BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 779 (Anderson)
As Amended April 1, 2013
Hearing date: April 30, 2013
Government and Penal Codes
MK:mc
CAPITAL PUNISHMENT: APPEALS
HISTORY
Source: California District Attorneys Association
Prior Legislation: SB 1372 (Runner) - not heard Senate Public
Safety, 2012
SB 1515 (Anderson) - failed Senate Public Safety,
2012
AB 1359 (Huffman) - failed Assembly Public Safety,
2009
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 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
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AB 2462 (Morrow) - held in Senate
Approps. 1996
AB 2008 (K. Murray) - vetoed, 1996
AB 1508 (Bowler) - held in Assembly
Public Safety, 1993
AB 2196 (Bentley) - failed in Assembly
Public Safety, 1991
Support: Unknown
Opposition:California Catholic Conference, Inc.; California
Appellate Defense Counsel; Friends Committee on
Legislation of California; American Civil Liberties
Union; California Public Defenders Association;
California Attorneys for Criminal Justice; Legal
Services for Prisoners with Children; Taxpayers for
Improving Public Safety
KEY ISSUE
SHOULD NUMEROUS CHANGES BE MADE TO THE DEATH PENALTY PROCESS IN
CALIFORNIA?
PURPOSE
The purpose of this bill is to change the way the death penalty
is carried out in California.
The California Constitution provides "[h]abeas corpus may not
be suspended unless required by public safety in cases of
rebellion or invasion." (Cal. Const., art. I � 11.)
The California Constitution , in pertinent part, provides that
"[t]he Supreme Court, court of appeal, superior courts, and
their judges have original jurisdiction in habeas corpus
proceedings. . . ." (Cal. Const., art. VI � 10.)
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The California Constitution , in pertinent part, provides that
"[t]he Supreme Court has appellate jurisdiction when judgment of
death has been pronounced. . . ." (Cal. Const., art. VI � 11.)
Existing law creates the Office of the State Public Defender.
The State Public Defender represents indigent defendants in
capital appeals at both the state and federal level and may
represent defendants in other appeals if the office "is
fulfilling the responsibilities to provide representation" in
the capital appeals or the State Public Defender determines a
limited number of cases are necessary for training. (Government
Code ��15402 et. seq.)
Existing law provides that the duties prescribed for the State
Public defender are not exclusive and he may perform any acts
consistent with them in carrying out the functions of the
office. (Government Code � 15425.)
This bill deletes Government Code Section 15425.
This bill provides that the State Public Defender shall report
annually to the Governor and the Legislature on the status of,
and appointment of counsel for, indigent persons with respect to
appeals under Section 11 of Article VI of the California
Constitution.
Existing law provides that the Judicial Council shall adopt
rules of court regulating the selection of appointed counsel,
other than the State Public Defender, to handle criminal appeals
by indigent defendant. These rules shall establish procedures
for the appointment of counsel in all appellate districts. In
developing these rules, the Judicial Council shall consider the
need to include screening of eligible appointees, the need to
match the skills and experience of the attorney with the demands
of the case and the process by which this might be done, and the
need or desirability of evaluating an attorney's performance
before assigning the attorney to another case. (Government Code
� 68511.5.)
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Existing law creates the judicial branch the California Habeas
Corpus Resource Center (HCRC) which shall have all of the
following duties:
To employ up to 30 attorneys who may be appointed by the
Supreme Court to represent any person convicted and
sentenced to death in this state, who is without counsel
and who is determined by a court of competent jurisdiction
to be indigent, for the purpose of instituting and
prosecuting postconviction actions in the state and federal
courts, challenging the legality of the judgment or
sentence imposed against that person, and preparing
petitions for such executive clemency. Any such
appointment may be made concurrent with the appointment of
the State Public Defender or other counsel for the purpose
of direct appeal.
To seek reimbursement and expenses under federal law
when providing representation to indigent persons in
federal courts and process those payments.
To work with the Supreme Court in recruiting members of
the private bar to accept death penalty habeas case
appointments.
To establish and periodically update a roster of
attorneys qualified as counsel in postconviction
proceedings in capital cases.
To establish and periodically update a roster of
experienced investigators and experts who are qualified to
assist in postconviction proceedings in capital cases.
To employ investigators and experts as staff to provide
services to appointed counsel upon request of counsel,
provided that where the provision of those services is to
private counsel under appointment by the State Supreme
Court, those services shall be pursuant to contract between
appointed counsel and the center.
To provide legal or other advice or, to the extent not
otherwise available, any other assistance to appointed
counsel in postconviction proceedings as is appropriate
where not prohibited by law.
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To develop a brief bank of pleadings and related
materials on significant, recurring issues which arise in
postconviction proceedings in capital cases and to make
those briefs available to appointed counsel.
To evaluate cases and recommend assignment by the court
of appropriate attorneys.
To provide assistance and case progress monitoring as
needed.
To timely review case billings and recommend
compensation of members of the private bar to the court.
The center shall annually report to the Legislature,
Governor, and the Supreme Court on the status of the
appointment of counsel for indigent prisoners in
postconviction capital cases, and on the operations of the
office. (Government Code � 68661.)
Existing law provides the Supreme Court shall offer to appoint
counsel to represent all state prisoners subject to a capital
sentence for postconviction proceedings. (Government Code
� 68662.)
This bill provides that the superior court that imposed the
capital sentence shall offer to appoint counsel and that the
Legislature shall ensure funding is made available to fulfill the
requirements of appointment including considering utilizing funds
that were formally appropriated to the Supreme Court in order to
comply with the appointments.
This bill provides that the Habeas Corpus Resource Center shall
recommend attorneys on an annual basis to the Supreme Court for
inclusion in a roster of attorneys qualified as counsel in
postconviction proceedings in capital cases, provided that the
final determination of whether to include an attorney in the
roster shall be made by the Supreme Court and not delegated to
the center.
This bill provides that the Habeas Corpus Resource Center shall
report, in addition to reporting to the Legislature, Governor,
and Supreme Court, annually report to the people by way of its
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Internet Web site or other medium providing equal or better
public access.
This bill provides that the report by the Habeas Corpus Resource
Center shall list all cases in which the center is providing
representation. For each case that has been pending for more
than one year in any court, the report shall state the reason for
the delay and the actions the center is taking to bring the case
to completion.
