BILL ANALYSIS Ó
SB 490
Page 1
Date of Hearing: August 17, 2001
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 490 (Hancock) - As Amended: August 15, 2011
Policy Committee: Public
SafetyVote:5-2
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill, upon approval of the voters in November 2012 general
election, substitutes life-without-possibility-of-parole (LWOP)
for the death penalty as punishment for persons convicted of
first-degree murder with special circumstances. This bill states
that in any case where a defendant was sentenced to death prior
to or following enactment of this measure, upon voter approval,
the sentence of each defendant shall convert to LWOP.
FISCAL EFFECT
Moderate one-time GF costs, in the range of $220,000, for ballot
arguments and printing, offset by major annual GF, local, and
federal savings in the range of $150 million - if the measure is
approved by the voters - primarily from reduced legal costs.
Specifically:
1)Assuming a cost of about $55,000 per ballot pamphlet page,
one-time GF costs for ballot arguments and printing would be
about $220,000.
2)The cumulative annual state and local court-related savings
from converting the death penalty to LWOP could range from
about $75 million to $100 million, according to two recent
studies - A 2011 Loyola University Law review study, Executing
the Will of the Voters?: A Roadmap to Mend or End the
California Legislature's Multi-Million-Dollar Death Penalty
Debacle (Loyola), by Arthur Alarcon, Senior Judge, U.S. Court
of Ninth Circuit Court of Appeals, and former L.A. County
Deputy D.A., and Paula Mitchell, Professor of Law, Loyola Law
School, and the 2008 Final Report of the California Commission
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on the Fair Administration of Justice (Commission), chaired by
John Van de Kamp, former California Attorney General.
Specifically, these annualized savings break down as follows:
a) Annual Pre-trial and trial costs in the range of $20 to
$40 million (GF, with county funds for prosecution) based
on the average number of annual death penalty cases. The
Loyola study estimated a death penalty trial costs about $1
million more than a non-death penalty trial, while the
Commission estimated what they termed a "conservative"
differential of $500,000 per trial. These savings include:
i) No need for two death-penalty-qualified, usually
taxpayer-funded, attorneys per side.
ii) Death penalty trials
generally require multiple investigators and expert
witnesses.
iii) Death penalty jury selection
takes considerably longer than non-death penalty cases.
iv) Death penalty trials require
two phases, a guilt phase and a separate penalty phase.
v) Required daily court transcripts.
b) Automatic state appeal and habeas costs (GF) in the
range of $55 million, including:
i) California Supreme Court: $15 million
ii) Habeas Corpus Resource Center: $14
million
iii) State Public Defender: $12 million
iv) Attorney General's Office:
$13 million
3)In addition to the potential $75 million to $100 million
annual state and local court-related savings, there will be
some amount of GF incarceration savings. The California
Department of Corrections (CDCR) estimates an annual savings
of less than $10 million, while the Loyola and Commission
studies suggest there would be significant annual GF
incarceration savings in the range of $60 to $70 million,
though both studies acknowledge the lack of documentation for
these estimates.
The studies assume an annual cost differential of about
$90,000 per death row inmate, due to such factors as
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single-celling, extra guarding, and medical costs, though the
study concedes this figure cannot be substantiated. CDCR
estimates an annual differential of about $12,000, which
amounts to an annual savings of about $8.5 million.
4)In addition to the $75 million to $100 million annual and
local savings, there would be annual federal habeas cost
savings in the range of $15 million.
5)Potential one-time capital outlay savings, in the range of
$350 million, to the extent eliminating the need for a death
row removes the legal and physical pressure to renovate or
build new death row housing. The current death row at San
Quentin is antiquated by all accounts and will eventually need
to be replaced. Gov. Brown recently aborted the $350 million
1,200 bed Condemned Inmate Complex at San Quentin, but
conditions of confinement legal challenges will continue, as
will the physical challenges of San Quentin's dilapidated
death row.
6)Negligible potential out-year costs as a result of longer LWOP
terms, as opposed to executions. Given that the average time
between sentence and execution in California is about 24 years
and growing, due to severe backlogs in appointment (and
availability) of counsel for direct appeals and habeas
petitions, as well as severe backlogs in review of appeals and
habeas petitions by the courts, and given that 13 persons have
been executed in California in 33 years, while 102 death row
inmates have died, and 133 have had their sentences vacated by
state and federal courts, it is unlikely substituting LWOP for
the death would result in additional incarceration costs.
COMMENTS
1)Rationale . The author and proponents contend capital
punishment in California is a costly failure with no
demonstrable deterrent effect, which serves only to drain
state and local budgets of funds at the expense of actually
protecting public safety.
