State Court Lets the Law Have Its Day

It is easy to read too much into last week’s California Supreme Court decisions reversing two of the Bird court’s death-penalty rulings. These recent decisions do not represent the beginning of a “blood bath,” as some defense attorneys’ groups have proclaimed, nor do they represent a court knuckling under to some public outcry for executions.

The Anderson and Gates decisions are more accurately seen as principled attempts by the justices to apply the law as they understand it. In the Anderson case, that law concerned the felony-murder and multiple-killings special circumstances that a jury must find in order to sentence a murderer to death. The issue was whether or not those guilty of felony-murder or multiple killings need to have intended to kill their victims in order to receive the death penalty.

The basic felony-murder rule can itself be very harsh, since it classifies accidental deaths as murder if those deaths are caused during robberies or other dangerous felonies. To add to that basic rule the provision that makes felony-murder a special circumstance allowing the death penalty to be imposed is doubly harsh. As a matter of policy, therefore, one can have some sympathy for the concern expressed by Justice Allen Broussard in dissent in Anderson, which was that, hypothetically at least, the death penalty can now be given to those who are not among the most seriously culpable of killers.

Yet the law governing this issue is pretty plain. The 1978 initiative provides for the death penalty when “the murder was committed while the defendant was engaged in . . . the commission of . . . robbery” (which was Anderson’s crime), with no mention of an intent to kill. Moreover, the whole purpose of such a felony-murder provision is to eliminate any inquiry into a killer’s mental state with respect to death; such a provision says to the criminal: “If you intentionally rob someone, and if the victim dies because of your actions during the robbery, you are guilty of first-degree murder and eligible to be put to death.” To read an intent-to-kill requirement into such a strict-liability provision contradicts its whole purpose.

True, the state Supreme Court under Chief Justice Rose Bird in 1983 had given the felony-murder provision just such a strained reading. Yet that reading could only be justified under the supposed compunction of the U.S. Supreme Court’s interpretation of the federal Constitution. As Justice Stanley Mosk points out in his majority opinion in Anderson, the U.S. Supreme Court has since 1983 clarified that nothing in the federal Constitution compelled the Bird court’s reading of the felony-murder special-circumstance law. Without constitutional compunction, the Bird court’s reading was clearly contrary to both the plain meaning of the law and its purpose, and thus was rightly overruled.

It is noteworthy that the court did not overrule another Bird court precedent. This was a 1984 ruling that had disapproved an instruction telling jurors that the governor could commute sentences of “life without possibility of parole” without also telling them that the governor could commute death sentences, too. It was on this basis that Anderson’s death sentence was reversed last week, even though Gates’ sentence was not, because no such instruction had been given in his case.

It is also noteworthy that the court left untouched in both of last week’s decisions the requirement that those who are not the actual killers, but only the accomplices to the actual killers, must have an intent to kill before they may be sentenced to death. This last distinction not only follows the language of the initiative (allowing a death sentence only to those accomplices who are “found guilty of intentionally aiding . . . or assisting any actor in the commission of murder in the first degree”) but also marks a significant difference in culpability between those who actually kill and those who only aid those who kill. It makes sense to require a more culpable mental state for accomplices (like getaway drivers) before they may be put to death, because they have engaged in less culpable actions than have those who actually do the killing.

This careful dissection of legal issues in death-penalty cases should be seen for what it is: an attempt by the majority of the court to apply fairly a law aimed at separating the most culpable killers who deserve a death sentence from those less culpable killers not deserving a death sentence. This attempt is being made by some justices, like Mosk, who surely disagree as a matter of policy with some of the lines drawn by the 1978 law.

Broussard is thus unduly cynical about the connection between judging and politics when in his dissent in Anderson he accuses the majority of yielding to partisan pressures in reaching their decision. Those who applaud last week’s decisions as “hearing the public” on the death penalty are guilty of the same mistake.

What these decisions reveal is not a court that is as ideological as was Chief Justice Bird on the death penalty (only with an opposite ideological bent); rather, what is revealed is a court with no hidden agenda one way or the other on death-penalty cases. This is a development that we all should applaud.