This bill provides that the Habeas Corpus Resource Center (HCRC)
may represent a person sentenced to death on one federal habeas
corpus petition only if all the following requirements are met:
HCRC was appointed to represent that person on a state
petition for habeas corpus.
HCRC is appointed for that purpose by the federal court.
The executive director determines that compensation from
the federal court will fully cover the cost of
representation.
This bill provides that HCRC is not authorized to represent any
person on successive habeas corpus petitions or in any action
that constitutes a collateral attack on the judgment or seeks to
delay or prevent its execution.
This bill provides that HCRC shall not engage in any other
litigation or expend funds in any form of advocacy other than
that which is expressly authorized by statute.
Existing law provides that no counsel appointed to represent a
state prisoner under capital sentence in state postconviction
proceedings shall have previously represented the prisoner at
trial or on direct appeal in the case for which the appointment
was made, unless the prisoner and counsel expressly requests
continued representation. (Government Code � 68553.)
Existing law provides that HCRC shall be managed by an executive
director who shall be responsible for the day-to-day operations
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of the center and chosen by a five member board of directors
with Senate confirmation. Each Appellate Project shall appoint
one board member, all of whom shall be attorneys. However, no
attorney who is employed as a judge, prosecutor, or in a law
enforcement capacity shall be eligible to serve on the board.
The executive director shall serve at the will of the board.
(Government Code � 68664.)
This bill provides instead that the Supreme Court shall appoint
the executive director of HCRC and that the person shall serve
at the will of the Supreme Court.
This bill provides that the executive director shall ensure that
all matters in which HCRC provides representation are completed
as expeditiously as possible, consistent with providing
effective representation.
This bill provides that all attorneys employed by HCRC shall be
compensated at the same level as position with the same or
similar experience requirements in the Office of the State
Public Defender.
Existing law provides that the Judicial Council and the Supreme
Court shall adopt, by rule of court, biding and mandatory
competency standards for the appointment counsel in death
penalty
direct appeals and habeas corpus proceedings. (Government Code
� 68665.)
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 8.600.)
Existing Rules of Court provide that an attorney appointed as
lead or associate counsel in a death penalty appeal must have at
least the following qualifications and experience:
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(1) Active practice of law in California for at least four
years.
(2) Either:
(A) Service as counsel of record for a defendant in
seven completed felony appeals, including one murder
case; or
(B) Service as counsel of record for a defendant in
five completed felony appeals and as supervised counsel
for a defendant in two death penalty appeals in which
the opening brief has been filed. Service as supervised
counsel in a death penalty appeal will apply toward this
qualification only if lead or associate counsel in that
appeal attests that the supervised attorney performed
substantial work on the case and recommends the attorney
for appointment.
(3) Familiarity with Supreme Court practices and procedures,
including those related to death penalty appeals.
(4) Within three years before appointment, completion of at
least nine hours of Supreme Court-approved appellate criminal
defense training, continuing education, or course of study, at
least six hours of which involve death penalty appeals. If the
Supreme Court has previously appointed counsel to represent a
defendant in a death penalty appeal or a related habeas corpus
proceeding, and counsel has provided active representation
within three years before the request for a new appointment, the
court, after reviewing counsel's previous work, may find that
such representation constitutes compliance with this
requirement.
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(5) Proficiency in issue identification, research, analysis,
writing, and advocacy, taking into consideration all of the
following:
(A) Two writing samples-ordinarily appellate
briefs-written by the attorney and presenting an analysis
of complex legal issues;
(B) If the attorney has previously been appointed in a
death penalty appeal or death penalty-related habeas
corpus proceeding, the evaluation of the assisting
counsel or entity in that proceeding;
(C) Recommendations from two attorneys familiar with
the attorney's qualifications and performance; and
(D) If the attorney is on a panel of attorneys eligible
for appointments to represent indigents in the Court of
Appeal, the evaluation of the administrator responsible
for those appointments. (California Rule of Court
8.605(d).)
Existing Rules of Court provide that an attorney appointed as
lead or associate counsel to represent a person in death
penalty-related habeas corpus proceedings must have at least the
following qualifications and experience:
(1) Active practice of law in California for at least four
years.
(2) Either:
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(A) Service as counsel of record for a defendant in five
completed felony appeals or writ proceedings, including
one murder case, and service as counsel of record for a
defendant in three jury trials or three habeas corpus
proceedings involving serious felonies; or
(B) Service as counsel of record for a defendant in five
completed felony appeals or writ proceedings and service
as supervised counsel in two death penalty-related habeas
corpus proceedings in which the petition has been filed.
Service as supervised counsel in a death penalty-related
habeas corpus proceeding will apply toward this
qualification only if lead or associate counsel in that
proceeding attests that the attorney performed substantial
work on the case and recommends the attorney for
appointment.
(3) Familiarity with the practices and procedures of the
California Supreme Court and the federal courts in death
penalty-related habeas corpus proceedings.
(4) Within three years before appointment, completion of at
least nine hours of Supreme Court-approved appellate criminal
defense or habeas corpus defense training, continuing education,
or course of study, at least six hours of which address death
penalty habeas corpus proceedings. If the Supreme Court has
previously appointed counsel to represent a defendant in a death
penalty appeal or a related habeas corpus proceeding, and
counsel has provided active representation within three years
before the request for a new appointment, the court, after
reviewing counsel's previous work, may find that such
representation constitutes compliance with this requirement.
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(5) Proficiency in issue identification, research, analysis,
writing, investigation, and advocacy, taking into consideration
all the following:
(A) Three writing samples - ordinarily two appellate
briefs and one habeas corpus petition-written by the
attorney and presenting an analysis of complex legal
issues;
(B) If the attorney has previously been appointed in a
death penalty appeal or death penalty-related habeas
corpus proceeding, the evaluation of the assisting
counsel or entity in that proceeding;
(C) Recommendations from two attorneys familiar with
the attorney's qualifications and performance; and
(D) If the attorney is on a panel of attorneys eligible
for appointments to represent indigent appellants in the
Court of Appeal, the evaluation of the administrator
responsible for those appointments. (California Rule of
Court 8.605(e).)