The author cites several studies that question the value of
supporting the death penalty structure, at an annual cost of
at least $100 million, when the death penalty "is the law in
name only, and not in reality," (Commission) and cites $4
billion in related capital punishment expenditures since 1978,
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with 13 executions in that time.
According to the author, "Study after study has shown that
capital punishment as a penalty is not a deterrent and that
the multiple appeals that drag on for years and years multiply
costs and add to the uncertainty and anxiety of victims.
"The death penalty failings cannot be fixed. Distinguished
prosecutors such as Los Angeles County's long-time DA Gil
Garcetti have come out against it. It is time for the
Legislature to act.
"It is not simply a cost issue. More than a dozen people were
wrongly executed in Illinois before that state banned the
death penalty earlier this year. I don't want to see that
kind of tragic statistic in California. We need to join
Illinois and the 15 other states that have chosen to
substitute life imprisonment without the possibility of parole
for a failed death penalty.
"Today, we're not tough on crime; we're tough on the taxpayer.
Every time we spend money on failed policies like the death
penalty, we drain money from having more police officers on
the street, more job training, more education, more of the
things that would truly make for safer communities."
2)Recent reports criticize the cost and administration of the
death penalty in California, and urge major change. Several
recent reports by authors and/or entities that claim
neutrality on the existence of capital punishment state that
the death penalty is so costly, so cumbersome, and so rarely
carried out, that alternatives must be considered, such as (a)
narrowing the application to a more limited set of special
circumstances to encompass the worst of the worst, which could
dramatically reduce costs and backlogs; (b) a significant
annual expenditure increase (in the range of $100 million) for
defense counsel, which would reduce, but hardly eliminate
backlogs (by some estimates doubling annual expenditures would
decrease the average 24-year gap between sentence and
execution to about 12 years); or (c) abolishing the death
penalty, replacing it with LWOP, the most fiscally
conservative alternative.
a) The Loyola report posits that the effect of California's
failure to reform its capital punishment system "has been
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the perpetration of a multi-billion fraud on California
taxpayers."
The report concludes, "The truth is that California's
administration of the death penalty has produced
unconscionable delays - not justice. It is unjust to
incarcerate condemned prisoners on death row for decades
without reviewing their federal constitutional claims while
many who may have been entitled to release or to a new
trial or sentence proceeding die.
"California's voters must decide whether the death penalty
system should be reformed or abolished because the cost of
maintaining the current system without reform is
unsupportable."
b) The Commission report states, "After careful study, the
Commission finds itself in full agreement with (former)
California Chief Justice Ron George in his conclusion that
California's death penalty system is dysfunctional.
"The system is plagued with excessive delay in the
appointments of counsel for direct appeals and habeas
corpus positions, and a severe backlog in the review of
appeals and habeas petitions in the California Supreme
Court?.
"The failures in the administration of California's death
penalty law create cynicism and disrespect for the rule of
law, increase the duration and cost of confining death row
inmates, weaken any possible deterrent benefits of capital
punishment, increase the emotional trauma experienced by
murder victims' families, and delay the resolution of
meritorious capital appeals."
c) Struck by Lightning: The Continuing Arbitrariness of the
Death Penalty Thirty-Five Years After its Re-instatement in
1976 , 2011, a report by the Death Penalty Information
Center, concludes, "As the use of the death penalty has
declined, the rationale for its continuation has
disappeared. With defendants already facing LWOP, no one is
likely to be deterred by an added punishment that is rarely
imposed and even more rarely carried out many years later,
and that is dependent on so many unpredictable factors. Nor
does the wish for retribution justify a death penalty that
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is applied so sporadically. The reality is that those in
society generally, and those families of murder victims in
particular, who look to an execution to counter a terrible
homicide will likely be very disappointed. Very few of
those cases result in execution, and those that do are
often not the most heinous, but merely the most unlucky,
recalling Justice Stewart's comparison in 1972 that
receiving the death penalty is like being struck by
lightning." ("These death sentences are cruel and unusual
in the same way that being struck by lightning is cruel and
unusual.")
3)Backlogs. California has the longest gap between sentence and
execution, about 24 years and growing. Reasons for this gap
include:
a) Delay in appointing counsel to handle direct appeals to
the state Supreme Court. About 100 inmates are awaiting
appointment of counsel. The current wait is about five
years.
b) Delay in scheduling the case for a hearing before the
state Supreme Court, which has a backlog of about 100
cases. Former Chief Justice Ron George, testifying to the
Commission said, "Even if the California Supreme Court
abandoned its review of all other matters and reviewed only
death penalty cases, it would take a minimum of three to
four years to process the existing backlog of death penalty
appeals and state habeas corpus petitions."
c) Delay in appointing counsel for state habeas petitions.
