BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               C
                                                                     A
                                                                      
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                                                                     7
          SCA 27 (Harman)                                             
          As Introduced February 11, 2010 
          Hearing date:  April 20, 2010
          California Constitution
          MK:mc


                            DEATH PENALTY APPEALS: TRANSFER  

                                       HISTORY

          Source:  Author

          Prior Legislation: SB 636 (Harman) - failed Senate Public  
          Safety, 2008
                       SB 1558 (Morrow) - not heard Senate Public Safety,  
          2006
                                  SB 378 (Morrow) - failed Senate Public  
          Safety, 2005
                                  SB 513 (Lockyer) - Ch. 869, Stats. 1997
                                  SB 1088 (Lockyer) - from Conference  
          1997, content 
                                  placed in SB 513 (Lockyer) on 9-10-97
                                  SB 911 (Calderon) - held in Senate  
          Approps., 1997
                                  AB 1471 (Pacheco) - held in Assembly  
          Approps., 1997
                                  SB 1533 (Calderon) - failed in Senate  
          Criminal Procedure 1996
                                  AB 195 (Morrow) - Ch. 1086, Stats. 1996
                                  AB 2008 (K. Murray) - vetoed 1996
                                  AB 1508 (Bowler) - held in Assembly  
          Public Safety, 1993




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                                  AB 2196 (Bentley) - failed in Assembly  
          Public Safety, 1991

          Support: Judicial Council; Crime Victims United of California 

          Opposition:American Civil Liberties Union; Taxpayers for  
          Improving Public Safety; Friends Committee on Legislation of  
          California; California Public Defenders Association
           



                                         KEY ISSUE
           
          SHOULD THE SUPREME COURT HAVE THE ABILITY TO TRANSER TO A COURT OF  
          APPEAL A CASE IN WHICH THERE HAS BEEN A JUDGMENT OF DEATH?


                                       PURPOSE

          The purpose of this Constitutional Amendment is to provide that  
          the Supreme Court may transfer a death sentence case to an  
          appellate court and therefore the Supreme Court will no longer  
          have the sole appellate jurisdiction over death penalty cases.
          
           Existing law  provides that the Supreme Court has appellate  
          jurisdiction when judgment of death has been pronounced.  With  
          that exception, courts of appeal have appellate jurisdiction  
          when superior courts have original jurisdiction and in other  
          causes prescribed by statute.  (CA. Const. Article IV  11.)

           Existing law  provides that when upon any plea a judgment of  
          death is rendered, an appeal is automatically taken by the  
          defendant without any action by him or her, or his or her  
          counsel. (Penal Code  1239.)

           Existing Rules of Court  state that if a judge imposes a sentence  
          of death, an appeal by the defendant is automatically taken by  
          the Supreme Court.  (California Rule of Court 34.)





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           Existing law  provides that the Supreme Court may, before  
          decision, transfer to itself a cause in a court of appeal.  It  
          may before decision, transfer a cause from itself to a court of  
          appeal, or from one court of appeal or division to another.  The  
          court to which a cause is transferred has jurisdiction.  The  
          Supreme Court may review the decision of a court of appeal in  
          any case. However, it specifically provides that this authority  
          to transfer a case shall not apply to a judgment of death.  (CA.  
          Const. Article IV,  12.)

           This Constitutional Amendment  provides that the Supreme Court  
          may also transfer a cause in which the judgment of death has  
          been pronounced from itself to a court of appeal.

           This Constitutional Amendment  provides that if the Supreme Court  
          transfers to a court of appeal a cause when a judgment of death  
          has been pronounced, it shall review the resulting decision of  
          the court of appeal affirming or reversing the judgment.

           This Constitutional Amendment  provides that if the Supreme Court  
          concludes that the decision: (1) contains no error affecting the  
          judgment; (2) presents no need to secure uniformity of decision;  
          and (3) does not require resolution of an important question of  
          law, the Supreme Court may summarily affirm the judgment of the  
          court of appeal in an order published in the official reports.

