Death Penalty

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Death Penalty in California

Delay in California’s Death Penalty System

California juries have imposed the death sentence on more than 900 individuals since 1978. In 1977, five years after the California Supreme Court first invalidated the State’s death penalty statute, see People v. Anderson, 6 Cal. 3d 628 (1972), the California Legislature acted to
reinstate the punishment. One year later, the current death penalty system took form, when
voters passed Proposition 7, known as the Briggs Initiative, amending the death penalty statute
and significantly expanding the circumstances under which prosecutors could seek the death
penalty. See California Commission on the Fair Administration of Justice, Final Report 120
(Gerald Uelmen ed., 2008) [“Commission Report”], available at
documents/CCFAJFinalReport.pdf (“Under the death penalty statute now in effect, 87% of
California’s first degree murders are ‘death eligible’ . . . .”).

Yet only 13 of those 900 have been executed by the State. Of the remainder, 94 have died of causes other than execution by the State, 39 were granted relief from their death sentence by the federal courts and have not been resentenced to death, and 748 are currently on Death Row, having their death sentence evaluated by the courts or awaiting their execution. See Cal. Dep’t of Corr. & Rehab., Condemned Inmate List (July 2014), available at Despite
having been granted relief by the federal courts, 10 of the 39 individuals are listed by the CDCR
as being among the 748 inmates currently on Death Row. See id. In at least some of these
cases, this may be explained by the State’s intention to again seek the death penalty against
these inmates in a new trial. See more about the Delay in California’s Death Penalty System here

Death Penalty Appeals

By Gerald F. Uelmen, a professor at Santa Clara University School of Law.

Fully one-third of 2012’s published opinions involved death penalty appeals. Of the 29 capital cases, 25 resulted in affirmance of the death judgment and 1 in denial of a writ of habeas corpus (3 were reversed). The only objection to a death penalty affirmance was Justice Werdegar’s dissent in People v. McKinnon (52 Cal. 4th 610 (2011)), arguing that the majority had applied the wrong standard in upholding the dismissal of a juror based on responses to a written questionnaire. All of the other death penalty affirmances were unanimous.

Of the three reversals, two were unanimous determinations that the trial court had erred in excusing jurors. (See People v. Allen, 53 Cal. 4th 60 (2011); People v. Pearson, 53 Cal. 4th 306 (2012); and People v. Brents, 53 Cal. 4th 599 (2012).)

In 2010 the capital cases consumed 46 percent of the court’s output for the yearlong period, as measured by the 1,369 pages of death penalty opinions. This year’s 29 death penalty opinions took up 2,102 pages, well over half of the year’s total. I also measured the proportion of oral argument time consumed this past year by death penalty cases: 34 percent, in line with the share of total cases they represent.

These are just two measures of the resources that could be freed up if voters adopt the Savings, Accountability and Full Enforcement for California Act (the so-called SAFE initiative, aimed at repealing the death penalty) in November. If the maximum penalty becomes life in prison without parole, not only will it save trial court resources by eliminating the need for penalty trials, it also will allow the appeals in these cases to be rerouted to the courts of appeal for initial review instead of sending them directly to the state’s high (and very congested) court. That change would permit the California Supreme Court to grant more hearings in both civil and criminal cases, no doubt greatly reducing if not eliminating the current delays in processing civil and criminal appeals.

Aside from judicial resources, it turns out that the greatest expense of the death penalty is the cost to incarcerate inmates on death row during the many years it takes to dispose of their direct appeals, state habeas petitions, and federal habeas filings. The Department of Corrections estimates that confining a prisoner on death row costs about two and a half times more than keeping a “lifer” in a maximum-security facility for the same amount of time. Currently, we spend approximately $100,000 per year per death row inmate. The inmates whose cases were reviewed this year range in age from 35 to 68 years, with an average age of 46. Nearly all of the appeals decided this year involved crimes that occurred in the early 1990s. Now the 25 condemned inmates who lost their appeals will begin bringing habeas corpus petitions in both state and federal court, a process that currently takes an average of twelve years.

Proposition 34

In 2012, the death penalty was alive – if not well – in 33 states. But in November 2012 that number was tried to be down to 32. That’s when Californians got the chance to vote on Proposition 34, a ballot initiative that would abolished California’s death penalty, while at the same time promising to keep California´s death row inmates behind bars for the rest of their lives.

