Conservative California Chief Justice Speaks Out Against the Death Penalty

Tani Cantil-Sakauye’s appointment to chief justice by then-Governor Arnold Schwarzenegger marked a huge moment locally, as she grew up in Sacramento and is a graduate of the UC Davis School of Law.

“I don’t think it is working,” she told the Times.  “It’s not effective. We know that.”

California’s death penalty requires “structural change, and we don’t have the money to create the kind of change that is needed,” she said. “Everyone is laboring under a staggering load.”

In response to a question, she said she supported capital punishment “only in the sense I apply the law and I believe the system is fair…. In that sense, yes.”

But the chief justice quickly reframed the question.

“I don’t know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?”

Writes the Times, “Cantil-Sakauye’s comments suggest a growing frustration with capital punishment even among conservatives and a resignation that the system cannot be fixed as long as California’s huge financial problems persist.”

They also note that her predecessor, retired Chief Justice Ronald M. George, “was similarly disheartened.”  Justice George concluded toward the end of his tenure that the system was “dysfunctional.”

Some may question a California Supreme Court Justice offering up an opinion on an issue that might come before her.  On the other hand, the structure of California’s death penalty is such that it requires the voters to change it.

Chief Justice Cantil-Sakauye is hardly what one could mistake for a liberal.

As the Times notes, “In her first year on the state high court, Cantil-Sakauye has more often sided with its conservative justices than its more moderate jurists, said Santa Clara University law professor Gerald Uelmen, an expert on the court. He said her early track record shows her as more conservative than George, who was a key swing vote on the seven-member court.”

Professor Uelmen, however, called the chief justice’s comments on the death penalty “powerful” and said, according to the LA Times, “they confirmed what he has been hearing privately – that even the conservatives on the California Supreme Court have grown disillusioned with the state’s capital punishment system.”

“Men and women on death row are far more likely to die of old age than by the executioner’s needle. Litigation has brought executions to a halt, and there is a shortage of lawyers willing to take capital cases. Inmates must wait an average of five years before getting lawyers to bring their first appeal,” the Times notes.

They add: “Cantil-Sakauye has written a ruling affirming a death sentence and joined other justices’ decisions upholding capital sentences since her elevation to the high court last January. Her biggest ruling came in a Proposition 8 case in which she said initiative sponsors have the right to defend their ballot measures in court when state officials refuse to do so.”

What does this all mean?  It is too soon to know.  The LA Times was clearly not expecting what they must have thought a routine interview with the Supreme Court Justice, following her first year on the bench, to be headline-making and potentially game-changing.

They ran the story on Christmas Eve day, December 24.  A few other papers, including the AP, have syndicated the article, but none of the interest groups or the SAFE Coalition fighting against the death penalty or pushing a measure for next year have commented yet.

In the end, it is up to the voters and not the judges, or even the legislature, to decide the future of California’s death penalty.

This is noteworthy, because a noted conservative judge is but the latest to throw in the towel on the death penalty.  As we have noted in the past, the turn against the death penalty is mainly the unworkability and cost angle, rather than it being immoral.

On the other hand, that is the basis for the SAFE Coalition’s challenge. It is led by people who are recent converts to the cause precisely because of the length of stay and prohibitive cost, who quickly jumped on a study released this summer from U.S. Ninth Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, which found that the death penalty adds $184 million to the budget over what it would cost to imprison people for life.

Seizing on that study, the Safe Coalition was formed, led by notables such as former San Quentin Warden Jeanne Woodford, and former Los Angeles County District Attorney Don Heller, who wrote the original 1978 legislation.

Don Heller said back in August, “I wrote the death penalty initiative for Senator Briggs in 1977, it was passed in November 1978.  It’s a well-drafted document, except, it doesn’t work.  It’s flawed because the process has become so incredibly expensive that it cannot be remedied by any legitimate means.”

He said it will continue to drain much-needed resources from law enforcement and the protection of society.

“I wrote it in 1977, at the time it was written no one considered the impact of capital punishment,” Mr. Heller continued.  “No one ever thought about the number of people that would end up being convicted under the initiative.”

While the justice’s views will not be decisive, they will be another authority that the SAFE Coalition can cite to bolster its case.