Both Sides Point to Death Penalty Decision of 1972

California’s Supreme Court justices, realizing the reaction would be severe, took the explosive step 14 years ago this month of declaring the death penalty unconstitutional. It was the first time any American court had done so.

Conservative politicians led the rush to overturn the decision and reinstate capital punishment. Today, some supporters of Chief Justice Rose Elizabeth Bird contend, the reaction against that ruling continues--in the form of a campaign to oust Bird, who has voted to reverse every death penalty case to come before her.

“The current chief justice,” said Anthony Murray, Bird’s campaign committee chairman, “inherited a good deal of that conservative animosity against any court or judge who would tamper with the death penalty.”

Some court critics also see the 1972 decision as a symbol--one that for the first time showed that the court was out of touch with many people’s attitudes toward crime. Polls indicated more than half the people supported the death penalty.

‘Court Out of Control’

“People began to wake up to the fact that the court was out of control,” said Christopher Heard, who directs the conservative Criminal Justice Legal Foundation in Sacramento.

“That ruling sits as a symbol for the dissatisfaction with the court’s record across the board on law enforcement issues.”

Bird’s critics scoff at the claim that the past ruling justifies the current court’s record on the death penalty, maintaining there are key differences.

Critics say the biggest difference is that in 1972 the court had the authority to declare capital punishment unconstitutional. Today’s justices continue to reverse death cases, even though the U.S. Supreme Court has declared capital punishment to be constitutional and the state Constitution was amended to allow it.

“That’s the problem. The court (today) treats the death penalty as if it were unconstitutional by setting up impossible procedural standards,” said UC Berkeley professor Phillip E. Johnson, a Bird critic. “They attempt to do indirectly what they can no longer do directly.”

A look back at the 1972 ruling, based on interviews with some of the justices and lawyers involved, shows other key differences--chiefly, that the ruling came amid a swirl of opposition to the death penalty, quite unlike the atmosphere now.

Polls then reflected waning support for the death penalty. Support began building after the 1972 ruling. That trend continues today, as more than 70% of the people in this state favor capital punishment.

Then, as now, defense lawyers pressured the court with innovative legal arguments, which made death cases more complex. That development began in the mid-1960s when a group of death penalty abolitionists, led by the NAACP Legal Defense Fund, embarked on a concerted effort to end capital punishment.

Getting the California Supreme Court to rule on the constitutionality of the death penalty was key to that plan. The most populous state, California had executed 502 people since becoming a state and also had the biggest Death Row population. Then-Gov. Ronald Reagan had vowed during his gubernatorial campaign to see that death judgments were carried out.

At the same time, death penalty opponents thought they had a good chance of victory in California because the state had the most influential--and probably most liberal--Supreme Court in the nation.

“It was felt that if progress could be made in California toward abolition, that would further isolate the Southern states, where most of the executions took place,” said Northeastern University law professor Michael Meltsner, author of a 1973 book “Cruel and Unusual.”

As momentum built against capital punishment, attention focused on a what appeared to be a relatively unremarkable case of Robert Page Anderson. A window cleaner by trade, Anderson was sentenced to death for murdering a jewelry store clerk and wounding three others in a foiled robbery in San Diego.

A young lawyer, Jerome B. Falk, fresh from a clerkship with U.S. Supreme Court Justice William O. Douglas, took Anderson’s case for the appellate experience.

Falk lost the case at first, as the Supreme Court affirmed Anderson’s death sentence. But with the Legal Defense Fund’s help, Falk pressed Anderson’s case further, claiming capital punishment violated the state Constitution’s prohibition against “cruel or unusual” punishment.

Narrowest of Margins

In November, 1968, 19 months after the state’s last execution, the court reversed Anderson’s own death sentence, but shocked many lawyers by ruling by the narrowest of margins that the death penalty was constitutional.

“I thought that would put all the attacks to rest,” retired Justice Louis Burke, 81, a conservative and one of three justices on that court still living, said in an interview. Burke had written in the 4-3 opinion that it was the job of the Legislature, not the court, to abolish the death penalty.

But the matter was not put to rest. In fact, pressure increased. Death Row’s population grew steadily. A jury resentenced Anderson to death. Sirhan Sirhan, Sen. Robert F. Kennedy’s assassin, and Charles Manson and his followers, convicted in the slayings of actress Sharon Tate and others, arrived on Death Row. But the possibility of any executions became ever more remote, in part because of sweeping U.S. Supreme Court decisions which gave more rights to criminal defendants and required numerous retrials.

The pressure intensified unexpectedly in 1970. Then Gov. Reagan, a staunch death penalty supporter, appointed Donald Wright as chief justice. Wright came to the court with a reputation of being a bright judge and excellent administrator, one who had two decades of experience as a Los Angeles Superior Court judge and Court of Appeal justice.

He also was a lifelong Republican, appointed by a conservative governor. So veteran justices assumed he would be conservative. But they quickly realized that Wright, unknown to the governor, adamantly opposed capital punishment.

“He thought it was cruel, inhuman punishment, that it served nothing, that it tended to extend barbarism,” Burke said of Wright, who died last year.

