Op-Ed: A better death penalty for California

Lawrence “Pliers” Bittaker, who raped, tortured and murdered five teenage girls in the Los Angeles area in 1979, is shown in this prison photo.
(California Department of Corrections and Rehabilitation)

Oklahoma City bomber Timothy McVeigh was sentenced to death for the murder of 168 people in 1997. He was executed less than four years later. McVeigh was not railroaded; his claims were fully considered. His case was reviewed on appeal by the federal court of appeals, again by the federal district court on post conviction review, and again by both of those courts on his motions for stay of execution. Capital cases do not get any more complex than his, and yet it didn’t take decades to conduct a thorough and fair review and carry out his sentence.

Contrast this with the case of Harold Memro in California.He was convicted in 1987 of murdering three boys. The first two reviews of his case, which are standard in capital cases, took until 1995. That was bad enough, but nine years later his lawyers dumped on the California Supreme Court yet another massive petition, 521 pages long with 143 claims. The court eventually denied all the claims, finding them without merit and most of them patently so. It held that the petition “exemplifies abusive writ practices” that are all too common in California. The tactic bought Memro years of delay on his sentence, which still has not been carried out.

We often hear that California’s death penalty is broken. It would be more accurate to say it has been sabotaged. Defense lawyers intentionally gum up the works, courts can do little about it, and the California Legislature has time and again killed well-crafted legislation designed to fix the problems.

The fear that California risks putting to death an innocent person is greatly overblown.


This year, needed death penalty reforms are on the ballot as Proposition 66, and the people can vote on them directly. The initiative would make review of the cases faster and more reliable, eliminate pointless obstructions and save money through reduced incarceration costs.

There are two ways to challenge a criminal judgment: direct appeal on the trial record, which considers issues such as admissibility of evidence and whether the jury was properly instructed, and habeas corpus petitions, which are based on facts outside the record, such as claims that the defense lawyer provided ineffective representation. Every capital case should be reviewed on appeal and one habeas corpus petition, but there is no need to hear second, third or fourth petitions in cases with no doubt of guilt.

Proposition 66 would reserve additional reviews solely for cases with substantial claims that the defendant did not commit the crime or is exempt from capital punishment (for example, by reason of being intellectually disabled). It would even make such reviews easier, compared with the current system. But because so few cases involve any substantial question of guilt, most of the time the process would end after the second review.

The fear that California risks putting to death an innocent person is greatly overblown. No one sentenced to death here since 1977, when capital punishment was reinstated after a U.S. Supreme Court moratorium, has ever been shown to be actually innocent of the crime. Three California cases are cited on the Death Penalty Information Center’s “innocence list.” One is from the pre-1977 era and irrelevant to the present system. The other two are cases in which a conviction was overturned on procedural grounds many years after the crime, and the prosecution no longer had the evidence to get a new conviction.


The reforms Proposition 66 proposes for California’s death penalty review process are modeled on laws enacted by Congress and upheld by the U.S. Supreme Court for federal capital punishment cases. Among other changes, the initiative would move habeas petitions out of the overloaded California Supreme Court into the court that conducted the original trial, to be heard by the original trial judge. That judge is already familiar with the case, and he or she can examine the facts more effectively, and more quickly than the state Supreme Court, while the case is still relatively fresh.

Proposition 66 also would eliminate bureaucratic barriers to carrying out executions, once cases have been fully reviewed. Because of a court decision in 2008, execution “protocols” have been subject to the state Administrative Procedure Act, a series of regulatory hoops that were established to restrain agencies that oversee businesses. Proposition 66 specifically exempts executions from an act that was never meant to apply to carrying out court sentences.

Finally, in recent years, opponents of capital punishment, citing the costs of death-row versus general-population incarceration, have pushed the claim that the death penalty is simply not worth the expense. But it is the decades and decades of appeals that increase its costs. If fair but limited reviews were in place, executions could go forward, death row incarceration times would decrease and so would the costs.


Justice is government’s most important product. California’s death row contains murderers like Robert Rhoades, a serial murderer and sexual predator who raped and tortured an 8-year-old boy for 10 hours before killing him. It includes Lawrence “Pliers” Bittaker, who raped, tortured and murdered five teenage girls in the Los Angeles area in 1979. Life in prison is not an adequate punishment for such monsters.

California can afford justice for the victims of these horrible crimes, and Proposition 66 will provide it.

Kent S. Scheidegger is the legal director of the Criminal Justice Legal Foundation in Sacramento. He wrote the habeas petition reforms contained in Proposition 66.

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