Some 325 inmates await appointment of counsel to handle
these petitions, with delays of about 10 years.
d) Delay in appointing counsel for federal habeas petitions
and appeals, and in deciding petitions and appeals, with
delays of about 10 years.
As the Commission noted, "While it is widely assumed that
delays benefit those confined on death row by prolonging their
lives, it should be noted that California inmates with
meritorious claims are also denied prompt disposition of those
claims. In cases where the judgment of guilt and/or the
sentence were vacated between 1987 and 2005, the average delay
was 11 years."
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4)Current law makes first-degree murder with special
circumstances punishable by death or LWOP and limits the death
penalty to cases where the trial jury finds at least one
special circumstance. Currently, the Penal Code lists 22
separate categories of special circumstances.
a) The murder was intentional and carried out for financial
gain.
b) The defendant was convicted previously of first- or
second-degree murder.
c) The defendant, in the present proceeding, is convicted
of more than one murder.
d) The murder was committed by means of a planted
destructive device.
e) The murder was committed to avoid arrest or make an
escape.
f) The murder was committed by means of a mailed
destructive device.
g) The victim was a peace officer intentionally killed
while performing his or her duties.
h) The victim was a federal law enforcement officer who was
intentionally killed.
i) The victim was a firefighter intentionally killed while
performing his or her duties.
j) The victim was a crime witness killed to prevent
testimony.
aa) The victim was a prosecutor murdered in retaliation for
official duties.
bb) The victim was a local, state, or federal judge murdered
in retaliation for official duties.
cc) The victim was an elected or appointed official murdered
in retaliation for official duties.
dd) The murder was especially heinous, atrocious, or cruel.
ee) The defendant intentionally killed the victim while
lying in wait.
ff) The victim was intentionally killed because of his or
her race, color, or religion.
gg) The murder was committed while the defendant was engaged
in the commission of the following crimes: robbery;
kidnapping; rape; sodomy; lewd or lascivious act on a child
under age 14; oral copulation; burglary; arson; train
wrecking; mayhem; rape by instrument; carjacking; torture;
poison; the victim was a local, state or federal juror
murdered in retaliation for, or to prevent the performance
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of his or her official duties; and, the murder was
perpetrated by discharging a firearm from a vehicle.
hh) The murder was intentional and involved torture.
ii) The defendant intentionally killed the victim by poison.
jj) The victim was a juror murdered in retaliation for
official juror duties.
aaa) The murder was intentional and committed by firearm from
a motor vehicle.
bbb) The defendant intentionally killed the victim while
participating in a criminal street gang.
First-degree murder without special circumstances is
punishable by 25-years-to-life.
5)Brief History of the Recent Death Penalty . In 1972 the
California Supreme Court held the death penalty constituted
cruel and unusual punishment under the state constitution
(Anderson), and all death sentences were commuted to LWOP.
Also in 1972, the U.S. Supreme Court held the death penalty
was being administered in an arbitrary fashion that amounted
to cruel and unusual punishment (Furman). (States halted
executions in 1967, anticipating a U.S. Supreme Court ruling.)
The U.S. Supreme Court did not rule on the constitutionality
of the death penalty itself at this time, and many states
re-wrote their statutes in an effort to address the issue of
arbitrariness.
In 1976 the U.S. Supreme Court declared the death penalty
constitutional, assuming new stae statutes would sufficiently
address issues of arbitrariness, and executions resumed in
some states.
In California, nine months after Anderson, California voters
nullified Anderson, passing Proposition 17, which amended the
Constitution to specify the death penalty is not cruel and
unusual punishment. In 1973, the Legislature enacted statute
making the death penalty mandatory for first-degree murder and
one or more of 10 special circumstances. The state Supreme
Court, however, held this mandatory death penalty was
unconstitutional, as it disallowed consideration of
circumstances.
In 1977 the California Legislature passed legislation
re-establishing capital punishment and providing for a
separate penalty phase at trial, based on 12 special
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circumstances. Gov. Jerry Brown promised to veto the bill and
he did. The Legislature overrode the veto. The 1977 statute
also brought California into conformity with federal
requirements.
In 1978 Proposition 7 added 16 special circumstances, and the
first execution under the re-established death penalty
occurred.
In 1990, Propositions 114 and 115 added five more special
circumstances.
In 1996, Propositions 195 and 196 added three more special
circumstances.
In 2000, Propositions 18 and 21 added three more special
circumstances.