Existing Rules of Court provide for alternative qualifications
for appellate or habeas counsel in a capital case. It provides
that the Supreme Court may appoint an attorney who does not meet
all of requirements, if the attorney has the qualifications for
being an appellate or habeas counsel, and:
(1) The court finds that the attorney has extensive experience
in another jurisdiction or a different type of practice (such as
civil trials or appeals, academic work, or work for a court or
prosecutor) for at least four years, providing the attorney with
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experience in complex cases substantially equivalent to that of
an attorney qualified under (d) or (e).
(2) Ongoing consultation is available to the attorney from an
assisting counsel or entity designated by the court.
(3) Within two years before appointment, the attorney has
completed at least 18 hours of Supreme Court-approved appellate
criminal defense or habeas corpus defense training, continuing
education, or course of study, at least nine hours of which
involve death penalty appellate or habeas corpus proceedings.
The Supreme Court will determine in each case whether the
training, education, or course of study completed by a
particular attorney satisfies the requirements of this
subdivision in light of the attorney's individual background and
experience. If the Supreme Court has previously appointed
counsel to represent a defendant in a death penalty appeal or a
related habeas corpus proceeding, and counsel has provided
active representation within three years before the request for
a new appointment, the court, after reviewing counsel's previous
work, may find that such representation constitutes compliance
with this requirement. (California Rule of Court 8.605(f).)
Existing Federal Law provides that if the appointment is made
after judgment, at least one attorney so appointed must have
been admitted to practice in the court of appeals for not less
than five years, and must have had not less than three years
experience in the handling of appeals in that court in felony
cases. (18 USCS � 3599.)
This bill provides that an attorney shall be deemed competent
for appointment as counsel in a death penalty direct appeal or
habeas corpus proceeding if the attorney has been admitted to
practice in a court of appeals for not less than five years, and
has not less than three years experience in the handling of
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appeals in that court in felony cases.
This bill provides that the Supreme Court may adopt by rule of
court binding and mandatory competency standards for the
appointment of counsel in death penalty direct appeals and
habeas corpus proceedings in lieu of those provided by this
bill. In establish the standards the Judicial Council and the
Supreme Court shall consider the qualifications needed to
achieve competent representation, the need to avoid unduly
restricting the available pool of attorneys in order to provide
timely appointment.
This bill suspends Rule of Court 8.605 upon the effective date
of this bill, and provides the standards of this bill shall
apply until the Judicial Council or Supreme Court has adopted
new standards.
Existing law sets forth the time frame for filing an appeal from
a judgment of death after certification of the entire record.
(Penal Code � 190.6.)
Existing law provides that "entire record" includes but is not
limited to:
The normal and additional record prescribed in the rules
adopted by the Judicial Council pertaining to an appeal
taken by the defendant from a judgment of conviction.
A copy of any other paper record on file or lodged with
the superior court and a transcript of any other oral
proceedings reported in the superior court pertaining to
the trial of the cause. (Penal Code � 190.7(a).)
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Existing law provides that notwithstanding this section, the
Judicial Council may adopt rules, not inconsistent with the
purpose of Section 190.6 specifically pertaining to the content,
preparation and certification of the record on appeal when a
judgment of death has been pronounced. (Penal Code � 190.7(b).)
This bill provides that jury questionnaires filled out by jurors
who were excused without having been seated in the jury box
during the selection process who were not excused for cause are
not part of the "entire record."
Existing law provides that in any case in which a death sentence
has been imposed, the record on appeal shall be expeditiously
certified in two stages, the first for completeness and the
second for accuracy. (Penal Code � 190.8(a).)
This bill deletes the two stages of certification.
Existing law provides that trial court may use all reasonable
means to ensure compliance with all applicable statutes and
rules of court pertaining to record certification in capital
appeals, including, but not limited to, the imposition of
sanctions. (Penal Code � 190.8(a).)
This bill provides that the trial court shall use all reasonable
means, including sanctions to ensure compliance with applicable
statutes and rules of court pertaining to record certification
in capital appeals.
Existing law provides that within 30 days of the imposition of
the death sentence, the clerk of the superior court shall
provide to trial counsel copies of the clerk's transcript and
shall deliver the transcript s provided by the court reporter
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and that trial counsel shall promptly notify the court if he or
she has not received the transcript within 30 days. (Penal Code
� 190.8(b).)
This bill provides instead that within 30 days of the imposition
of the death sentence, the clerk of the superior court shall
provide to counsel copies of the clerk's transcript, the
reporter's transcript, and a comprehensive journal of
proceedings prepared on a form approved by the Judicial Council
listing each date on which proceeding culminating in the
judgment occurred and noting the duration and nature of each
session, the names of the court reporters present at each
session, and the page length and volume designation of all
transcriptions prepared in connection with each session.
Existing law provides that during the course of the trial in
which the death penalty is being sought, trial counsel shall
alert the court's attention to any errors in the transcripts
incidentally discovered by counsel while reviewing them in the
ordinary course of trial preparation. The court shall
periodically request that trial counsel provide a list of errors
in the trial transcript during the course of the trial and may
hold hearings in connection therewith. (Penal Code
� 190.8 (c)(1).)
This bill provides that instead trial counsel shall undertake to
identify and promptly alert the court's attention to any errors
in the transcripts of the proceedings and that the court shall
periodically request the trial counsel provide a list of any
proposed corrections to the reporter's transcript during the
course of the trial.
Existing law provides that the trial court shall certify the
record for completeness and for incorporation of all corrections
no later than 90 days after entry of imposition of death unless
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good cause is shown. However, this period may be extended for
proceedings in which the trial transcript exceeds 10,000 pages
in accordance with the timetable set forth in, or for good cause
pursuant to,s procedures set forth in the rules of court.
(Penal Code � 190.8 (d).)
This bill requires that the trial court certify the record in 90
days; it does not require it be certified for completion nor
does it allow for any extension of the time period.
Existing law provides that following the imposition of the death
sentence and prior to the record certification deadline, the
trial court shall hold one or more hearing for trial counsel to
address the completeness of the record and any outstanding
errors that have come to their attention and to certify that
they have reviewed all the docket sheets to ensure that the
record contains transcripts for any proceedings, hearings or
discussions that are required to be reported and have occurred
in the course of the case in any court, as well as all the
documents required by this code and the rules adopted by
Judicial Council. (Penal Code � 190.8(e).)
