Executions could resume after California Supreme Court leaves most of Proposition 66 intact


The California Supreme Court largely upheld a measure Thursday passed by voters to speed up executions but severely diluted a key provision aimed at ending a backlog of appeals.

The majority decision, signed by five of the seven justices, is likely to have the biggest effect on more than 15 death row inmates who have exhausted their appeals.

Backers of Proposition 66, sponsored by prosecutors and passed with 51% of the vote in November, predicted executions would resume in months unless Gov. Jerry Brown decides to commute death sentences.


There has not been an execution in California in more than 10 years, primarily because of court challenges.

“This is going to put some heat on Jerry Brown, whether he allows the law to be enforced or gets in there to try to change things,” said Michael Rushford, president of the pro-death penalty Criminal Justice Legal Foundation, which helped write the ballot measure. “Is the governor going to step up on his way out the door and commute these guys’ sentences as the governor of Illinois did some years ago?”

As state attorney general, Brown enforced the death penalty. As governor, he did not take a public position on Proposition 66 or on measures to end capital punishment.

His office did not comment on Thursday’s ruling.

A federal court order blocking executions remains in force, but Rushford said the state’s new proposed single-drug protocol for lethal injection renders the federal challenge moot.

Once the California Supreme Court decision is final, in 30 days, prosecutors around the state will go to judges to obtain execution dates, he said.

Challengers tried to persuade the court to throw out all of Proposition 66, which was intended to remove several hurdles to restarting the death chamber at San Quentin.

Instead, the ruling upended only one provision, a requirement that all state death penalty appeals be decided within five years.

The court construed the deadline as a mere “directive,” not a requirement.

That deadline is only “an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice,” Justice Carol A. Corrigan wrote for the majority.

Because of a huge backlog of appeals, the California Supreme Court would have to spend 90% of its time on death penalty cases for at least the next five years to meet the five-year deadlines, legal analysts said.

But without a strict timetable, appeals can take decades to resolve.

Six of the justices agreed that the measure’s time limits on resolving appeals have no legal force and that judicial leaders need not devise new rules to implement them.

Rushford said inmates who have exhausted their appeals “don’t have much time left.”

“I think months is a reasonable estimate” of when the next execution will occur, he said.

Kent Scheidegger, legal counsel for Rushford’s group and an author of Proposition 66, said that if the court decides appeals more quickly, “we should see a very substantial speedup.”

But Christina Von der Ahe Rayburn, who represented the challengers, said federal courts could still delay the resumption of executions.

“Nobody is going to be executed tomorrow, thank goodness,” she said. “But it does make executions more possible in the short term.”

She disagreed with Rushford that the federal case that has blocked executions could be resolved within months.

Thursday’s ruling surprised and disappointed her, she said, though she was heartened by language in the decision that indicated the justices “won’t make much effort to honor the deadlines.”

UC Berkeley law professor Elisabeth Semel, who runs a clinic for defending death row inmates, said Thursday’s decision does not help those who have exhausted their appeals, but called it a “major victory” for hundreds of other death row inmates with appeals pending in the state system.

By interpreting the deadline on deciding appeals to be flexible, those inmates may be many years away from the execution chamber.

Santa Clara University law professor Gerald Uelmen, who ran a state commission several years that examined the state’s death penalty system, said several of the measure’s provisions may actually increase delays.

“It is just going to boggle up the system even more,” Uelmen said.

Corrigan, writing for the majority, said “it remains to be seen” how effective Proposition 66 will be in expediting death penalty appeals. Much will depend on whether the Legislature provides more funds for the courts, she said.

“The time limits reflect the voters’ will, which we respect,” Corrigan wrote. “However, they were presented to the voters by the proponents of Proposition 66 without the benefit of hearings or research exploring their feasibility or their impact on the rest of the courts’ work.”

Opponents of Proposition 66 challenged the measure the day after the November election, contending the initiative usurped the authority of the courts.

The court put the new law on hold while considering the challenge.

The court’s decision left in place several contentious requirements of the new death penalty law.

Criminal defense lawyers who have done appeals will be required to take death row cases if they want to continue to receive appointments from the courts to represent indigent defendants.

There has been a shortage of qualified lawyers willing to handle death penalty appeals because many attorneys consider the pay inadequate and the emotional toll high.

Thursday’s decision also did not overturn a part of the measure that transfers review of habeas corpus capital challenges to the lower courts.

In the past, only the California Supreme Court reviewed those challenges in the state system.

Proposition 66 further ended public review of execution methods, a requirement under the old law that was blamed for the dearth of executions. The ruling left that provision in place.

California law gives each person convicted of the death penalty an automatic appeal and a separate habeas corpus challenge to the California Supreme Court.

It now can take a decade or longer for the California Supreme Court to rule on an automatic appeal.

Afterward, the court considers the inmate’s habeas challenge. That is based on events that were not reflected in the trial transcript, such as newly discovered evidence of juror misconduct.

Once state courts have completed their reviews, death row inmates can challenge their verdicts and sentences in federal court. Proposition 66 did not affect federal courts.

Chief Justice Tani Cantil-Sakauye and Justice Ming W. Chin did not participate in the Proposition 66 case because they serve on the Judicial Council, the policymaking body of the courts and a defendant in the lawsuit.

They were replaced by two members of the Courts of Appeal: Santa Ana-based Justice Raymond J. Ikola, an appointee of Gov. Gray Davis, and Sacramento-based Justice Andrea L. Hoch, an appointee of Gov. Arnold Schwarzenegger.

Corrigan, a conservative, was joined in the majority ruling by Justice Kathryn Mickle Werdegar — a Republican appointee who has voted frequently with the liberals — Hoch and Justices Goodwin Liu and Leondra Kruger, both appointees of Gov. Jerry Brown.

Liu wrote separately to stress that the deadlines set in Proposition 66 need not be enforced. Hoch, Kruger and Werdegar joined him.

“The five-year limit, construed as directive or simply unconstitutional, has no binding effect and provides no guidance for responsible actors charged with the fair and efficient administration of justice,” Liu wrote.

Corrigan and Kruger face voters next year in a routine retention election.

Justices have been ousted at the ballot only once. Voters rejected the late Chief Justice Rose Bird and her liberal colleagues after a campaign that accused them of refusing to enforce the death penalty.

Justice Mariano-Florentino Cuéllar, in a dissent joined by Ikola, said the majority should simply have struck down the deadline for deciding appeals as unconstitutional rather than engage in a “novel reinterpretation” and “neutering” of the initiative.

The majority’s decision to simply construe the deadlines as flexible was “at odds –– entirely –– with what the initiative says, how it was designed to work, and how it was sold,” wrote Cuellar, a Brown appointee.

“Courts do not have the power to disregard a clear statement that a judicial deadline is mandatory, nor to construe a mandatory deadline to be something other than what it is,” Cuellar said.

Cuellar and Ikola also would have struck down a provision in the measure that shifted review of habeas corpus challenges to the lower courts.

California has more than 740 inmates on death row, the most of any state.

Twitter: @mauradolan


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2:45 p.m.: This article was updated with additional background, reaction and details.

12:30 p.m.: This article was updated with additional reaction and details from the ruling.

10:55 a.m.: This article was updated with additional details from the ruling and reaction.

This article was originally published at 10:25 a.m.