A Cure for the Court’s Death Row Burnout : Justice: Accept appellate judgment on nitty-gritty aspects, leaving only the sentence itself for review by the Lucas Court.

The premature retirement of Justice Marcus A. Kaufman should provoke a hard look at the crushing caseload of the California Supreme Court. Kaufman is cashing in after less than three years on the court. Earlier this year, Justice John Arguelles retired after only two years. For the half a century up to 1987, the average tenure of California Supreme Court justices was 13.1 years. The accelerating turnover rate is unsettling for a court that is still feeling the effects of the electoral landslide of 1986 that swept three justices out of office.

Clearly, the heaviest burden on the justices is created by the rush to pare down the death-penalty backlog. In less than three years, the court has reviewed 85 such judgments, 21 more than the Bird Court reviewed in its entire seven years. Death-penalty cases now represent 39% of the court’s published output, compared to 11% during the Bird era. Despite this effort, new death-penalty judgments have kept the backlog of cases exactly where it was when the new justices took office. Much of the frustration inspiring early retirements is attributable to seeing so much effort produce so little impact.

It is time to seriously rethink the procedure by which all death penalty judgments are automatically reviewed in their entirety by the state Supreme Court.

At present, the court must review all three determinations made by a jury in a death case: the verdict of guilty of first-degree murder, the finding of special circumstances and the choice of the death penalty over life imprisonment without possibility of parole. The first two determinations could just as well be reviewed at the level of the intermediate Courts of Appeal. In fact, the record of the Lucas Court in reviewing these determinations closely tracks the record of the Courts of Appeal in the criminal cases they currently review. The Court under Chief Justice Malcolm Lucas has affirmed the verdict of guilty of first-degree murder in 93% of the cases they have reviewed; more than 90% of these affirmances were unanimous. The affirmance rate for criminal cases reviewed by the Courts of Appeal is precisely the same: 93%.

In reviewing the determination of special circumstances, the Lucas Court has an even higher affirmance rate of 99%, which also closely tracks the record for the Courts of Appeal. The intermediate courts currently review such findings when a sentence of life without possibility of parole was imposed.

Shifting the review of these issues down a rung could provide substantial relief to the high court. The load would be dispersed among 18 divisions and districts, and the record would arrive at the Supreme Court with the issues clarified and the factual disputes clearly delineated. The Supreme Court could then focus its entire attention on the aspect that truly makes death-penalty cases different: the choice of the penalty.

The Lucas Court at present is affirming the choice of death in 78% of the cases. While this rate is substantially higher than the national average, it is important that this final determination not be dispersed among many different courts applying varying standards. The consistent application of the same standard of “harmless error” and proportionality of punishment is essential. By freeing the court of the drudgery of reviewing dozens of guilt and special-circumstances issues in every case, the review of the crucial choice of death will be not only more expeditious and efficient, but it also will be more focused and consistent. The time that the Supreme Court saves would allow it to resume a more active role in reviewing civil and non-death criminal cases.

Introducing two tiers to the review process would not significantly increase delay for the vast majority of cases. The longest period of delay is in certifying the trial transcripts. Once a case is processed through an appellate court, the Supreme Court could undertake review immediately. Cases reversed by the Courts of Appeal would go back to the trial courts. Dispersing cases among the Courts of Appeal could eliminate the current backlog. Habeas corpus petitions, which now double the death-penalty load for the high court, would also be heard by the Courts of Appeal. The only cases that might be delayed longer would be those in which the Supreme Court exercised its discretion to review the guilt or special-circumstance determination a second time.

The greatest advantage in this proposal is that it provides a full and fair review of death-penalty judgments without exhausting the justices of the Supreme Court in the process. The great reputation that the court has acquired during the past half a century is largely attributable to the long tenure of its most outstanding justices. If death-penalty burnout creates a revolving door on California’s Supreme Court, we will all be losers.