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The California Supreme Court’s decision last month to uphold Proposition 66, possibly green-lighting the resumption of executions in the state, was not surprising, but it was, as the LA Times said in an editorial, “Terribly depressing.”

California hasn’t executed anyone in more than 10 years, and to resume now is to revert to a method of punishment that is so barbaric, it is, as so frequently noted, no longer practiced in civilized nations. For a state that boasts of its progressive agenda — leading the rest of the nation in its work on climate change, environmental policies, protecting immigrants and workers’ rights — starting executions again puts it in the company of just a few other states, “outliers,” like Texas, Florida, Georgia, Arkansas, and Alabama. Not the company you would think California would be eager to join.

The lawsuit decided by the court was Briggs v. Brown, brought by the late former California Attorney General John Van de Kamp and Ron Briggs, and filed on their behalf by the law firm Orrick, Herrington and Sutcliffe immediately after Prop 66 passed. They argued that the initiative:

  • Violates the single-subject rule, which requires that a proposition can change only one subject under an initiative;
  • Illegally interferes with the courts’ power to hear original petitions for writ of habeas corpus (allowing inmates to show innocence or that trials were unconstitutional);
  • Violates equal protection principles by treating capital prisoners differently from other prisoners with respect to successive habeas corpus petitions;
  • Violates the “separation of powers” rules, which hold that the legislature or the people cannot dictate how the court conducts the court’s business. Separation of powers is related to “checks and balances,” a principle that ensures that one branch of government does not have more power than another.

The court rejected all of these challenges in its decision. However, it said that the initiative’s requirement that death penalty appeals should be completed within five years could not be deemed mandatory.

“Its provision that the courts ‘shall complete the state appeal and the initial state habeas corpus review in capital cases’ within five years is properly construed as an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice,” the court said.

“We are gratified that the California Supreme Court recognized the unconstitutionality of Proposition 66’s attempt to impose unrealistic deadlines on the courts’ consideration of capital appeals. While the Court did not strike down those deadlines, it rendered them toothless by construing them as permissive goals, rather than as mandatory deadlines,” stated Christina Von der Ahe, the Orrick attorney who argued the case on behalf of Briggs and Van de Kamp.

UC Berkeley School of Law dean and professor Erwin Chemerinsky goes even further in an editorial in the Sacramento Bee. “This will lead to litigation in each death penalty case about what to do about the five-year requirement, with courts making findings in every instance as to why it could not be met. Proposition 66 will be rendered meaningless on a case-by-case basis,” he writes.

Adds Robert M. Sanger, a criminal defense attorney and DPF Board Member, who filed an amicus brief to the lawsuit, said the decision, while disheartening, did leave the door open to substantive legal challenges in the future. First, Sanger points out that the Court ruled only on the four issues raised by Briggs and Van de Kamp and then ruled only on whether the proposition was unconstitutional “on its face” based on those grounds. “This means that other facial challenges can still be brought under state law.” Sanger cites as one example the initiative’s provision that non-capital lawyers who are on the appointed counsel lists (they are assigned cases by the court when a defendant needs representation) must take death penalty cases regardless of whether they are prepared to do capital litigation. Other potential challenges lie in the initiative’s changes to the state’s lethal injection protocols and how and by whom they’re reviewed, as well as its exemption of medical personnel from ethical compliance or sanctions by their licensing agencies.

Second, Sanger points out that the court left open “as applied” challenges. “All issues, whether raised or not in this case, can and will still be raised in individual cases when they violate an individual’s rights. In fact, 66 may have actually created additional opportunities for people sentenced to death to challenge their sentences,” he said. Third, any federal constitutional claims can still be raised “even if they have been turned down by the court in Briggs v. Brown until decided by the federal courts.”

Finally, Sanger says, “The death penalty system in California was found by the United States Supreme Court to have adequate due process safeguards in 1987 in Pulley v. Harris; however, some of those safeguards have been diminished in the interim. Now, due to the passage of 66 and the removal of even more safeguards, there is a good argument that what is left is inadequate to provide the required protection against wrongful executions.This makes the system itself unconstitutional.”

There are currently 748 people on San Quentin’s death row. California’s last execution was in 2006.

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