           This Constitutional Amendment  provides that if the Supreme Court  
          determines that summary affirmance is not appropriate, the  
          Supreme Court shall hold oral argument and issue a decision in  
          writing with reasons addressing all or part of the decision of  
          the court of appeal.

           This Constitutional Amendment  deletes the provision stating that  
          Article IV, Section 12 does not apply to an appeal involving the  
          judgment of death.
                                          

              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          The severe prison overcrowding problem California has  




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          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  




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               system.  Unfortunately, as California's prison
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The
               state of emergency declared by Governor Schwarzenegger  
               almost three years ago continues to this day,  
               California's prisons remain severely overcrowded, and  
               inmates in the California prison system continue to  
               languish without constitutionally adequate medical and  
               mental health care.<1>

          The court stayed implementation of its January 12, 2010, ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


                                      COMMENTS

          1.    Need for This Bill  
          ---------------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).




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          According to the author:

              SCA 27 amends the California constitution to give the  
              California Supreme Court the ability to transfer capital  
              cases to the Courts of Appeal for decision.  The  
              California Supreme Court would then review the appellate  
              opinion for the purposes of identifying error and  
              assuring uniformity of precedent.  Granting California's  
              state appellate courts the jurisdiction to hear capital  
              appeals with discretionary review by the California  
              Supreme Court would streamline the capital appellate  
              process to benefit litigants, protect the public, and  
              allow the Supreme Court to fulfill its other important  
              criminal and civil law responsibilities.

          2.    Changes to the Appeals Process for Death Sentences  

          The California Constitution provides that in cases where the  
          sentence is death, the Supreme Court has the appellate  
          jurisdiction over the case.  In all other criminal cases the  
          Supreme Court has the authority to transfer the case to a court  
          of appeal.  This Constitutional Amendment gives the Supreme  
          Court the authority to transfer to a court of appeal a sentence  
          of death.

          The concept for this Constitutional Amendment was most recently  
          initiated by Chief Justice George in a November 19, 2007, press  
          release where the Chief Justice noted that the proposed  
          amendments to the Constitution were designed to:

              (1) promote the public's and the litigants' interests in  
              both fair and reasonably prompt disposition of capital  
              appeals; 

              (2) through a broadened review process, ensure that, as  
              presently, the Supreme Court allows no death penalty  
              judgment to be affirmed or reversed unless the court  
              determines that result to be legally correct; and 





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              (3) permit the Supreme Court to devote its limited time  
              and resources to significant capital issues and to other  
              important appellate litigation.  (News Release, Supreme  
              Court Proposes Amendments to Constitution in Death  
              Penalty Appeals, Nov. 19, 2007.)

          Prior to the press release of the Chief Justice's press release,  
          Senior Judge Arthur Alarcon of the U.S. Court of Appeals for the  
          Ninth Circuit made a number of suggestions to deal with the  
          delay in the implementation of the death sentence in California  
          stating:

              [T]he California Legislature should amend the state  
              constitution to provide that the California Courts of  
              Appeal should have jurisdiction to review automatic  
              appeals from death penalty judgments.  It should not  
              continue to blind itself to the fact that the seven  
              members of the California Supreme Court are unable to  
              keep up with the increasing backlog of automatic death  
              penalty appeals awaiting disposition.  (Arthur L.  
              Alarcon, Remedies for California's Death Row Deadlock,  
              80 U.S.C.L. Rev. 697, 727.)

          3.    Effect of Moving Appeals to Appellate Courts  

          a. Makes the Supreme Court available for other cases.