This bill provides instead that the trial court shall hold one
or more hearing for trial counsel to address the completeness of
the record and any proposed corrections, and to certify that
they have reviewed the comprehensive journal of proceedings
prepared by the clerk and all docket sheets to ensure that the
record contains complete and correct transcripts for all
proceedings, etc.
Existing law requires the clerk of the trial court to deliver a
copy of the record on appeal to appellate counsel when the clerk
receives notice of counsel's appointment or retention, or when
the record is certified for completeness, whichever is later.
(Penal Code � 190.8 (f).)
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This bill provides instead that the clerk shall deliver the
transcript to the Attorney General and the appellants counsel
and deletes the requirement that it be certified for
completeness.
Existing law requires that the trial court shall certify the
record for accuracy not later than 120 days after the record has
been delivered to the appellate counsel. However, this time may
be extended pursuant to rules of court. The trial court may
hold one or more status conferences for purpose of timely
certification of the record for accuracy as set forth in the
rules of court. (Penal Code � 190.8 (g).)
This bill deletes the above and provides that after the record
is certified, additional corrections to the record may only be
made if either party files a motion in the Supreme Court for
referral to trial court for correction of a material error. The
motion must specify the particular correction, identify the
basis for the belief that the proposed correction will
accurately reflect the events that transpired at trial and
explain how the proposed correction will materially affect the
disposition of the pending appeal.
This bill provides that the motion to make an additional
correction shall be made no later than five days after filing
the moving party's principal brief, unless the moving party can
show that failure to effect the corrections will result in a
miscarriage of justice.
This bill provides that the Supreme Court shall rule on any
motion to make a correction 21 days after it is filed, and the
motion may be granted only upon a showing of good cause. If it
is granted, the Supreme Court shall specify the proposed
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corrections that shall be considered by the superior court which
must issue an order granting or denying the corrections within
30 days.
This bill provides that the changes to the certification of
transcripts by this bill shall only apply to trials commencing
60 days or more after the effective date of this bill.
Existing law provides that if the judgment is for death, the
defendant shall be taken to the warden of San Quentin. (Penal
Code � 1202a.)
This bill deletes the requirement that death row prisoners be
held at San Quentin and instead provides that they can be housed
in any state prison designated by the Secretary of CDCR.
Existing law provides that if for any reason other than the
pendency of an appeal a judgment of death has not been executed,
and it remains in force, the court in which the conviction was
had shall, on application of the district attorney, or may upon
its own motion, make and cause to be entered an order appointing
a day upon which the judgment shall be executed, which must not
be less than 30 days nor more than 60 days from the time of
making such an order. Immediately thereafter a certified copy
of the order shall be transmitted to the state prison having
custody of the defendant. (Penal Code � 1227(a).)
This bill provides instead that the order shall specify a period
of 30 days during which the judgment shall be executed. The 30
day period shall begin no more than 30 days after the order is
entered and shall end no more than 60 days after the order is
entered.
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Existing law provides that where an appeal lies on behalf of the
defendant or the people, it may be taken by the defendant or his
or her counsel for the people in the manner provided in rules
adopted by the Judicial Council. (Penal Code � 1239 (a).)
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 his or her counsel.
(Penal Code �1239 (b).)
This bill provides that the appellate court may require the
appellant to be represented by counsel, but counsel shall
respect the right of the client to determine the goals of
representation.
Existing law provides when a person is not represented by a
public defender, the court shall appoint the State Public
Defender to represent a person except:
When the State Public Defender has refused to represent
the person because of a conflict.
When a person requests that the person who represented
him or her at trial.
When the State Public Defender has contracted with a
county public defender, private attorney or nonprofit to
furnish defense services. (Penal Code � 1240 (a).)
This bill provides that the State Public Defender shall not be
appointed in a noncapital case at any time when there is a
backlog of capital cases awaiting appointment of more than three
months, and the State Public Defender is unable, by reason of
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workload to take all of the capital cases that the State Public
Defender would otherwise be appointed.
This bill provides that promptly upon docketing an appeal in a
capital case, the clerk of the Supreme Court shall notify the
State Public Defender of the case and the State Public Defender
shall notify the court within 30 days if the office is unable to
represent the appellant for reason of a conflict, workload or
other good cause. If no notice is given, the State Public
Defender shall be appointed and shall be required to file briefs
within the time limits.
This bill provides that an attorney who is qualified for
appointment in a noncapital appeal shall accept appointments to
capital appeals as a condition of remaining on the list for
appointment by the appellate court for noncapital cases.
This bill provides that an attorney who is not yet qualified for
appointment in capital appeals shall make good faith efforts to
become qualified as a condition of remaining on the list of
attorneys for appointment by the appellate court in noncapital
cases.
This bill provides that the Supreme Court may be suspend these
requirements if the court determines that there is no more than
a six-month delay in the appointment of counsel for capital
appeals, on average, but shall reinstate these requirements if
an average delay of six months or more develops.
Existing law provides that in order to expedite certification of
the entire record on appeal in all capital cases, the
defendant's trial counsel, whether retained by the defendant or
court appointed, and the prosecutor, shall continue to represent
the respective parties. Each counsel's obligations extend to
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taking all steps necessary to facilitate the preparation and
timely certification of the record of all trial proceedings.
These duties shall not foreclose the defendant's appellate
counsel from requesting additions or corrections on appeal in
either the trial court or the Supreme Court in a manner provided
by the rules of court. (Penal Code � 1240.1(c).)
This bill deletes the above provision.
Existing law provides that when a defendant has been charged
with a public offense triable in any court, he or she, in all
cases, and the people in cases other than those for which the
punishment may be death, may, if the defendant has been fully
informed of his or her right to counsel as provided by law, have
witnesses examined conditionally in his or her on their behalf
as provided. In a serious felony or case of domestic violence,
the people or the defendant may have a witness examined
conditionally if the life of the witness is in jeopardy. If a
defendant has been charge with domestic violence, and there is
evidence that victim or material witness may be dissuaded by the
defendant, the people or the defendant may have a witness
examined conditionally. (Penal Code � 1335.)
