laws.

But there are many hurdles before executions could stop in California. Legislators cannot overturn the state’s death penalty law on their own because it was approved by voters, and moderate Democrats are expected to be tough sells on the measure.

“I don’t know that a moratorium is going to see passage in the Assembly in an election year,” said Sen. Gloria Romero (D-Los Angeles), a death penalty opponent.

A number of the most influential lawmakers strongly oppose the death penalty. Senate President Pro Tem Don Perata (D-Oakland) urged Gov. Arnold Schwarzenegger to grant clemency to Williams, writing that the death penalty unfairly is assigned to the poor and ethnic and racial minorities. A study published in the Santa Clara Law Review earlier this year concluded that murderers of Caucasians in California during the 1990s were far more likely to be sentenced to death than those who killed blacks or Latinos.

Sen. Chuck Poochigian (R-Fresno), a candidate for attorney general, said the fact that death row inmates in California have been freed shows that there already are adequate legal safeguards in place. “Every one of the death penalty cases that reaches conclusion has been the subject of exhaustive judicial review, typically with appeals to the highest courts,” he said.

Still, last year’s Field poll found that 31% believe that the death penalty has not always been implemented fairly and without error.

Among those invited to testify before the Assembly Public Safety Committee next month in favor of Koretz’s bill, AB 1121, is Donald Heller, a Sacramento attorney who wrote California’s original death penalty initiative. A former prosecutor, Heller said he has since come to believe application of the death penalty cannot help but be discriminatory and erroneous.

He said that the graphic details of execution -- such as the 12-minute difficulty prison officials had in finding a suitable vein in Williams’ arm for the lethal injection last night, while the condemned man winced in pain -- might turn more people away from it.

“What occurred in San Quentin last night was in my view somewhat grotesque,” Heller said Tuesday. “Maybe what they should do is televise executions.”