For some, of course, capital punishment has always been a moral issue. But, with Proposition 34, morality undoubtedly have very little to do with it. No, what death penalty opponents really think they have going for them in 2012 is the state’s budget crisis, which they hope will convince enough voters that we can no longer afford to keep our $184 million-a-year death penalty machine going.

In 2010 “I wouldn’t have thought it was possible for an initiative like this to be enacted,” says Santa Clara University School of Law professor Gerald F. Uelmen. “But as with same-sex marriage, the ground on this is shifting very fast.”

Uelmen is a longtime observer of death penalty politics. He is also the co-author of a soon-to-be published biography of California Supreme Court Justice Stanley Mosk, who struggled mightily with both the morality and legality of capital punishment.

“Personally, Mosk always opposed the death penalty,” says Uelmen, who examined the late justice’s legacy along with Los Angeles historian Jacqueline R. Braitman (“A Matter of Conscience”). “But he was also committed to applying the law.” And throughout much of Mosk’s long and storied career, state law clearly supported executions.

“If Mosk were alive today, he would certainly be surprised by how fast sentiment on the death penalty has changed,” Uelmen adds. “It’s only been twelve years since his death. Back then the possibility of the death penalty being eliminated in California by popular vote wasn’t even foreseeable.”

The proposition was defeated with 52% against, 48% in favor.

History of Capital Punishment in California

By Historian Jacqueline R. Braitman, PhD, and Gerald F. Uelmen, a professor at Santa Clara University School of Law. They are the co-authors of Justice Stanley Mosk: A Life at the Center of California Politics and Justice, to be published later this year by McFarland & Company, Inc.

Proposition 34, an initiative to replace California’s death penalty with a maximum sentence of life without parole. Supporters of the measure emphasize the dysfunction and cost of the death penalty, rather than the question of its morality. Those who are charged with its application also avoid the moral issue, asserting their duty to follow the law regardless of their personal views. Stanley Mosk struggled with this conflict throughout a career that spanned more than 60 years. First as Gov. Culbert Olson’s executive secretary reviewing clemency petitions, then as a superior court judge in Los Angeles, then as California’s attorney general, and finally as the longest-serving justice in the history of the California Supreme Court, Mosk, who died in 2001, played a central role in the enforcement of California’s death penalty laws even as he remained an unequivocal opponent of the practice.

The insights he shared may be of value to us today as we weigh the pros and cons of a momentous change in the law.
Judge Stanley Mosk sentenced only one man to death during his nearly two decades on the superior court. The case, he said, “had all the overtones of intrigue, love, sex, hate, rejection, frustration and finally violence.” The defendant was John Russell Crooker Jr. A former law student and houseboy, Crooker stood accused of murdering Norma McCauley, a wealthy divorcee and mother of three, after she ended a stormy, clandestine romance with him.

Ten years before the United States Supreme Court decided the landmark case of Miranda v. Arizona in 1966, Crooker’s lawyer argued that his client’s written confession should be thrown out as evidence because the police failed to warn him of his right to an attorney. Mosk ruled that the confession was admissible in evidence. The jury found Crooker guilty of first-degree murder and recommended that he be put to death. After the California Supreme Court upheld the death judgment, Judge Mosk set the date of execution for April 12, 1957. By a vote of 5 to 4, the U.S. Supreme Court affirmed Mosk’s ruling, concluding that Crooker needed no reminder of his right to counsel since before the crime he had completed a year of law school.

Years later, Mosk confessed that the case made him extremely uncomfortable. “If we truly believe that only God renders such irrevocable decisions as life and death,” he said, “then the judge who makes the pronouncement of the ultimate penalty is in fact playing God. He is ordering the elimination of a human being.”

In 1958 Judge Mosk was elected attorney general in a Democratic landslide, which put him in charge of defending death sentences before the California Supreme Court. Crooker’s petition for clemency was presented to newly elected Gov. Pat Brown, who commuted Crooker’s sentence to life without parole. As Brown explained it: “I listened carefully to all they had to say, but what really made up my mind was a note from [Attorney General] Stanley Mosk in the report, stating that as the trial judge he would not object to a commutation of Crooker’s sentence from death to life imprisonment. ‘This defendant’s crime arose out of relationship with the deceased under a set of circumstances that would not likely happen again,’ Mosk wrote. ‘He is an intelligent young man of some cultural attainment, and if personality defects could be cured or contained, he could in the distant future become rehabilitated and become a constructive member of society.’ ”

Eight years later, after receiving numerous reports of Crooker’s rehabilitation, Brown once again commuted his sentence – to life with parole – and in 1972 Crooker was released.