          One of the rationales for moving death penalty appeals to the  
          appellate courts is that the number of death penalty cases has  
          increased to the extent that it severely limits the Supreme  
          Court's ability to decide key legal issues arising in the state  
          in other criminal or civil matters.  According to the January  
          23, 2008, report from the Judicial Council on "Capital Appeals:  
          Constitutional Amendment Involving Processing of Capital Cases  
          (Cal. Const., Article VI 12):

              From 1940 until the early 1970s, death penalty appeals  
              constituted roughly 5 to 10 percent of the state Supreme  
              Court's docket.  Today, about 20 to 25 percent of the  
              court's time is dedicated to death penalty appeals, and  




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              it has remained so for the past two decades.  Even at  
              that rate, a backlog of 80 fully briefed capital cases  
              is currently pending before the Supreme Court.   
              Additionally, because of longstanding challenges  
              relating to recruitment of counsel, the Supreme Court  
              has a backlog of about 80 death row inmates without  
              appellate counsel.  The Supreme Court is working on  
              improving the recruitment of counsel, but as counsel are  
              appointed in these cases, the Supreme Court will face an  
              even greater backlog of fully briefed capital cases.   
              This situation threatens the state Supreme Court's  
              institutional role of presiding over the development of  
              the law and its ability to grant review in and decide  
              issues of statewide importance arising in civil and  
              criminal matters.

          While this bill permits the Supreme Court to transfer cases to  
          the appellate courts, according to the Judicial Council's  
          report, it is contemplated that the capital appeals would still  
          be filed in the Supreme Court before it is transferred and the  
          Supreme Court would, according to this Constitutional Amendment,  
          still review the resulting decision of the court of appeal.   
          Thus, the Supreme Court will still be reviewing at some level  
          each death penalty case before and after the appellate court  
          hears the case. 

          IF THE COURT WILL STILL BE REVIEWING THE CASES BEFORE AND AFTER  
          THEY ARE HEARD IN THE APPELLATE COURT, WHAT IS THE TIME SAVINGS  
          FOR THE COURT SYSTEM AS A WHOLE?

          b. Change to appellate court workload.

          "The Legislature has divided the state geographically into six  
          appellate districts, each containing a Court of appeal.   
          Currently, 105 appellate justices preside in nine locations in  
          the state to hear matters brought for review."  (2009 Judicial  
          Council Court Statistics Report, Introduction  
           www.courtinfo.ca.gov/reference_3stats.htm  .)  Under this proposed  
          Amendment, the Supreme Court would be permitted to transfer  
          cases to these appellate courts.  While not required under this  




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          Amendment, in his article Judge Alarcon analyzed how the work  
          would be distributed if the district in which the death verdict  
          was imposed would be assigned the case:

              If the Courts of Appeal had jurisdiction over automatic  
              appeals of the judgments of death entered since 1978,  
              the distribution by Courts of Appeal Districts would  
              have been as follows: 

              14% in the First District 
              34% in the Second District 
              10% in the Third District 
              26% in the Fourth District 
              11% in the Fifth District 
              5% in the Sixth District 

              This means that for an average of twenty-eight new death  
              penalty cases each year, the average annual increase in  
              work load for the Courts of Appeal Districts would have  
              been:

              First District: Four cases 
              Second District: Nine cases
              Third District: Three cases
              Fourth District: Seven cases
              Fifth District: Three cases
              Sixth District: Two cases (Alarcon, id at 732-733)

          According to Alarcon:

          These statistics demonstrate that shifting the jurisdiction  
          over automatic appeals from death penalty judgments could be  
          absorbed by the Courts of Appeal and would thereby relieve  
          the California Supreme Court of an increasing backlog of  
          capital cases.  (Alarcon, id at 733.)
               
          c. Staff in Supreme Court and appellate courts.

          Currently, the Supreme Court has staff that reviews death  
          penalty cases.  Under this Amendment they would still need to  




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          have at least some staff to review these complex cases before  
          they are reassigned to the appellate courts and again when an  
          appellate decision is being reviewed.  Because these are complex  
          cases, even if the number of cases that would be assigned to  
          each appellate district would not be great, additional staff  
          would likely be needed to work on these cases.  In addition,  
          additional Justices may be needed to hear the cases.  Even if  
          the number of cases per appellate district may not be  
          significant, the size and complexity of death penalty cases may  
          interfere with appellate courts' decisions to hear other  
          criminal or civil matters with out such additional staffing.

