By Lovepreet Dhinsa and Mia Machado
CALIFORNIA – The Committee on the Revision of the Penal Code is currently examining the death penalty in California for the first time in 13 years.
In 2008, the Committee conducted an extensive review into the death penalty.
Upon determining that it was ineffective, the Committee identified three areas of improvement: increasing funding, narrowing the scope of who receives the penalty, and repealing the penalty altogether.
California has yet to apply any of these recommendations.
The Committee on the Revision of the Penal Code reviewed recent literature and studies that were not previously available, and noted that California currently has the largest number in the country of individuals sentenced to death row, approximating 707 people.
The large majority of these individuals are currently awaiting appointment of counsel, which takes an average of over 30 years to complete all appellate procedures. Although no executions have occurred in the last 15 years, the penalty remains in the law, noted the Committee.
As a result, the majority of people do not complete their appellate procedures, often dying during the process. And yet the state continues to funnel over $5 billion tax dollars into the death penalty system.
In comparison to California, a majority of others states in the U.S. either have never used the death penalty or have not had it in the law.
Several state political leaders, such as Gov. Gavin Newsom, have voiced their opinions against the penalty, in which “no area of criminal law in California is more deeply confounding politically, legally, and morally,” said the Committee.
In 2019, the governor had filed an amicus brief in the California Supreme Court, arguing that the penalty was unconstitutional and the application process was racially biased.
Similarly, district attorneys in Los Angeles, Santa Clara, and other counties have also shown their support against the penalty, specifically in striking the penalty altogether.
In fact, a group of current and formerly elected prosecutors, the attorney general, and other law enforcement leaders have recently stated that “[m]any have tried for over 40 years to make America’s death penalty system just. Yet the reality is that our nation’s use of this sanction cannot be repaired, and it should be ended.”
Although California’s leaders have endorsed the elimination of the penalty, California’s voters remain conflicted on the penalty, specifically arguing that the penalty is a direct conjunction to providing justice for the victims involved.
However, a recent poll conducted by U.C. Berkeley’s Institute for Government Studies proved that a majority of voters supported the governor’s decision to eliminate the penalty, yet 61 percent of individuals supported keeping the death penalty as a possible punishment for serious crimes.
In analyzing the history of California’s death penalty, the Committee points to a series of challenges the state has faced with executions and with legal infirmities unique to California.
California’s original death penalty was struck down in 1972 by Supreme Court decision People v. Anderson (1972) because it was in direct violation of the 8th Amendment, the prohibition against cruel and unusual punishment.
During the decision of People v. Anderson, it was “concluded that capital punishment is impermissibly cruel. It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.”
One year later, California’s constitution was amended. In June 1972, Furman v. Georgia stipulated that the death penalty could not be applied in an arbitrary manner, which allowed the states to adopt statutes that may apply in certain circumstances.
In 1978, California voters approved this initiative, known as the “Briggs Initiative” after Senator John Briggs pushed for it. This expanded the scope of the death penalty to apply to all homicides. An additional amendment was also added, which allowed death and life in prison without the possibility of parole for special circumstances, such as killing a juror, car-jacking, drive-by-shootings, and gang-related murders.
The state of California has unique challenges with executions. After narrowly rejecting the repeal of the death penalty on two separate occasions, California voters attempted to “speed up” or “fix” the death penalty with the passage of Prop. 66.
However, since its passage, “the pace of litigations in death penalty cases has only slowed further.”
Despite reinstating the death penalty, no executions were carried out in California for the 25-year period from 1967 and 1992, until Robert Alton Harris became the first person executed during the modern death penalty era when he was put to death in the gas chamber in 1992.
But this method was soon banned by the courts, due to the execution style’s “cruel and inhumane” nature.
Despite then switching to lethal injection, “a federal district court ruled that “California’s lethal injection protocol – as actually administered in practice – create[d] an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment.”
This ruling resulted in a court-imposed moratorium on executions while the state sought to devise a new procedure. Although that case has since been settled by the parties, active litigation continues.
In 2019, Gov. Newsom issued an executive order imposing a moratorium on all executions, stating “California’s death penalty system is unfair, unjust, wasteful, protracted and does not make our state safer.”
In light of the governor’s moratorium, the parties settled the court challenge to California’s execution protocol, with the proviso that the case will automatically be reinstated should the moratorium be lifted.
However, litigation continues, as three elected prosecutors have attempted to intervene in the case, in an effort to set aside the settlement and to advocate that the state’s lethal injection protocol is constitutional.
California’s death penalty remains, technically, in effect, and the state’s Supreme Court has yet to address its many failures.
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