BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session C A 2 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 (More) SCA 27 (Harman) PageB 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.) (More) SCA 27 (Harman) PageC 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 (More) SCA 27 (Harman) PageD 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 (More) SCA 27 (Harman) PageE 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). (More) SCA 27 (Harman) PageF 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 (More) SCA 27 (Harman) PageG (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 (More) SCA 27 (Harman) PageH 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 (More) SCA 27 (Harman) PageI 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 (More) SCA 27 (Harman) PageJ 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 (More) SCA 27 (Harman) PageK 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 (More) SCA 27 (Harman) PageL 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 (More) SCA 27 (Harman) PageM p.47.) In his article Judge Alarcon notes: (More) 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 (More) SCA 27 (Harman) PageO 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? ***************