A few weeks after Governor Gavin Newsom put a moratorium on the death penalty, there are signs that public opinion is starting to shift. A poll by the Public Policy Institute of California was just released showing that a heavy majority of adults and also likely voters favor life without parole to capital punishment. Sixty-two percent of all adults and 58 percent of likely voters have now turned away from the death penalty.
This marks a big shift from 2000 when 49 percent favored the death penalty and 47 percent favored life imprisonment. So far, that public opinion has not translated into success at the polls for anti-death penalty measures. In 2016, the voters narrowly voted down a measure that would end the death penalty, while narrowly approving one that would speed up the process.
This week California Supreme Court justices unanimously upheld the death sentence of Thomas Potts, who was convicted of robbing and killing Fred and Shirley Jenks in their Hanford home in 1997. However, Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar – both appointed by former Gov. Jerry Brown – called the death penalty in California dysfunctional and expensive, and said it does not deliver justice in a timely way.
Justice Liu writes that, while they affirm the judgment, “affirming the judgment does not alter a fundamental reality: A death sentence in California has only a remote possibility of ever being carried out.”
He writes: “As leaders of the judiciary have long observed, the death penalty presents serious challenges for the fair and efficient administration of justice. For decades, those challenges have not been meaningfully addressed. As a result, California’s death penalty is an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.”
In this case he notes that the original judgment and penalty were issued in 1998, “Now, 21 years later, we affirm the judgment on direct appeal, but there is more litigation to come in the form of habeas corpus petitions in state and federal courts. This timeline is typical of our capital cases.”
Justice Liu notes that, in two recent cases, the Supreme Court “reversed the death judgment and remanded for a new penalty trial; each defendant lived for over a decade under an unconstitutional sentence.” In another case, “we vacated a capital conviction because of false evidence; that defendant was released after serving 25 years on death row.”
“My ultimate concern,” former Chief Justice Ronald George wrote, “is that we’re expending a tremendous amount of effort and expense to impose death sentences and send people to death row under circumstances that almost totally undermine the deterrent effect of the death penalty. A person sentenced to death knows that he or she in effect is being given a life-without-parole sentence, because the odds are that he or she is going to die of old age behind bars.”
The current Chief Justice, Tani Cantil-Sakauye, in the meantime said, “I don’t know if the question is whether you believe in it anymore. I think the greater question is its effectiveness . . . .”
US District Judge Cormac Carney said of the California death penalty: “California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death.”
In 2008, the Legislature created a blue-ribbon commission of law enforcement officials, prosecutors, public defenders, and scholars – chaired by former Attorney General and Los Angeles County District Attorney John Van de Kamp – to study the issue.
They concluded: “California’s death penalty system is dysfunctional” and emphasized two major sources of dysfunction: “The system is plagued with  excessive delay in the appointments of counsel for direct appeals and habeas corpus petitions, and  a severe backlog in the review of appeals and habeas petitions before the California Supreme Court.”
Justice Liu noted, “I express no view here on the morality or constitutionality of the death penalty. Since joining this court, I have voted to affirm scores of death judgments, and I will continue to do so when the law requires.”
That said, “It is impossible to review these cases without feeling tremendous compassion for the victims and their families, who have suffered unimaginable heartbreak and loss. But the promise of justice in our death penalty system is a promise that California has been unable to keep.”
He said, “We are overdue for what our Chief Justice has called ‘a merit-based discussion on [the death penalty’s] effectiveness and costs.’”
A few weeks ago, Governor Newsom put a moratorium on the death penalty, stating, “Our death penalty system has been — by any measure — a failure.”
He said, “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars.”
He added, “The intentional killing of another person is wrong. And as governor, I will not oversee the execution of any individual.”
In response to the concurrence, he issued a statement: “I commend Associate Justices Liu and Cuéllar for this pronouncement. As Justice Liu clearly articulated in his opinion, California’s death penalty system is ‘expensive and dysfunctional.’ And it violates foundational principles — like equal justice before the law and the timely administration of justice — upon which our entire legal system is built.”
—David M. Greenwald reporting