This bill provides that when a defendant has been charged with a
public offense triable in any court, he or she and the people
may, if the defendant has been fully informed his or her right
to counsel, have witnesses examined conditionally and deletes
the provision relating to serious cases and cases of domestic
violence.
This bill sets forth the procedure for any petition for a writ
of habeas corpus filed by a person in custody pursuant to a
judgment of death. It provides that a writ of habeas corpus
pursuant to this bill is the exclusive procedure for collateral
attack on a judgment of death.
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This bill provides that a petition filed in any court other than
the court which imposed the sentence of death shall be
transferred to that court unless good cause is shown for the
petition to be heard by another court. The petition shall be
heard by the original trial judge if that judge is available or
other good cause is shown.
This bill provides that after the entry of judgment in the trial
court, that court shall offer counsel to the defendant.
Counsel's appointment terminates upon the final disposition of
the petition, including appellate review.
This bill provides that the court may appoint counsel to
represent the petitioner on a successive petition only if there
is a reasonable basis to believe the petitioner may be able to
meet the criteria for a successive petition.
This bill provides that either party may appeal the decision on
the petition to the court with jurisdiction over the appeal from
the underlying criminal judgment. A successive petition shall
not be used as a means of reviewing a denial of habeas relief.
This bill provides that the initial petition shall be filed
within one year of the appointment of counsel.
This bill provides that an initial petition which is untimely,
or a successive petition whenever filed, shall be dismissed
unless the court finds by a preponderance of all available
evidence, whether or not admissible at trial that the defendant
is actually innocent of the crime which he or she was convicted.
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The bill provides a stay of execution shall not be granted for
the purpose of considering a successive or untimely petition
unless the court finds that the petitioner has substantial claim
of actual innocence or ineligibility for the sentence of death.
This bill provides that ineligibility include a claim that none
of the special circumstances exist, a claim that the defendant
was under the age of 18, or a claim that the defendant is
intellectually disabled, but not that the defendant was
voluntarily intoxicated, a claim based on mental disease or a
claim relating to the sentencing decision.
This bill provides that a petitioner claiming innocence or
ineligibility for the death sentence shall disclose all material
information relating to guilt that is in the possession of the
petition or present counsel for the petitioner. A willful
failure to disclose by counsel shall cause the petition to be
dismissed.
This bill provides that proceedings held shall be conducted as
expeditiously as possible, consistent with a fair adjudication.
The superior court shall render a decision within one year of
the filing, and the Supreme Court shall decide the appeal from
the decision of the superior court with in one year. All cases
shall be decided within two years unless the court finds that a
delay is necessary to resolve a substantial claim of actual
innocence.
This bill shall apply to all cases where a judgment of death is
enacted after the effective date of this bill and to earlier
cases where no habeas corpus has been filed.
Existing law provides male prisoners upon whom a judgment of
death has been ordered shall be housed at San Quentin except
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under specified circumstances. A female prisoner under the
judgment of death shall be kept at Central California Women's
Facility. (Penal Code �� 3600, 3601, 3602.)
This bill deletes those provisions and provides that every
person who has a death sentence can be housed at any state
prison until execution of the judgment. The prisoner shall be
brought to the prison designated for execution after an
execution date has been set.
This bill provides that the Secretary of the Department of
Corrections and Rehabilitation (CDCR) shall determine the state
prison facility for execution.
Existing law provides that the punishment of death shall be
inflicted by the administration of a lethal gas or by an
intravenous injection of a substance or substances in a lethal
quantity sufficient to cause death, by standards established
under the direction of the Department of Corrections and
provides that persons shall have the opportunity to elect to
have the punishment imposed by lethal gas or lethal injection,
and if no choice is made, then death shall be imposed by lethal
injection. If either manner is found invalid, the other shall
be used. (Penal Code � 3604.)
This bill provides that lethal gas may include, but is not
limited to, a nontoxic gas administered in a lethal manner, such
as by displacing oxygen.
This bill provides that CDCR shall at all times maintain the
capability to execute a sentence of death by either lethal
injection or gas.
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This bill provides that the Administrative Procedures Act shall
not apply to standards, procedures, or regulations relating to
the administration of the death penalty.
This bill provides that the court which rendered the judgment of
death has the exclusive jurisdiction to hear any claim by the
condemned inmate that the method of execution is
unconstitutional or invalid, and such claim must be brought
within one year of the adoption of the method or one year of the
effective date of this bill, whichever is later.
This bill provides that if the method of execution is found
invalid, CDCR shall use a valid method so as not to delay the
execution.
This bill provides that if the federal court invalidates the
method, the court shall promptly adopt a method that conforms to
federal requirements as found by the court.
This bill provides that if CDCR fails to perform any duty needed
to execute judgment, the trial court shall order it to perform
the duty on its own motion or the motion of the district
attorney, Attorney General or any victim of the crime.
This bill provides that the identity and personal identifying
information of the members of the execution team, medical
professionals who assist in or consult on executions, persons
who perform ancillary functions in an execution and persons who
supply drugs, medical supplies or medical equipment for an
execution is privileged official information and not subject to
the Public Records Act.
This bill sets up a procedure for a person who seeks disclosure
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of the above information which is sought in any civil, criminal
or administrative proceeding absent a hearing and court order as
provided in this bill.
This bill provides that any pharmacy operated by CDCR shall be
required to obtain and provide drugs or other controlled
substances and medical supplies necessary for execution
procedure and for any practice sessions. The Secretary of CDCR
shall maintain the ultimate authority over the pharmacy for
purposes of obtaining and providing supplies and controlled
substance to be used in executions.
This bill provides that it is the best interest of the state and
the condemned to secure the participation of medical
professionals to assure that the execution process is effective
and humane, the infliction of the punishment of death by
administration of the required lethal substances in the manner
required by this chapter shall not be construed to be the
practice of medicine.
This bill provides that a physician may not be compelled by the
state to perform an execution; the state may employ a physician
for the purpose of ensuring that the execution protocol is
effective and humane; the state may employ a physician to be
present during an execution for the purpose of ensuring that the
execution is performed with minimal distress and discomfort to
the inmate; a physician may intervene in the execution to
correct any deficiencies he or she observes that may cause
unnecessary distress or discomfort to the condemned inmate; and
the state may employ a physician for the purposes of pronouncing
death after an execution.
