BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1331 (Cedillo) 1
As Introduced February 19, 2010
Hearing date: April 6, 2010
Penal Code
MK:mc
CALIFORNIA RACIAL JUSTICE ACT: DEATH PENALTY
HISTORY
Source: Equal Justice Society
Prior Legislation: None
Support: Murder Victims' Families for Reconciliation; California
Crime Victims for Alternatives to the Death Penalty;
Life Support Alliance; Death Penalty Focus; Legal
Services for Prisoners with Children; Progressive
Christians Uniting; American Civil Liberties Union;
Friends Committee on Legislation of California;
California Catholic Conference; Asian Americans for
Civil Rights and Equality; California Public Defenders
Association; Office of Public Policy & Social Concerns
of the Archdiocese of San Francisco; California Church
IMPACT
Opposition:California District Attorneys Association; Crime
Victims United of California
KEY ISSUE
SHOULD THE LAW PROVIDE THAT NO PERSON SHALL BE CONDEMNED TO DEATH OR
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EXECUTED PURSUANT TO ANY JUDGMENT THAT WAS SOUGHT OR OBTAINED ON THE
BASIS OF RACE?
PURPOSE
The purpose of this bill is to ensure that no person will be
condemned to death or executed pursuant to any judgment that was
sought or obtained on the basis of race.
Existing law provides for the penalty of death or life without
parole when a person is convicted of first degree murder along
with one of the enumerated special circumstances. (Penal Code
190.2.)
This bill provides that no person shall be condemned to death or
shall be executed pursuant to any judgment that was sought or
obtained on the basis of race.
This bill provides that a finding that race was the basis of a
decision to seek or impose the death sentence may be established
if the court finds that race was a significant factor in the
decision to either seek or impose the death penalty in the
county or the state at the time the death sentence was sought or
imposed.
This bil l provides that evidence to establish the above may
include statistical evidence or other evidence including, but
not limited to, the sworn testimony of attorneys, prosecutors,
law enforcement officers, jurors, or other members of the
criminal justice system, that irrespective of statutory factors,
one or more of the following applies:
Death sentences were sought or imposed significantly
more frequently upon persons of one race than upon persons
of another race.
Death sentences were sought or imposed significantly
more frequently as punishment for capital offenses against
persons of another race.
Race was a significant factor in the decision to
exercise preemptory challenges during jury selection.
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This bill provides that the defendant shall have the burden of
proving by a preponderance of the evidence that race was a
significant factor in the decision to seek or impose the death
penalty in the county or state at the time the death sentence
was sought or imposed. The state may offer evidence in
rebuttal. If a program to eliminate race as a factor in seeking
or imposing the death penalty was in effect in the county or the
state at the time the death sentence was sought or imposed in
the defendant's case, the court may consider the evidence in
rebuttal.
This bill provides that the defendant shall state with
particularity how the evidence supports the claim that race was
a significant factor in decisions to seek or impose the death
penalty in the country or the state at the time the death
sentence was sought or imposed:
The claim may be raised by the defendant in a pretrial
motion or in postconviction proceedings.
The court shall schedule a hearing on the claim and
prescribe a time for submission of the evidence by both
parties.
If the court finds that race was a significant factor in
the decision to either seek or impose the death penalty in
the county or the state at the time the death sentence was
sought or imposed, the court shall either order that the
death penalty not be sought if the finding is made before
trial, or that the death sentence imposed be vacated and
the defendant sentenced to life imprisonment without the
possibility of parole if the finding was made
postconviction.
Any jury testimony must be consistent with Evidence Code
Section 1150 which addresses which evidence is admissible
regarding what occurred in the jury room when the validity
of a verdict is in question.
This bill provides that notwithstanding any other
provision or time limitation, a defendant may seek relief
from the defendant's death sentence upon the ground of
racial considerations played a significant part in the
decision to either seek or impose the death penalty by
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filing a motion seeking relief.