6)Current Death Penalty Statistics . Thirty-four states have
capital punishment. California has the largest death row in
the country, with 714 condemned inmates. Since
re-establishment of capital punishment in 1978, 13 persons
have been executed in California, and 1,263 nationwide.
California has not executed anyone since 2006. There were
about 3,300 inmates on death row in the U.S. as of last
November. Florida has 400, Texas, 325, Pennsylvania, 225, and
Alabama, 205. Since 1976 Texas has executed 472 persons;
Virginia, 108; Oklahoma, 96; Florida, 69; and Missouri, 68.
In California men on death row are housed at San Quentin and
women at the Central California Women's Facility near
Chowchilla. There are 19 women on death row. Ethnicity: white,
36%; black, 36%; Hispanic, 22%; other, 5%. Age: 20-29, 3%;
30-39, 20%; 40-49, 35%; 50-59, 29%; 60-69, 12%; 70-89, 1%.
7)Other States. Of the 16 states without capital punishment,
three abolished the death penalty within the past four years.
New Jersey repealed the death penalty and commuted all death
sentences to LWOP in 2007 after its death penalty commission
concluded "costs of the death penalty are greater than the
costs of life in prison without parole?"
New Mexico repealed the death penalty in 2009, based on its
fiscal report.
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Illinois eliminated the death penalty last March after 13
condemned persons were found to be innocent. The Illinois
commission report on capital punishment stated, "The
Commission was unanimous in the belief that no system, given
human nature and frailties, could ever be devised or
constructed that would work perfectly and guarantee that no
innocent person is ever again sentenced to death."
A death penalty commission in Maryland estimated that the
average cost of a death penalty case was about $2 million more
than a non-capital case and recommended abolition of the death
penalty. The recommendation was rejected, and Maryland revised
its death penalty to apply only to cases with biological
evidence, such as DNA, or videotaped evidence, or a videotaped
confession.
Twelve of the 34 remaining death penalty states have requested
cost review studies.
8)Other Nations . According to a 2010 Amnesty International
Report, 95 countries have no death penalty, 35 have no death
penalty in practice, and 58 retain the death penalty. In 2009
eight countries sentenced more than 100 persons to death:
China (number unknown); Iraq, more than 366; Pakistan 276;
Afghanistan, more than 133; Sri Lanka, 108; the U.S., 105; and
Algeria, 100. In 2009, five countries executed more than 50
persons: China (number unknown); Iran more than 388; Iraq,
more than 120; Saudi Arabia, more than 69; and the U.S., 52.
In North and South America and Europe, only the U.S. executed
anyone in 2009.
9)Innocence Issues. According to the Death Penalty Information
Center, between 1973 and 2007, nationally 138 death row
inmates have been exonerated and released from death row.
The Commission cites 205 exonerations of persons convicted of
murder nationally between 1989 and 2003, including 74
sentenced to death. Fourteen of the exonerations occurred in
California, three were on death row.
"The commission has learned of no credible evidence that
California has ever executed an innocent person. Nonetheless,
the Commission cannot conclude with confidence that the
administration of the death penalty in California eliminates
the risk that innocent persons might be convicted and
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sentenced to death."
10)Retroactive Application. This bill specifies that in any case
where a death sentence was imposed prior to enactment of the
act, the sentence shall convert to LWOP. The Assembly Public
Safety Committee analysis of this bill includes a discussion
in reference to this provision.
The California Supreme Court held in In re Estrada (1965) 63
Cal.2d 740 that when, pending finality of a conviction, the
Legislature reduces the penalty for that offense, the
defendant is entitled to the benefit of that change in the
law. However, the retroactivity provisions of this bill apply
to judgments that are already final. The Estrada court noted,
"It is an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to
which it constitutionally could apply. The amendatory act
imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided
the judgment convicting the defendant of the act is not
final."
Estrada draws a distinction between final and non-final
judgments because of the separation of powers doctrine. "This
doctrine unquestionably places limits upon the actions of each
branch with respect to the other branches. The judiciary, in
reviewing statutes enacted by the Legislature, may not
undertake to evaluate the wisdom of the policies embodied in
such legislation; absent a constitutional prohibition, the
choice among competing policy considerations in enacting laws
is a legislative function. The executive branch, in expending
public funds, may not disregard legislatively prescribed
directives and limits pertaining to the use of such funds.
And the Legislature may not undertake to readjudicate
controversies that have been litigated in the courts and
resolved by final judicial judgment." ÝSuperior Court v.
County of Mendocino (1996) 13 Cal.4th 45, 53, citations
omitted.] Therefore, an automatic conversion of a death
sentence to LWOP arguably violates the separation of powers
doctrine.