This bill provides notwithstanding any provision of law to the
contrary, no licensing board, department, commission or
accreditation agency which oversees or regulates the practice of
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healthcare, or certifies or licenses healthcare professionals
may censure, reprimand, suspend, revoke or take any other
disciplinary action against any licensed health care
professional, including, but not limited to, physicians, nurses,
pharmacists, and pharmaceutical compounders for participating in
or providing assistance with the execution of any convicted
person.
This bill provides that the purchase of drugs, medical supplies
or medical equipment necessary to carry out an execution shall
not be subject to Business and Professions Code sections
regulating pharmacists and provides that any pharmacists or
supplier, compounder or manufacturer of pharmaceuticals is
authorized to dispense drugs and supplies to the Secretary
without prescription.
Existing law requires the warden of the state prison where the
execution is to take place to be present at the execution and
shall invite the Attorney General, the members of the immediate
family of the victim, at least 12 reputable citizens, up to two
ministers, and five family members of the defendant.
This bill provides that if a condemned inmate has been sentenced
to death in one or more criminal proceedings in this state, or
has been sentenced to death in this state and by one or more
courts of competent jurisdiction in another state, or pursuant
to federal authority, or any combination thereof, and this state
has priority to execute the defendant, the warden shall invite
the prosecuting attorney or his or her designee, the judge, and
the chief law enforcement official from each jurisdiction where
any death sentence has issued to attend the execution.
Existing law provides that whenever the court makes and causes
to be entered an order appointing a day upon which a judgment of
death shall be executed upon a defendant, the warden of the
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state prison to whom such defendant has been delivered for
execution, of if the defendant is a female, the warden of the
Central California Women's facility, shall notify the Secretary
of CDCR who shall thereupon select and appoint three alienists,
all of whom must be from the medical staffs of the department to
examine the defendant under the judgment of death and
investigate his or her sanity. (Penal Code � 3700.5.)
This bill provides instead that three psychiatrists or
psychologists shall be appointed and makes other changes to
conform Penal Code section 3700.5 to this bill.
This bill makes a number of legislative findings and
declarations.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
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reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
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dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The review of California capital cases takes far longer
than is needed for a fair adjudication of claims. This
delay is contrary to the right of victims and their
families to a prompt conclusion of the case, and
impairs the deterrent effect of capital punishment,
costing innocent lives. Justice is being denied in the
worst criminal cases. Reforms to the review process
are needed to bring these cases to prompt, fair
conclusions.
Additionally, the administration of the death penalty
is far too costly. Unnecessary expenses derive from
the needlessly prolonged review of the sentence,
methods of confinement, litigation of execution
protocols, briefing of frivolous claims by defense
counsel with the requisite response by the Attorney
General and decision by the courts, and repetitive
review of judgments on issues having no bearing on
actual guilt of the offense.
SB 779, in conjunction with SCA 13, reforms the review
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process by setting fair and certain guidelines relative
to timing and appointment of counsel. Also, the
measure eliminates duplicative and unnecessary
components of the record certification process. SB 779
amends the manner in which condemned inmates are housed
and streamlines the methods of execution. Finally, the
measure addresses concerns about medical professionals
and procedures in the context of the administration of
the death penalty.
2. Changes to the Habeas Process in Death Penalty Cases
This bill would require a person sentenced to death to file
habeas corpus petitions in the court that imposed the sentence
within one year of appointment of counsel.
a. One Writ of Habeas Corpus in one year
Habeas Corpus petitions can be complex and require
investigation. Currently, they must be filed within 2 years
of the appointment of counsel. Opponents argue that
shortening the time could result in inadequately researched
motions and a miscarriage of justice since it is unrealistic
for petitions to be completed in this time frame. It also
requires that an untimely petition be dismissed unless the
court finds by a preponderance evidence of actual innocence,
thus an attorney who makes a mistake irreparably harms his or
her client. Also, a person may only file a successive
petition if the court finds by a preponderance evidence of
actual innocence. Habeas petitions can be granted for issues
short of innocence. They may just speak to the
appropriateness of the sentence or raise issues short of
actual innocence.
b. Same trial judge
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This bill provides that instead of the Supreme Court, a habeas
corpus petitions may only be filed in the same court which
imposed the sentence, and when possible by the same judge.
Postconviction relief may be based on a bias or mistake by the
trial judge, prosecutorial misconduct and incompetence of
counsel. It is unlikely a person will get any real relief
before the court that committed the bias or mistake, or who
tolerated prosecutorial misconduct, or did not step in when a
defense attorney was incompetent. The Eighth Amendment
mandates a meaningful review for capital cases, and it seems
unlikely that such review would be considered meaningful.
c. Impact on the courts
Our trial courts are heavily impacted and civil cases are
lucky if they can get a courtroom. Habeas corpus petitions in
death penalty cases are complex and should take time when
appropriately reviewed. Do the trial courts have the ability
to deal with habeas corpus petitions? It is clear court staff
would have to be increased to handle these cases, especially
in the counties that most frequently impose the death penalty.
3. Change to the Appointment of Counsel
This bill statutorily changes the standards for appellate
counsel in a death penalty case and provides for appointment of
counsel by the trial court, not the Supreme Court in all
postconviction proceedings.
a. Standards
Under existing law, the standards for appellate and habeas
counsel in a capital case is set by the Judicial Council and
the Supreme Court. This bill significantly reduces those
standards. Existing Rules of Court require specified criminal
felony appellate experience, including death appeal
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experience, as well as familiarity with the Supreme Court and
its practices and procedures. This bill reduces the standards
to allow only 3 years of practice in felony appeals or
post-conviction proceedings, but does not specifically require
any experience in the complex issues of a capital case.
The American Civil Liberties Union has concerns about the
changes to the appointment process in this bill stating:
SB 779 also seeks to gut the current standards for
counsel, allowing anyone with just three years of
experience in felony appeals to handle a death penalty
case. California's current standards already fall
below those recommended by the ABA. ABA Guidelines for
the Appointment and Performance of Defense Counsel in
Death Penalty Cases, pp. 937-938, available at
http://www.abanet.org/deathpenalty/DPGuidelines42003.pdf
.) One of the current causes of significant delay in
California death penalty cases is the need to remove
incompetent counsel from cases, when they fail to meet
their obligations. Reducing standards even further
will only increase this problem.