          In opposition, the ACLU points to staffing concerns stating:

              The appellate courts in California are not equipped to  
              take on death penalty cases. The fiscal crisis has left  
              every court understaffed and overwhelmed.  The  
              California Supreme Court already has specially trained  
              clerks who only handle death penalty cases.  The  
              appellate courts have no such support and, given the  
              fiscal crisis, will not receive such support.

          WILL MONEY BE AVAILABLE FOR THE ADDITIONAL STAFFING OR JUDGES  
          THAT MAY BE NECESSARY?

          d. Consistency in decisions. 

          One of the rationales for having the Supreme Court as the  
          appellate court in death penalty cases is so that there will be  
          consistency in the holdings on these cases dealing with the  
          ultimate punishment.  In their rationale for supporting a  
          recommendation like this Amendment, the Judicial Council  
          asserts:

              During the past two decades, approximately 400 Supreme  
              Court capital opinions, and numerous decisions by the  
              United States Supreme Court, have settled the vast  
              majority of legal questions concerning capital  
              litigation as presently practiced in California.   
              Although capital appeals are very lengthy and  




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              time-consuming, they now very frequently present only  
              the application of settled law to specific facts, which  
              is precisely the type of review that the Court of Appeal  
              typically undertakes.  Thus the reasons for the Supreme  
              Court initially to review, hold oral argument, and file  
              a written decision in all such matters are no longer  
              compelling, as long as the Supreme Court ultimately  
              reviews each Court of Appeal decision affirming or  
              reversing a judgment imposing the penalty of death not  
              only for ensuring uniformity and answering important  
              questions of law, but also for correcting error  
              affecting the judgment, including whether the Court of  
              Appeal erred in assessing prejudice.  (California  
              Judicial Council "Report on Capital Appeals:  
              Constitutional Amendment Involving Processing of Capital  
              Cases (Cal. Const., art. VI 12)" January 23, 2008,  
              p.2-3.)

          On the other hand, the ACLU notes:

              Every state but Alabama requires the highest court in  
              the state to review every death penalty case for a  
              reason: to ensure that the state does not make a  
              mistake.  Death penalty cases are unique.  They are more  
              complicated and the stakes are higher than any other  
              type of case.  Nearly every state in the country  
              recognizes that requiring the most skilled and heavily  
              resourced judges in the state to review each death  
              penalty case is the best way to ensure that these cases  
              have been done correctly and that no innocent person is  
              put to death.

          The ACLU further argues that without the staffing discussed  
          above:

              [T]he appellate courts will take longer to review death  
              penalty cases and will make more mistakes.  Ultimately,  
              the Supreme Court will again be required to scrutinize  
              each case, turning what is now a one step process into  
              two.  The appellate courts will also have less time to  




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              address civil cases, causing even greater backlogs and  
              delaying access to justice for thousands.

          Even if much of the death penalty law is settled, how that law  
                                                          is applied by a specific appellate court can vary.  Areas of the  
          law such as whether or not something was a harmless error can be  
          interpreted very differently.  Evidentiary issues can also have  
          many interpretations.  

          WILL CONSISTENCY IN CASES BE MAINTAINED EVEN THOUGH THE CASES  
          ARE HEARD IN DIFFERENT APPELLLATE DISTRICTS?






          4.   Will This Change Alone Have a Real Impact on Backlog  ?

          a. Availability of Counsel.

