California voters in November legalized marijuana, approved a plan to reduce the prison population and enacted gun controls.
But on one key issue — the death penalty — the liberal tide shifted. Voters rejected a measure to ban capital punishment and instead approved an initiative intended to hasten executions.
That measure is now before the California Supreme Court. If the court allows it to go forward, executions are likely to resume this year, lawyers on both sides of the debate agreed.
The court voted 5 to 0 in closed session last month to put a hold on Proposition 66, sponsored by prosecutors and passed by 51% of voters.
The measure established strict legal deadlines for death penalty appeals and shifted some capital punishment reviews from the state high court to county trial courts.
Chief Justice Tani Cantil-Sakauye and Justice Ming W. Chin removed themselves from the case because they both serve on the Judicial Council, the policy-making body of the courts and a defendant in the lawsuit.
Depending on which appellate justices are appointed to take their places, the recusal could be good news for opponents of the death penalty. Both Chin and Cantil-Sakauye are among the more conservative members of the court.
Government is divided into three equal branches — executive, legislative and judicial — and the Constitution says no branch may usurp the responsibilities of another.
“The Legislature doesn’t get to tell the courts how to do their job,” said Christina Von der Ahe Rayburn, who is representing former Atty. Gen. John Van de Kamp and former El Dorado County Supervisor Ron Briggs in the lawsuit.
The measure requires appeals to be decided within five years of sentencing. It can now take a decade or longer for a condemned inmate to have his or her automatic appeal decided by the California Supreme Court.
In automatic appeals, condemned inmates challenge their convictions and sentences based on evidence in the trial record. Rulings by the judge and how the jury was picked may be closely examined in these appeals to the California Supreme Court.
Condemned inmates also are entitled to a habeas corpus challenge, which is based on evidence outside the trial record. Did the prosecutor withhold exonerating evidence? Was the defense lawyer incompetent? Did jurors engage in misconduct?
Getting lawyers to take death penalty appeals, particularly habeas cases, has been a huge hurdle in California.
Relatively low pay and the emotional toll the cases take on lawyers are only part of the problem.
They say the $50,000 the state provides for a habeas investigation is much too low to hire the experts needed to investigate the crimes and the inmates’ lives.
In 2014, 352 inmates on death row had no habeas lawyer, said UC Berkeley law professor Elisabeth Semel.
To resolve the lawyer shortage, Proposition 66 would require attorneys appointed to defend low-income criminal defendants also to represent condemned inmates in the automatic appeals.
The California Supreme Court now decides both the automatic appeal and the habeas petitions and appoints the lawyers.
Under Proposition 66, the sentencing judge would decide the habeas challenge and appoint a lawyer to represent the condemned.
Kent Scheidegger, legal counsel for the Criminal Justice Legal Foundation and an author of Proposition 66, said trial judges will have better luck than the state high court in getting lawyers to take the cases.
There are individual provisions of this measure that raise serious constitutional issues.
“Lawyers who do criminal work need to stay in good” with Superior Court judges, he said.
The death penalty advocate predicted the challengers’ separation of powers argument would fail.
“There are a large number of statues that direct how the courts process cases and what priority they give them, and they have never been struck down,” he said.
Scheidegger said the new deadlines for deciding appeals are needed because the cases are lingering in the courts too long.
He blamed defense lawyers for asking for too many extensions of time to file their written arguments and the California Supreme Court for granting the requests.
‘“Basically, the court needs to get tough on these people,” he added. “You read a docket of capital cases today and see 23 extensions of time. They need to start saying no.”
The law allows for extensions, and the court can decide whether to grant them. Under Proposition 66, the court generally could grant extensions under only extraordinary circumstances.
Semel, on the other hand, said the California Supreme Court would be spending virtually all its time on death penalty cases if Proposition 66 were allowed to take effect.
“The court can only handle a certain number of these cases a year,” Semel said.
At the pace envisioned by Proposition 66, the court would have little time to decide civil disputes, she said, adding, “It is not feasible. There are just too many cases.”
The backlog of fully briefed cases already is large. As of November, 77 death penalty appeals and 89 habeas petitions were completed and ready for the California Supreme Court to decide, Semel said.
Chapman Law School professor John Eastman said the California Supreme Court can move faster on the cases.
Judges “sit on them because they don’t like the death penalty,” the constitutional law professor said. “They don’t sit on them because they are overwhelmed with work.”
Gov. Jerry Brown appointed three of the state high court justices. Republican governors appointed the other four, who include three former prosecutors.
For decades prior to January 2015, the court, with only one Democratic appointee, was considered moderately conservative.
Santa Clara University law professor emeritus Gerald Uelmen, who served as the chief executive of a state commission that examined California’s death penalty system, said the court’s decision to put the measure on hold shows the justices believe it needs a thorough examination.
California has more than 750 inmates on death row — the largest in the country — and legal challenges over lethal injection have prevented executions since 2006.
After completing state appeals, inmates can challenge their sentences in federal court, which also can take several years.
In addition to the separation of powers argument, the challengers say the measure violates a rule that limits ballot measures to a single subject.
Besides setting deadlines, the measure changes the law to make it easier for the state to adopt a method of execution.
In their lawsuit, the challengers said the change would result in the “near immediate” execution of 20 inmates.
The court has asked for more written arguments on the case by the end of the month and may decide to hold a hearing.
Rayburn estimated the case probably would be decided by early June. Scheidegger said he hoped it would be sooner.
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