The California Appellate Defense Counsel agrees stating:
Lowering the standards for appointment of capital
appellate and habeas counsel would not reduce delays
and costs; they would only exacerbate the court
problems. As the Administrative Office of the Courts
has found, the more experienced counsel, the less the
overall cost of the appeal. Death penalty cases are
among the most complex of criminal cases and require
the most experienced counsel with expertise in large
record management, DNA and other forensic protocols,
mental health issues and mitigation, among other
issues.
b. Appellate attorneys required to take capital cases
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The California Appellate Projects help supervise attorneys who
handle non-capital criminal appeals. This bill would require
those attorneys to apply to handle a capital appeal or no
longer be eligible for a noncapital appeal. This does not
seem workable. The attorneys who do these cases, who do not
already do capital appeals, often do appellate briefs as just
a portion of their practice or as something they do on the
side or in retirement. Some would not be considered qualified
under existing standards even if they met the standards in
this bill. Others would not want to make the time and
emotional commitment that a capital case entails. California
Appellate Defense Counsel are concerned about this
requirements stating:
Rather than increase the number of qualified attorneys
accepting capital post-conviction appointment, the bill
would result in some of the most qualified attorneys
leaving the non-capital appointment panels rather than
being forced to accept capital appointments.
CADC members are well aware of the shortage of
qualified capital post-conviction counsel. Many have
chosen not to take capital appointment either because
the program has been severely underfunded for year,
especially for habeas investigations, or for other
reasons personal to counsel.
The appointment panels for non-capital cases already
struggle to maintain sufficient experienced counsel
able to competently handle the most serious and complex
non-capital appeals.
The Habeas Corpus Resource Center also raises concerns
stating:
The conscription provision is predicated on a misapprehension
of the nature of capital litigation and the assumed
fungibility of all criminal law practitioners. As with
specialization in any practice area, obtaining sufficient
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expertise in the range of subject areas unique to capital
cases entails a substantial investment of time and directed
effort, as recognized in the existing qualifications for
appointment in capital cases as described in California Rules
of Court, Rule 8.605, and in the American Bar Association
Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases, Revised, 2003 ("ABA
Guidelines").
c. Appointment by Superior Court
Under existing law, the Supreme Court appoints habeas and
appellate counsel in death penalty cases. This bill would
have the superior court appointing all postconviction counsel
using the standards discussed above. This would require
additional staff at the court level and it is not clear why
the current system with the Supreme Court overseeing the
appointment of counsel and Supreme Court monitoring the work
of those appointed is thought to be deficient. Spreading the
work would save neither time nor money in the long run.
The ACLU opposes this provision stating:
Currently, the California Supreme Court appoints all
post-conviction counsel in death penalty cases, according to
the standards established by the Judicial Council. (Cal.
Rules of Court 76.6.) SB 779 would remove the authority for
appointment of post-conviction counsel from the California
Supreme Court and place it with the trial court. Shifting
this authority to the trial courts will only result in
increased costs, as every trial court will need to have
additional training, staff and resources to manage this extra
responsibility. The California Supreme Court is well
equipped to manage the appointment, supervision and payment
of attorneys in death penalty cases. Shifting this
responsibility will only incur greater costs to the state
with no benefit.
4. Changes to Certification of the Record
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This bill makes a number of changes to how the record in a death
penalty case is certified to be ready for appeal, including
strict time frames and limitations if errors are found after an
initial certification. There have been changes to how the
record is certified a number of times over the years, and there
has been no real time savings. These are long and complicated
transcripts that can take the parties a long time to get through
and errors can be discovered later, especially if there is an
attempt to further rush the process.
5. Moving Death Row Prisoners to Other Prisons
Under existing law, with some exceptions, male prisoners on
death row are housed in San Quentin; female prisoners on death
row are housed in the Central California Women's Facility. The
place of execution is San Quentin. This bill would allow the
Secretary of CDCR to house condemned inmates in any facility.
This is not the first time dispersing condemned inmates has been
contemplated.
The ACLU notes:
Efforts to move death row housing to other prisons in
California have failed for more than a decade, for good
reason. The State Auditor considered this possibility
in its 2008 audit of death row housing (California
State Auditor, July 2008, California Department of
Corrections and Rehabilitation: Although Building a
Condemned Inmate Complex at San Quentin May Cost More
Than Expected, the Costs of Other Alternatives for
Housing Condemned Inmates Are Likely to Be Even Higher,
2007-120.2.) The auditor concluded that moving death
row inmates to other locations would only increase the
costs of housing death row inmates. (Id. at p. 41.)
The State Auditor noted that security experts recommend
that corrections departments prevent all contact
between condemned and non-condemned inmates, making it
impossible to simply place death row inmates in the
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general prison population. As a result, dispersing
death row inmates to multiple prisons would simply
result in multiplying the costs of creating special
death row housing across the state and the costs of
staffing such facilities. (Id. at p. 42.)
The State Auditor also observed:
The custody experts of the Receiver do not recommend
dispersing condemned inmates to multiple locations.
They identified community resistance and problems with
legal access and visiting, media relations, and
pre-execution procedures associated with this
alternative, and stated that housing condemned inmates
at multiple sites would amplify these issues. (Id. at
p. 41.) As a result, the State Auditor concluded that
it was not economically or practically feasible to
disperse death row inmates to multiple prisons and
recommended building a single death row housing unit.
SB 779 also seeks to give the CDCR authority to move executions
themselves to another prison, other than San Quentin. Given
that the state spent over $800,000 building a new execution
chamber at San Quentin, that has never even been used, it seems
rather wasteful to move executions to another location, simply
adding millions of dollars in additional expenses.
6. Changes to the Method of Execution
This bill would allow for execution by a nontoxic gas
administered in a lethal manner, such as displacing oxygen,
"thus causing death by suffocation." According to the ACLU,
"[t]his would make California the only jurisdiction in the world
to carry out execution by suffocation."
7. Exempting from the Administrative Procedures Act
Many of the opponents are concerned about this bill exempting
the procedures associated from the death penalty for the
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administrative procedures act.
Specifically, the ACLU states:
The purpose of the APA is to protect the interests of
all Californians from excessive, burdensome, and
incoherent regulations. When a government agency is
given unfettered authority to implement rules and
regulations, there is a substantial likelihood that the
fundamental rights of individuals will be infringed.