After Crooker’s release, Mosk, who by then sat on the Supreme Court, received an invitation to his wedding. Justice Mosk demurred, but he did send Crooker a note wishing him well, and every year after that he received a Christmas card from Crooker and his wife with an update on how they were doing. Mosk found one note particularly poignant. “I thought you would be pleased to know that Valerie and I have bought a house,” the former death row inmate said. “It is the first home I have ever owned. I have been promoted by my employer in the Bay Area and am now earning a guarantee of $25,000 per year. Things are really going well for us. I wish you continued success in your career.”

The year of Crooker’s release, there were 105 inmates on California’s death row awaiting execution in the gas chamber at San Quentin Prison. They included Charles Manson, leader of the cult that committed the horrifying Tate-LaBianca murders in 1969; Sirhan Sirhan, who assassinated Robert F. Kennedy in 1968; and Gregory U. Powell, who was convicted of the 1963 murder of a Los Angeles police officer in an onion field near Bakersfield. That same year, People v. Anderson (6 Cal. 3d 628 (1972)) presented the state Supreme Court with a broad challenge to the constitutionality of California’s death penalty law. Murder defendant Robert Page Anderson argued that the death penalty was unconstitutional as both “cruel” and “unusual” under the state and federal constitutions. The court noted that the same issue was currently before the U.S. Supreme Court, but found it unnecessary to address the question of constitutionality under the federal Constitution because it concluded that California’s death penalty law violated the state constitutional prohibition of “cruel or unusual punishment.”

The February 1972 ruling did not come as a complete surprise, since nearly every death judgment reviewed by the court in the previous five years had been reversed. But the author of the opinion – Chief Justice Donald R. Wright – certainly surprised the man who appointed him, Gov. Ronald Reagan. At the statehouse, Reagan wasted no time denouncing the chief justice’s opinion, which spared the lives of everyone then on death row, calling it “one more step toward totally disarming society in its fight against violence.”

Anticipating just such a reaction, Justice Mosk and his fellow justices had sought to dissuade Chief Justice Wright from writing the opinion. As Mosk would later report, “We all said to him, ‘Look Don, you were appointed by Governor Reagan. We know his attitude on the death penalty. We’ll spare you the embarrassment of putting this out. One of us will be glad to do it, or we can put it out [unsigned] by the court and nobody will know who the author is.’ ” Wright, however, refused. “No, those are my views,” he told Mosk. “I’m going to stand up and be counted.”

Chief Justice Wright’s opinion in Anderson was couched in broad, sweeping terms: “We have 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. Our conclusion that the death penalty may no longer be exacted in California consistently with article I, section 6, of our Constitution is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members.”

Thus the stage was set for Proposition 17, a ballot measure that tried to amend California’s constitution by declaring the death penalty to be neither cruel nor unusual. On November 7, 1972, it passed with a whopping 67 percent of the vote.

Ironically enough, by then the U.S. Supreme Court had handed down its nine separate opinions in the case of Furman v. Georgia, prohibiting unguided discretion in the imposition of the death penalty by juries. This decision truly was a surprise, even to the justices of the California Supreme Court. If they had simply waited a few months until June, their controversial ruling in Anderson could have been entirely avoided. As Justice Mosk later explained, “We just sort of counted noses,” assuming that President Richard Nixon’s recent appointments had shifted the high court so far to the right that the Furman challenge to death penalty laws would never succeed. Still, in California the fight over the death penalty was hardly over.

In 1973 the California Legislature responded to the generally accepted interpretation of Furman by enacting a mandatory death penalty law. It required capital punishment in all cases of contract killings, murders of police officers or crime witnesses, multiple killings, and murders during the commission of rape, robbery, burglary, kidnapping, or child molestation. Over the next three years, another fifty persons were sentenced to death in California under this law.

Then the U.S. Supreme Court once again weighed in, in 1976 upholding death penalty statutes that “guided” the discretion of juries, while finding the mandatory death penalty laws enacted in twenty states – including California – unconstitutional. California lawmakers came back the next year with yet another death penalty law, this one authored by then-Senator George Deukmejian, which they enacted over the veto of Gov. Jerry Brown.

