Court urges amendment to speed death penalty reviews

Times Staff Writer

The California Supreme Court on Monday called for a constitutional amendment to ease the backlog in the state’s death penalty system, which takes an average of 17 years to execute a condemned convict -- twice the national average.

The amendment would permit the state’s high court, which has had exclusive oversight of capital appeals since California became a state in 1850, to transfer review of some death penalty cases to lower courts. Chief Justice Ronald M. George, who announced the proposal, said he wanted the Legislature to put the amendment on the November 2008 ballot.

The system’s delays and ensuing backlogs are bad for the condemned inmates, prosecutors and the public interest “in finality and enforcement of the law,” George said in a phone interview Monday.


Currently, the state’s seven Supreme Court justices spend about 20% to 25% of their time and resources on capital cases, he said. The “ever-increasing backlog . . . threatens to overwhelm the Supreme Court’s docket,” George said.

The proposal follows a small but significant chorus of voices calling for change in what they describe as a “dysfunctional” system that renders capital punishment as little more than an illusion.

The state has the nation’s largest death row population, with 667 inmates -- 652 men at San Quentin and 15 women at the Central California Women’s Facility in Chowchilla -- but only a few have exhausted their appeals, which can last decades.

California has executed 13 inmates since capital punishment was reinstated in 1978. In the meantime, more than 50 condemned prisoners have died of old age, suicide or prison violence.

The state would have to execute five prisoners a month for the next 11 years to clear inmates now on death row. And the backlog is likely to grow: Thirty people have been on death row more than 25 years, 119 for more than 20 years and 408 for more than a decade.

However, the Supreme Court’s proposal drew immediate caveats and some opposition.


State Senate Majority leader Gloria Romero, a Los Angeles Democrat who is a death penalty critic, said she told George that the Legislature would give the proposal “serious consideration.”

However, she emphasized that if the state was going to amend the Constitution, officials should seize the opportunity to “make a comprehensive assessment of the fairness and adequacy of resources of the death penalty system in California.”

“If we are going to move forward on a major change in California, there has to be a lot on the table,” including the possibility of narrowing the criteria for seeking the death penalty so that fewer cases would qualify, Romero said.

Veteran federal appeals court Judge Arthur L. Alarcon, who urged a shift in death penalty appeals to lower courts in an influential law review article earlier this year, said he was pleased that his ideas were getting serious consideration.

He emphasized, however, that the state’s death penalty machinery was unlikely to work more effectively unless the state dealt with a critical shortage of defense lawyers to represent death row inmates on appeal.

“Without raising the pay for lawyers, without providing more funding to do adequate investigation” of the cases, “there are still problems,” said Alarcon, of the U.S. 9th Circuit Court of Appeals.

The proposal is expected to get its first public hearing on Jan. 10 at a meeting of the California Commission for the Fair Administration of Justice at the state Capitol. George and Alarcon are scheduled to speak at that session, and it is anticipated that other proponents and opponents also will be on the agenda.

Santa Clara University law professor Gerald Uelmen, the commission’s executive director, said he had serious concerns about the “tremendous impact” the proposal could have on the state-funded agencies that represent death row inmates. “They will need a lot more staff,” and that will be costly, he said.

George said he and the other justices have been wrestling with the backlog issue for months. He said change was needed because the Supreme Court’s resources had not expanded to match “the growing number of defendants sentenced to death in California.”

He said the California Supreme Court rules on about 20 death penalty cases a year. If the amendment passes, the Supreme Court would transfer about 30 capital cases a year to the state’s intermediate-level appellate courts, which are headquartered in Fresno, Los Angeles, Sacramento, San Diego, San Francisco and Santa Ana.

Currently, there are 105 state appeals court justices. If the plan is adopted, each would have to write a death penalty opinion once every 3 1/2 years, not a substantial increase in workload, George said.

The Supreme Court would retain those cases that involve a new legal issue or clearly would have statewide impact, while distributing others that could be resolved based on existing law.

George said the state Supreme Court had decided about 400 death penalty cases over the last 30 years. He said those rulings plus “numerous decisions” by the U.S. Supreme Court “have settled the vast majority of legal questions concerning capital litigation as presently practiced in California,” and would provide considerable guidance to the state appeals courts. The state high court would retain the right of final review, he said.

George acknowledged that the vast majority of the 38 states that have a death penalty statute provide for automatic direct review by the state court of last resort. But, he said, most of the states have relatively few death penalty judgments each year, and the cases “do not pose a substantial burden on those state supreme courts.”

Death penalty trials and records are substantially bigger in California, the briefing schedules stretch four to 10 times longer, and the reviewing court’s opinions are longer and consume more time and resources, George said.

James A. Ardaiz, the presiding administrative justice of the 5th District Court of Appeal in Fresno, said he thought that the proposal was “thoughtful” and “a recognition of the fact that under the current Constitution the Supreme Court has become so impacted it cannot effectively carry out the expectations of the public in terms of the efficient implementation of the law. I look forward to helping the court alleviate its backlog.”

Judith McConnell, chief administrative justice of the 4th District Court of Appeal in San Diego, said she believed that most of the chief appeals court justices “generally support the proposal provided that we are given adequate resources to handle the increased caseload.”

“The state Supreme Court has a central staff for death penalty appeals. It is my understanding that it takes a number of months for those staff attorneys to work the cases up” before the court considers them, McConnell said. “We would need additional staff.”

McConnell said she definitely had concerns about how the state Supreme Court would allocate the cases it transfers.

She said the appeals court in San Diego already was considering a number of appeals, involving other types of cases, from San Bernardino and Riverside counties, where court dockets have swelled significantly because of rapid population growth.

Staunch death penalty advocate Kent Scheidegger, of the Criminal Justice Legal Foundation in Sacramento, said he “has long favored an added role for the courts of appeal in capital cases,” in part because “the bulk of issues considered by the Supreme Court are routine.”

However, he said he was “leery of allowing two judges of a three-judge panel to overturn a capital sentence with no further right of review” for the prosecution.

He said the high court should have to review decisions that overturn death sentences unless they are unanimous.

The California Attorneys for Criminal Justice and the chief death penalty lawyer for the American Civil Liberties Union of Northern California said the proposal did not address what they consider the major problem underlying the current backlog -- a lack of qualified defense attorneys who are willing to take death penalty appeals under existing pay scales.

Veteran death penalty attorneys James Thomson, of Berkeley, and Lynn Coffin, of Mill Valley, both said the organization believes the proposal “is a constitutional step backward.”

They said the organization’s position is that “the highest punishment deserves review by California’s highest court. This proposal is a significant departure from California’s constitutional guarantee that every person facing government-ordered execution should have his/her case heard by the highest court in the state.”

It takes a two-thirds vote of the state Legislature to put a proposed constitutional amendment on the ballot, and a simple majority vote by the electorate for passage.

Times staff writer Virginia Ellis contributed to this report.



Amending our ways

There are three ways to amend the California Constitution:

1. The Legislature, by a two-thirds vote of each house, may submit at a general election the question of whether to call a convention to revise the Constitution. If a majority of voters cast a “yes” vote, the Legislature is required to convene the convention within six months.

2. The Legislature, by a two-thirds vote of each house, may submit a measure directly to the electorate.

3. Signatures of registered voters may be gathered to place a measure on the ballot. For a constitutional amendment, the signatures must total 8% of the vote in the last gubernatorial election. Currently that amounts to 694,354 signatures.

If the question is put to the voters, passage is by a simple majority.

Source: Times staff reporting