When Proposition 66 surprisingly passed last year, it was clear the proposition that aimed to speed up the death penalty was going to face serious challenges in the courts, and many perhaps expected it to get thrown out. Instead, the court majority yesterday upheld the proposition, while effectively re-writing it.
In the majority opinion, the court ruled that the petitioner’s challenges do not warrant relief but, “we hold that in order to avoid serious separation of powers problems, provisions of Proposition 66 that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.”
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.
In a separate opinion written by Justice Goodwin H. Liu, and joined by Justices Leondra R. Kruger, Kathryn M. Werdegar, and Associate Justice of the 3rd District Court of Appeal Andrea Hoch, the court found, “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.”
Critics are quick to charge the court with judicial activism. Justice Mariano-Florentino Cuéllar, in a dissent joined by Associate Justice of the 4th District Court of Appeal Raymond J. Ikola, argued that the court majority erred in failing to strike down the deadline all together.
The Attorney General here argued in support of Prop. 66 calling the five-year term a “goal” that was not “binding” and is really just “an invitation to take up the question of how long these appeals should take.”
The dissenters write, “This is what might be charitably described as a novel reinterpretation of the initiative’s five-year deadline for resolution of the automatic appeal and initial capital habeas corpus petition. It is at odds –– entirely –– with what the initiative says, how it was designed to work, and how it was sold. Even more remarkably, the majority blithely accepts this neutering of what clearly appeared to the voters to be a five-year deadline into a mere palaver on the processing of death penalty cases.
“And not just any palaver,” they continue. “By reimagining the initiative as nothing more than an earnest exhortation calling on courts to consider dialing up the speed of death penalty adjudication, the majority upholds something quite different from the initiative considered and enacted by the electorate, leaving in its wake uncertainty about how we interpret initiatives and whether the time limits included in Proposition 66 have any legal effect.”
Michael McMahon, the co-chair of the California Public Defenders Association (CPDA), noted that the primary purpose of Prop. 66 “was to require that appellate review of judgments of death be concluded in five years.
“But wait, that creates a problem. Micromanaging how and when the Judicial Branch resolves its cases would violate the Separation of Powers Doctrine,” he writes.
Instead of throwing it, he argues, “They essentially rewrote the Proposition in a desperate move to find it constitutional. On a legal theory that is not (to) be found in the briefs and arose only in the final minutes of oral argument, the major(ity) asserts that the mandatory requirements of Prop 66 do not mean what they clearly say. Instead, those requirements are merely aspirational and ‘directory.’ So, the Proposition survives.”
Therefore, Mr. McMahon writes, “Its stated purpose to speed up executions, however, may not be accomplished. Prop 66 shifts a significant portion of appeals and habeas review to the Courts of Appeal and to the sentencing court itself. These courts have no prior experience with death penalty challenges. Going forward, we will inevitably see conflicting opinions which will then need to be reviewed by the California Supreme Court. The Prop’s goal of early ‘closure’ may be thwarted.”
There are conflicting views as to whether this initiative will mean that death penalty cases will re-start.
The ACLU put out a statement on Thursday, arguing essentially that the decision “changes nothing.”
The statement from Ana Zamora, the Criminal Justice Policy Director, ACLU of California, states, “The fact remains that California has not carried out an execution in over 10 years and executions will not resume any time soon. A federal court stay remains in place that bars the resumption of executions until the court has time to resolve the important Eighth Amendment issues raised by the protocol the California Department of Corrections and Rehabilitation has proposed.”
She adds, “The CDCR has had its prior execution protocols struck down by the courts on five occasions in the past. From what we’ve seen, CDCR’s new protocol is likely to be rife with legal flaws. The death penalty in California remains broken beyond repair.”
But Michael Rushford, who heads up the pro-death penalty Criminal Justice Legal Foundation, which helped write the ballot measure, believes this puts pressure on Governor Brown – an opponent of the death penalty, who has not taken a position on Prop. 66 or on the measures to end the death penalty, and did not comment on the ruling.
“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, as quoted by the LA Times. “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?”
The question is whether this means death penalty executions will resume. Mr. Rushford told the Times that 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 the group, added 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 in court, believes that federal courts will likely 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.”
UC Berkeley law professor Elisabeth Semel told the Times while it will not help those who have exhausted their appeal possibilities, it is a “major victory” for those with pending appeals in the state system, as the decision keeps the appellate timeline flexible.
Santa Clara University law professor Gerald Uelmen believes this may increase rather than decrease delays. He said, “It is just going to boggle up the system even more.”
Bottom line, no one really know what to expect with this ruling, but by throwing out the five-year timeline, the judges effectively gutted the proposition even as they refused to throw it out.
—David M. Greenwald reporting