BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session C
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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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