It wasn’t until 1979 that the California Supreme Court finally addressed the constitutionality of the Deukmejian death penalty law, in People v. Frierson. Although defendant Lavell Frierson’s death sentence was set aside based on his claim he had been denied effective assistance of counsel, the majority opinion concluded that the statute itself was constitutional, since the amendment (art. I, § 27) adopted in 1972 by the people of California clearly declares: “The death penalty … shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article I, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.” Justice Mosk, in his concurring opinion, wrote, “[I]n ascertaining the permissible limits of punishment, [this court] must look in the first instance to those values to which the people of our state subscribe.”

And so Justice Mosk bowed to the rule of law. But as the conclusion of his opinion made clear, he did so with a heavy heart. “The day will come,” he wrote, “when all mankind will deem killing to be immoral, whether committed by one individual or many individuals organized into a state. Unfortunately, morality appears to be a waning rule of conduct today, almost an endangered species, in this uneasy and tortured society of ours: a society in which sadism and violence are highly visible and often accepted commodities, a society in which guns are freely available and energy is scarce, a society in which reason is suspect and emotion is king. Thus with a feeling of futility I recognize the melancholy truth that the anticipated dawn of enlightenment does not seem destined to appear soon.” (Frierson, 25 Cal. 3d 142, 189 (1979).)

Twelve years later, in 1992, California conducted its first execution under the Deukmejian death penalty law. Robert Alton Harris had been convicted of killing two high school sophomores he kidnapped from the parking lot of a San Diego drive-in. After shooting both boys through the head, according to prosecutors, he ate their half-finished hamburgers. The police officer who arrested Harris after a subsequent robbery was the father of one of the victims.
When the California Supreme Court rejected Harris’s appeal, Justice Mosk joined Chief Justice Rose Bird in dissent, arguing that prejudicial pretrial publicity tainted the fairness of his trial. Eventually, the matter landed on the desk of Gov. Pete Wilson, who in a live television broadcast rejected Harris’s appeal for clemency. “As great as is my compassion for Robert Harris the child,” said Wilson, acknowledging the terrible circumstances surrounding the defendant’s childhood, “I cannot excuse or forgive the choice made by Robert Harris the man.”

On the night Harris was executed, April 21, 1992, Mosk and his fellow justices sat up all night as one last-minute petition after another was granted by federal courts, then set aside by the U.S. Supreme Court. Malcolm M. Lucas, who was chief justice at the time, urged Mosk to go home and get some sleep, promising they would call him if anything happened. Mosk, then 80, replied that he was worried not about getting sleep but that he would have to cancel the 6:30 a.m. tennis game he had scheduled.

Over the years, Stanley Mosk responded frequently to requests from countries all over the world seeking his advice on how to set up, refine, or reform judicial institutions and procedures. One of those countries was Israel, and in 1991 he published his views about the death penalty in The Israel Law Review. As he explained in the article, if there was one thing that qualified him to talk about the death penalty, it was that he had over the course of his career been on all sides of the issue.

Today, thanks to the “Briggs Initiative” passed by voters in 1978, which broadly expanded the categories of cases in which the death penalty can be imposed, California’s death row has mushroomed to 720 inmates. Still, since Robert Harris was put to death in 1992 there have been only twelve executions. Meanwhile, two successive chief justices of the State of California have declared the state’s implementation of the death penalty law “dysfunctional.”

State Senator Ron Briggs, whose father, former Senator John Briggs, sponsored that ’78 ballot measure, now says it was a mistake. “Our initiative was intended to bring about greater justice for murder victims,” he wrote in a Los Angeles Times opinion piece published last February. “Never did we envision a multibillion-dollar industry that packs murderers onto death row for decades of extremely expensive incarceration. We thought we would empty death row, not triple its population.”

In November 2012, nearly 12 years since Stanley Mosk’s death and 100 years since his birth, the “dawn of enlightenment” that he anticipated tried to arrive in California.

Death Penalty: Unconstitutional in California?

In July 16, 2014, CORMAC J. CARNEY, a UNITED STATES DISTRICT JUDGE, judged that the California system is unconstitutional. And, accordingly, the Court vacated a death sentence on the following grounds:

“When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.