This bill provides that its provisions apply retroactively. It
further provides that for persons under a death sentence imposed
before January 1, 2011, motions shall be filed with the Supreme
Court on or before December 31, 2013.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
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deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Most people in California assume that death sentences
are imposed based on the gravity of the crime, not
because of the race of the victim, defendant or jurors.
Unfortunately, studies show this may not always be true.
The first statewide study on the role of race and
ethnicity in death sentencing in California, published
in the Santa Clara Law Review, looked at data from death
sentences in the 1990s. This study found that although
only 27.6% of California murder victims are white, 80%
of executions in California have been for those
convicted of killing whites. A defendant is three to
four times more likely to be sentenced to die in cases
where the victim is white than in cases where the victim
is African American or Latino. Meanwhile, murder cases
in which the victim is African American or Latino often
remain unsolved.
African Americans have long been over-represented on
death row compared to their proportion of the
population. In recent years, more and more Latinos have
been sentenced to death. In 2007, half of the people
sentenced to death in California were Latino.
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Research also shows that all white juries are more
likely to sentence someone to death. One prosecutor in
a California death penalty case testified that it was
standard practice in his office to exclude African
Americans women from jury service in death penalty
cases.
The Solution
The California Racial Justice Act (RJA) would ensure
that no one is sentenced to die in California because of
race or ethnicity. The RJA would create a procedure for
the court to decide whether race was a significant
factor in the decision to seek or impose the death
penalty in a particular case. The RJA would allow the
defendant to file a motion and present evidence
supporting his or her claim-including studies and
statistical evidence. The prosecution could present
evidence in response. This motion could be filed in the
pre-trial phase or in the post-trial phase of the case.
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Two states, Kentucky and North Carolina, have already
implemented Racial Justice Acts. California must also
enact a Racial Justice Act to ensure that, if the state
continues to pursue the death penalty, that it is
applied equally, without regard to the race or ethnicity
of the individuals involved.
2. Creation of the California Racial Justice Act
This bill would create the California Racial Justice Act. It
sets up a procedure for a defendant to challenge a death
sentence because the death penalty was either sought or obtained
on the basis of race. It sets up a procedure where the
defendant can bring a motion either pretrial or postconviction.
The defendant bears the burden of proving by a preponderance of
the evidence that race was a significant factor in the decision
to seek or impose the death penalty in the count or the state at
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the time and shall present evidence supporting his or her claim.
The prosecutor may present evidence in response.
Under this bill, evidence to establish that race was a
significant factor in the sought or imposition of capital
punishment may include but would not be limited to: the sworn
testimony of attorneys, prosecutors, law enforcement officers,
jurors, or other members of the criminal justice system, racial
bias in the prosecutor's pattern and practice of seeking the
death penalty, a history
of a community's hostility towards a certain race, political
pressure, preemptory challenge in jury selections and hiring
practices in the prosecutor's office. Any evidence shall meet
existing Evidence Code standards regarding juror evidence
whenever a verdict is questioned.
Evidence to establish a finding of racial bias may include one
or more findings: 1) death sentences are sought significantly
more frequently upon a person of one race; 2) death sentences
were sought or imposed more significantly for capital offenses
of one race than as punishment for capital offense against
person of another race; and 3) race was a significant factor in
the exercise of preemptory challenges during jury selection.
If the court finds pre-trial that race was a significant reason
the death penalty was sought, the court would order that the
death penalty not be sought. If the court finds that race was a
significant factor post-conviction, the court is to vacate the
death penalty conviction and the defendant be sentenced to life
imprisonment without the possibility of parole.
This bill is expressly retroactive, providing that a person who
has been sentenced to death prior to January 1, 2011, has until
December 31, 2013, to file a motion with the California Supreme
Court. While it is appropriate to make this procedure
retroactive, it seems as if a three-year time frame would be
difficult to make since most of the people who have death
sentences have not been appointed habeas counsel. It may be
more appropriate to make the time frame three years from the
date of appointment of habeas counsel.