          One of the consistent issues arising with taking care of the  
          backlog of cases is the problem with finding competent counsel.   
          Death Penalty appeals are complex cases so, despite some  
          Legislative attempts in the past to lower the competency  
          standards, the Court and the Legislature have maintained that  
          attorneys appointed to these cases shall meet basic competency  
          standards with regards to their experience.  This limits the  
          number of attorneys who may be appointed to do these cases.   
          From that number of attorneys, those willing to do these cases,  
          is further limited by the emotional toll these cases can take on  
          a person.  Finally, the fact that the $145 hour pay is less than  
          half what the Federal courts have been determined to be adequate  
          compensation for experienced attorneys in a civil case (Alarcon,  
          id. p. 719).  Furthermore, the California Commission on the Fair  
          Administration of Justice (CCFAJ) learned that some of those  
          attorneys willing to take on a death penalty case can no longer  
          afford to live in California.  (The California Commission on the  
          Fair Administration of Justice Report and Recommendations on the  
          Administration of the Death Penalty in California, June 30, 2008  




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          p.47.)  In his article Judge Alarcon notes:











































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              There is no justification for the Legislature's failure  
              to address the longstanding shortage of qualified  
              counsel.  Private practitioners who can bear the  
              financial sacrifice of accepting a court-appointment at  
              the present hourly rates are scarce.  Accepting an  
              appointment to represent a death row inmate on direct  
              appeals requires a lawyer to devote an average of more  
              than eleven years to protecting the inmate's interests.   
              (Alarcon, id at 734.)

          It is not clear whether moving these cases to the appellate  
          courts will have an impact on the willingness of appointed  
          counsel to take on a case.  It may have no effect, on the other  
          hand an attorney based in the bay area or Los Angeles may not be  
          interested in taking case that they need to argue in Fresno or  
          Riverside in front of appellate justices they are not familiar  
          with.

          b. California Commission on the Fair Administration of Justice  
          Recommendation.

          In its July 20, 2008, Report and Recommendations on the  
          Administration of the Death Penalty, the California Commission  
          on the Fair Administration of Justice (CCFAJ) found that the  
          death penalty system in California is dysfunctional and  
          suggested remedies to fix it.  Among the recommendations  
          included an increase in the budgets of both the Office of the  
          State Public Defender and the Office of the Habeas Corpus  
          Resource Center as well as increased funding for private counsel  
          in order to address the unavailability of qualified, competent  
          appellate and habeas counsel in death penalty cases.  CCFAJ also  
          studied the cost savings of narrowing the special circumstances  
          or having a system of life without parole instead of the death  
          penalty.  Finally, CCFAJ upon hearing testimony from the Chief  
          Justice and reading Justice Alarcon's article, recommended  
          consideration of allowing the Supreme Court to give to transfer  
          to the appellate court fully briefed pending death penalty  
          appeals as is provided for in this Constitutional Amendment.   
          However, CCFAJ conditioned their recommendation of this proposal  




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          on the concurrent adoption of the following recommendations:

                         Increased funding for the Office of the State  
                   Public Defender.
                         Increased funding for the California Habeas  
                   Corpus Resource Center.
                         Increased funding for the Attorney General's  
                   Office.
                         Increased funding and requirements to assure all  
                   appointed counsel meet ABA guidelines.
                         Funds be available to fully reimburse counties  
                   for payments of defense services.
                         That the Legislature re-examine the current  
                   limitations on reimbursement to counties for expenses  
                   in homicide trials.
                         That counties provide adequate funding for the  
                   appointment and performance of trial counsel.
                         That a Death Penalty Review Panel is established  
                   to annually report on the progress of the courts in  
                   reducing delays, monitoring implementation of CCFAJ's  
                   recommendations and examining ways of providing  
                   safeguards.  (CCFAJ, id at pp. 6-14.)

          IS THIS AMENDMENT AN APPROPRIATE REFORM WITHOUT ADDITIONAL  
          FUNDING FOR COUNSEL AND OTHER RECOMMENDATIONS TO REFORM THE  
          DEATH PENALTY?


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