As far as Burke was concerned, there was nothing particularly wrong with executing a murderer. But the death penalty did create considerable problems for the courts.

“The majority of court,” Burke said, “searches each case with the view toward finding some way to reverse it. This is wrong. This is straining the law. So the best thing to do (was) to get rid of it.

“Like a cancer, cut it out.”

Burke would have to change his position dramatically. And as he saw it, “There was some Western logic that a man should be permitted to shoot his own horse, so I should write the opinion reversing myself.”

Logic for Wright’s Authorship

“But there was much more reason for Wright to do it,” Burke added, explaining that by authoring a major landmark opinion, the newly appointed Wright could demonstrate that he had sway on the court.

There was, however, a problem with that. Justice Stanley Mosk, the one Wright-era justice who remains on the court, recalled a conversation among the justices:

“We all said to him, ‘Look Don, you were appointed by Gov. Reagan. We know his attitude on the death penalty. We’ll spare you the embarrassment of putting this out. One of us will be glad to do it, or we can put it out (unsigned) by the court and nobody will know who the author is.’

“ ‘No, those are my views. I’m going to stand up and be counted,’ ” Mosk recalled Wright saying.

“I must say, I gained great respect for him because of that.”

Once the court decided to act, it moved quickly. Calls went out to lawyers in December, 1971, telling them to prepare to argue the case the following month.

The time was so short that Ronald George, then in charge of death penalty appeals for the state attorney general, did not have time to write an original brief. He submitted one that he had written for the U.S. Supreme Court, which also was considering the constitutionality of capital punishment.

On Feb. 18, 1972, the decision came out. Reached on a 6-1 vote and written by Wright, the ruling said the death penalty “degrades and dehumanizes all who participate in its processes.” The ruling was based on the state constitutional prohibition against “cruel or unusual” punishment.

Most importantly, Wright concluded, “contemporary standards of decency” had changed so that the death penalty had become obsolete.

“Were the standards of another age the constitutional measure of ‘cruelty’ today, whipping, branding, pillorying, severing or nailing ears and boring of the tongue . . . might escape constitutional proscription, but none today would argue that they are not ‘cruel’ punishments,” Wright wrote.

With that single ruling, 107 convicted murderers on Death Row, including Sirhan and Manson, received life sentences. Only conservative Justice Marshal McComb dissented.

‘Counted Noses’

California’s justices assumed that the U.S. Supreme Court would uphold capital punishment. “We just sort of counted noses,” Mosk recalled, noting President Richard M. Nixon’s appointees had shifted the federal court toward a more conservative view.

In June, 1972, the U.S. Supreme Court struck down death penalty statutes in every other state, finding that they gave no guidelines to jurors for imposing death. One federal justice wrote that receiving a death sentence was like being struck by lightning.

But there was no consensus among the federal justices that the death penalty violated the U.S. Constitution’s prohibition against “cruel and unusual” punishment. Thus, the way was left open for states to draft new laws.

In California, meanwhile, Wright’s perception of contemporary standards was proving wrong. Gov. Reagan reacted by saying he was “deeply shocked” by the ruling. The governor said Wright’s appointment was a major mistake.

In November, 1972, voters passed a constitutional amendment sponsored by then-Sen. George Deukmejian that overturned the Wright court’s death penalty decision. The amendment, passed with 67% of the vote, allowed the death penalty so long as the federal courts would permit it.

To implement that amendment, Deukmejian sponsored a new death penalty statute. It went into effect in 1974. The lawmakers tried to comply with the U.S. Supreme Court decision by setting up rigid standards for jurors to use in deciding whether to execute someone. Jurors were required, for example, to return death sentences against anyone convicted of a murder that was committed during another felony.

The statute was doomed. In 1976, the U.S. Supreme Court modified its earlier ruling by saying that jurors had to have some discretion in deciding a convicted murderer’s fate--a chance to show mercy no matter how heinous the crime.

Citing the federal rulings and again led by Wright, the California court unanimously struck down the new law in December, 1976. The roughly 65 people then on Death Row received life sentences.

But in his last major opinion, Wright, realizing voters and legislators wanted the death penalty, not only left the way open for a new law to be written but provided a blueprint for a capital punishment statute that would be constitutional.

Among other things, the court said such a statute would have to give juries discretion in deciding whether to impose the death penalty.

Bird Replaces Wright

Wright retired shortly afterward, and was replaced by Bird. Sen. Deukmejian drafted a new death penalty statute. Overriding the veto of Gov. Edmund G. Brown Jr., the Legislature passed it in 1977.

The state constitutional amendment, created by Deukmejian’s 1972 initiative, remains in the California Constitution--in a section of the document that is the equivalent to the U.S. Constitution’s Bill of Rights.

For her part, Bird, who has voted to reverse all 55 death cases to come before her, calls the argument that her court is “soft” on the death penalty “ridiculous.”

“The reality,” she said, “is that a previous court abated a large number, somewhere in the 170s . . . We’ve never done that. Does that make us hard on the death penalty and them soft?”