The APA provides a critical safeguard against such
government overreaching and abuse. By providing an
opportunity for all interested individuals to comment
on proposed rules and regulations and by requiring the
Office of Administrative Law to review all regulations
before they take effect, the APA ensures that
government agencies only adopt regulations that are
necessary and clear, and that regulations do not place
unnecessary burdens on individuals and businesses.
The previous execution protocol resulted in serious
mistakes during executions. Problems included the
theft of controlled substances, unequal and unfair
treatment of witnesses, and errors during the execution
itself. The repeated and serious nature of these
problems led the Federal District Court to conclude
that California's execution procedures where likely
unconstitutional. These are exactly the kinds of
problems that occur when regulations are not subject to
review through the APA process.
In response to the Federal Court's ruling, the Governor
agreed that the process would be overhauled, leading
eventually to a new proposed set of execution
regulations. The public comment process regarding the
last proposed execution regulations further
demonstrates why the APA process is so important in
this context. The California public is extremely
concerned about the execution procedures: more than
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30,000 comments were submitted about the regulations
during the two comment periods. These comments
objected to many different aspects of the regulations
that infringe fundamental rights including the First
Amendment rights of the press, the religious rights of
the person being executed, and the equal protection
rights of women facing execution.
The Superior Court ultimately ruled that the CDCR
violated the APA in substance and procedurally, holding
that the new execution protocol was invalid under state
law. (Sims v. California Dept. of Corrections and
Rehabilitation, CV 1004019, opinion Dec. 16, 2011.)
Notably, the judge found that the CDCR failed to
actually consider many of the key public objections,
such as the objection to the
problematic three drug execution protocol that has now
been rejected by other states. The judge concluded
that the CDCR violated the substantive rights of other
individuals, for example, by requiring that media
witnesses to the execution be "reputable citizens"
without defining that term.
The APA process provided the CDCR with valuable
information about the impact of the proposed
regulations on a wide range of individuals in
California-information the CDCR did not have when it
first drafted the regulations. The court ruled that
the CDCR must actually consider this information, to
improve the regulations, to ensure that all fundamental
rights are protected, and that the regulations place
the least burden possible on individuals and
businesses. Changing and improving the regulations
based on the information provided through the APA
process would allow the CDCR to avoid potential
litigation on these issues.
The APA process serves a critical function because of
the demonstrated interest of the public in these
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regulations and the record of serious mistakes in
California's execution process.
8. Changes to HCRC
This bill makes a number of changes to the Habeas Corpus
Resource Center. It eliminates the Board of Directors and
instead has the Supreme Court appoint the director. HCRC is
under the Judiciary and when SB 513 created HCRC in 1997, after
much deliberation and a conference committee, the board was
created to ensure fair and impartial representation by HCRC. It
was explicitly intended to avoid the conflict this board creates
by giving the power to hire and fire in the Supreme Court.
It is also unclear why there are requirements that the executive
director of HCRC and its attorneys are paid in the same manner
as the State Public Defender. The budget for HCRC is under the
Administrative Office of the Courts, and its funding is included
in the budget for the court. The salaries of the attorneys at
HCRC are similar to the classifications for other attorneys that
work for the courts. It is not clear why this change is
proposed.
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9. Changes to the Procedures Dealing with the Administration
of the Death Penalty and the Drugs Involved
This bill makes a number of changes that seem to impact the
scope of practice of a physician who participates in an
execution. It also exempts physicians and pharmacists from
specified regulations that generally govern their practices.
The bill also appears to require all CDCR pharmacies to stock
drugs necessary for execution. This seems unnecessary. It is
unlikely that CDCR would perform executions at more than one
prison even if given the authority.
It also allows any pharmacist to mix the drugs for the
execution, while at the same time exempting the pharmacists for
regulations that govern their practice.
The ACLU points out:
SB 779 also seeks to exempt "pharmacists, compounding
pharmacies, suppliers and manufacturers" from all state
laws controlling the manufacture and distribution of
controlled substances when supplying execution drugs.
None of these terms are defined in SB 779 and the
impact of the bill as drafted would be that the state
code sections that define "pharmacist" and "compounding
pharmacy" also do not apply. The upshot would appear
to be that absolutely anyone-with no qualifications at
all-could make and/or supply drugs to the CDCR to use
in executions. Under SB 779, the CDCR could literally
ask a high school chemistry teacher to mix up any
requested drugs, with absolutely no oversight or
control under state law.
10. Exemption of Some Information from the Public Records
Act
This bill removes the ability for public oversight of the
execution process by exempting the procedures from the Public
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Records Act. The public will have no ability to determine
whether competent physicians and pharmacists, who apparently are
exempted from licensing requirements while participating in an
execution, were used in the process. Should the ultimate
punishment be exempted from public scrutiny?
11. Changes to Conditional Examination
Existing law limits conditional examinations by the prosecution
in capital cases to when a witness's life is in danger. This
bill removes any limitation from conditional exams.
HCRC notes:
This proposal makes no provision that counsel actually
be appointed and in attendance at such an examination.
Allowing such conditional testimony raises serious
constitutional concerns under the Sixth Amendment
confrontation clause.
12. Must Listen to the Client
While an appeal from a judgment imposing death sentence is
automatic and not be waived, this bill seems to potentially
eliminate that automatic appeal by requiring appellate counsel
to "respect the right of the client to determine the goals of
representation."
HCRC expresses concerns with this change stating:
If enacted, this legislation would remove bedrock legal
provisions enacted to prevent the State from
erroneously or improperly depriving any person of his
or her life. It is precisely because execution is an
extreme and irrevocable punishment that the conditions
SB 779 (Anderson)
Page 43
under which it may be imposed are subject to strict
constitutional limitations. Dismantling the mechanism
by which the courts satisfy themselves that those
conditions have been met gives rise to the risk that
the State may take a life in violation of due process
protections and the values that underlie constitutional
and statutory limitations on imposing the sentence of
death.
13. Changes to the State Public Defender Appointment
This bill makes a number of changes to the Office of the State
Public Defender. The intent appears to have them take more
death penalty appeals, but there has never been any indication
that they don't currently take more than the office can
competently handle.
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