It can also be argued, however, that the bill's retroactivity
provision can apply to final judgments without violating the
separation of powers doctrine. To execute a defendant after
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the state has abolished the death penalty because his or her
judgment was already final would give rise to equal protection
challenges under the state and federal constitutions. The two
groups of prisoners would be similarly situated since the only
thing distinguishing them would be the date of finality of
their judgments. Likewise, because of the legislative
declarations regarding abolition of the death penalty as a
cost-saving measure, the effect of altering final judgments of
death might be viewed as incidental to a larger legislative
purpose restructuring a class of sentences in order to realize
the intended cost savings.
11)Supporters , including the ACLU, the defense bar and the CA
Catholic Conference contend this bill will save money, enable
funding to be refocused on protecting public safety, and
provide justice to victims and offenders alike.
According to the ACLU, "With sentences of life without
possibility of parole, we can hold criminals accountable,
provide victims with the finality they deserve, and keep
dangerous criminals behind bars for the rest of their lives.
In addition, we eliminate the terrible risk of executing an
innocent person. Finally, with the money we save, we can
support criminal justice policies that actually work, like
increasing law enforcement, which makes a positive difference
in the safety of our community.
According to the Conference of California Bar Associations,
"SB 490 is a practical bill. Whatever one may think of the
death penalty as a moral issue, it is clear that California's
death penalty law may well be the most expensive and least
effective in the nation."
12)Opponents , including a long list of law enforcement
organizations, contend the death penalty is an effective
deterrent and that its elimination would disrespect victims.
According to Crime Victims United of California, "With all due
respect, SB 490 is an insult to murder victims. Such action
says to victims that even though you have waited decades for
justice, that justice is too expensive and not important to
the State of California. California's execution process moves
along at an incredibly slow pace, allowing for a virtually
unending time frame for appeals - a major cost driver. That
said, twelve-member juries unanimously found these criminals
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guilty beyond a reasonable doubt. Even though the jurors faced
the agonizing choice of deciding whether a convicted murderer
should die or spend the rest of his or her life in prison,
decided that the aggravating factors outweighed the mitigating
factors, and voted unanimously in favor of execution."
The CA District Attorneys Association states, "First, we must
convey that we as an association share the public's support of
the death penalty. As it is currently constituted, the death
penalty is a legally appropriate response to the most heinous
crimes that can be committed. The death penalty deters future
criminality, especially by permanently incapacitating
potential repeat offenders, and acknowledges the fact that
certain offenses are so serious that a penalty for violations
thereof as strong and final as death must be available?.
"Further, we feel the conversion of these sentences raises
potential constitutional separation of powers issues inasmuch
as the Legislature would be effectively changing sentences
that were appropriately imposed by the judiciary."
13)Related Legislation includes:
a) SB 1025 (Harman), 2010, required the Supreme Court to
develop necessary rules and procedures for initiating
habeas petitions in the Superior Court. The bill failed
passage in Senate Public Safety.
b) SB 1471 (Runner), 2008, required habeas petitions in
death penalty cases to be filed within one year, changed
the standards for competent counsel; and provided that
habeas petitions in capital cases be filed in superior
court. The bill failed in Senate Public Safety
c) SB 315 (Harman), 2007, required all appellate attorneys
who accept appointments for indigent parties to accept
appointments for capital appeals regardless of
qualifications. The bill, which was a gut and amend in the
Assembly, failed in Assembly Public Safety.
d) SB 636/SB 378 (Harman/Morrow), 2007/2005, created a new
type of post-conviction review in capital cases instead of
habeas corpus and changed the standards for counsel in
capital cases. The bills failed in Senate Public Safety.
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e) SB 1257 (Morrow), 2006, expedited the appellate process
for capital cases by specifying timeframes for appointment
of counsel, certification of the record and filing of the
opening brief, and by requiring any person appointed to a
non-capital appeal to also be available to take a capital
appeal. The bill failed in Senate Public Safety.
f) SB 1119 (Migden), 2006, required the Board of Parole
Hearings to conduct clemency hearings whenever an inmate
sentenced to death submits a written request for a hearing.
The bill was held in this committee.
g) AB 2266/AB 1121, (Lieber/Koretz), 2006, placed a
moratorium on the death penalty until the Legislature
considered recommendations of the Commission on the Fair
Administration of Justice. Required voter approval. The
bills were held in this committee.
h) AB 1512/557 (Aroner), 2001/2002, prohibited the death
penalty for people determined to be mentally retarded. AB
1512 was held in this committee. AB 557 failed concurrence
on the Assembly Floor.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081