But for too long now, the promise has been an empty one. Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional.”

“It is a con­clu­sion that many judges in Cali­for­nia in the state and fed­er­al court have come to, that the state’s death-pen­alty sys­tem is dys­func­tion­al,” said Richard Di­eter, ex­ec­ut­ive dir­ect­or of the Death Pen­alty In­form­a­tion Cen­ter. “What this judge did was take it a step fur­ther and say be­cause it is so un­ruly “¦ it can­not be ap­plied, that it is wrong to ap­ply such a ran­dom and un­pre­dict­able pun­ish­ment to any­one.”

Supreme Court Death Penalty Decisions in 2011

By Gerald F. Uelmen. He is a professor at Santa Clara University School of Law. Luci Buda, Class of 2012, compiled the data for this article.

The flow of death penalty cases continued unabated in 2011, with 26 death penalty affirmances, all unanimous but four. (One capital case that split the court 4-3 is summarized in the sidebar.) Two cases had solo dissents: one signed by Justice Moreno (People v. Lynch, 50 Cal. 4th 693 (2010)), and the other by Justice Wiseman of the Fifth Appellate District sitting on assignment, who disagreed with the majority’s application of harmless error (People v. Gonzales, 51 Cal. 4th 894 (2011)). The only 5-2 affirmance was People v. Jones (51 Cal. 4th 346 (2011)), in which Moreno joined a dissent by Justice Werdegar protesting the high court’s acceptance of prosecutorial explanations for peremptory challenges to three African-American jurors that were not supported by the record. She concluded that the trial judge’s failure to evaluate the explanations offered by the prosecutor “leaves this court without a ruling entitled to deference, and leaves the resulting inferences of pretext and discriminatory intent undisturbed.” (51 Cal. 4th at 385 (citations omitted).)

The most important capital punishment rulings, however, came not in direct appeals from death judgments but in procedural challenges to “shell” habeas corpus petitions filed by condemned inmates. The need for these petitions arises from delays in the appointment of counsel to handle the state habeas corpus claims of death row inmates, which puts them in jeopardy of missing the one-year statute of limitations imposed on federal habeas claims. Though the federal statute of limitations is tolled during the pendency of a state habeas claim, California inmates face a lengthy wait for appointment of habeas counsel even after their death sentence has been affirmed on direct appeal.

In In Re Morgan (50 Cal. 4th 932 (2010)), for example, the petitioner had been awaiting the appointment of habeas counsel for 13 years, including 4 after the decision on his direct appeal. To toll the federal statute of limitations, the California Appellate Project filed a cursory one-claim state habeas petition on the inmate’s behalf, requesting permission to amend the petition within 36 months of the appointment of habeas counsel. The attorney general opposed the request, but the court granted the petition. Justice Kennard, writing for a five-justice majority, concluded that the critical shortage of qualified attorneys willing to handle death penalty habeas claims was a circumstance beyond the court’s control.

Justice Corrigan, joined by Justice Baxter, dissented: “This court should not abandon its general rules and fashion a sham procedure solely to enable a small set of habeas petitioners to evade federal law.” (50 Cal. 4th at 950.) That “small set” of habeas petitioners includes 300 inmates on California’s death row who have no counsel to handle their habeas petitions. If Corrigan had her way, they would all be foreclosed from seeking habeas relief in federal court. Thus far, the federal courts have set aside 70 percent of the California death judgments they have fully reviewed. Am I the only one who sees a resemblance between Justice Corrigan and the Queen of Hearts?

1 thought on “Death Penalty

  1. International Post author


    We thank Dr. Braitman and Professor Uelmen for presenting us with the unique history of Justice Mosk who faced the death penalty from so many different perspectives. I find it ironic, however, especially in the context of Proposition 34, that the one individual whom Justice Mosk did sentence to death, Mr. Crooker, first had his sentence commuted to life WITHOUT parole and then had it commuted to life WITH parole. The supporters of Proposition 34 are now promising us that the numerous multiple murderers, currently on death row (e.g., Manson, Ramirez, etc.), will never be paroled. But how can the voters of California know that this promise will be kept? Ten years from now, will the supporters of Proposition 34 come back and argue that it is also “too costly” to keep murderers in prison for the rest of their long lives? John K. Haggerty Santa Clara, CA


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