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SHOULD THE CALIFORNIA RACIAL JUSTICE ACT BE CREATED TO ALLOW A
DEATH SENTENCE TO BE CHALLENGED BECAUSE OF BIAS IN SEEKING OR
IMPOSING THE DEATH PENALTY?
WHAT IS THE APPROPRIATE TIME FRAME FOR THE FILING OF CLAIMS OF
PEOPLE WHO ARE ON DEATH ROW AS OF THE ENACTMENT OF THIS
LEGISLATION?
3. Santa Clara Law Review
As noted in the author's statement, a 2005 study published in
the Santa Clara Law Review examined "the racial, ethnic, and
geographical variations present in the imposition of the death
penalty in California. In doing so, it analyzes all reported
homicides committed in California during the 1990s, comparing
those that resulted in a death sentence with those that did
not." (Glenn L. Pierce & Michael L. Radelet, The Impact of
Legally Inappropriate Factors on Death Sentencing for California
Homicides, 1990-1999, 46 SANTA CLARA L. REV. 1 p. 1 (2005)
http://law.scu.edu/lawreview/File/lawreview_46sclr001.pdf.)
Despite commenting on the fact that their study was only as good
as the data they could get and suggesting that more
comprehensive data be kept, the study concluded that:
[T]he above data show strong disparities in death
sentencing in California for homicides committed in the
1990s. The data clearly indicate that the race and
ethnicity of homicide victims is associated with the
imposition of the death penalty. Overall, controlling
for all other predictor variables, those who kill
non-Hispanic African Americans are 59.3% less likely to
be sentenced to death than those who kill non-Hispanic
whites. This disparity increases to 67% when comparing
the death sentencing rates of those who kill whites with
those who kill Hispanics. The differences are
especially remarkable in cases where there was only one
victim and where the homicide did not include additional
felonies. In these cases, those who kill non-Hispanic
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whites are 7.6 times more likely to be sentenced to
death than those who kill non-Hispanic African
Americans, and 11 times more likely to be sentenced to
death than those who kill Hispanics. Where one of the
two identified aggravating circumstances above is
present, those who kill non-Hispanic whites are still
2.28 times more likely to be sentenced to death than
other homicide offenders. (Footnotes omitted) (Glenn L.
Pierce & Michael L. Radelet, 46 SANTA CLARA L. REV p.
37-38 (2005).)
4. Support
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Many of the supporters of this bill state that if California is
going to have a death penalty it should be applied fairly, and
currently it is not. This bill would "ensure that no one is
sentenced to die in California because of race or ethnicity."
Murder Victims' Families for Reconciliation states:
Research shows that the death penalty is not applied
fairly in California. A defendant is three or four
times more likely to be sentenced to die in cases where
the victim is white than in cases where the victim is
African American or Latino. Meanwhile, murder cases in
which the victim is African American or Latino often
remain unsolved. For decades, African Americans have
been overrepresented on death row. And in recent years
Latinos have increasingly been sentenced to death,
particularly in Los Angeles and Orange County.
5. Opposition
The California District Attorneys Association opposes this bill
stating:
The decision to seek the death penalty is the most
important and solemn responsibility that a district
attorney faces. The finality of the punishment and the
societal consequences implicated by the death penalty
demand that the decision to seek death be undertaken
with extreme reverence for the process and the outcome.
To this end, most district attorney offices have adopted
formal death review policies. The team involved in this
review often includes the trial and veteran prosecutors,
the chief investigator, the chief deputy district
attorney, and the district attorney himself or herself.
This process entails a thorough examination of the crime
as well as the personal and criminal histories of the
defendant. Often, defense counsel is invited to present
an in-person or written (or both) recitation of relevant
information. The team vigorously weighs aggravating and
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mitigating circumstances, but there is no place for bias
or vindictiveness, whether or not such feelings might be
racially based.
Opponents of the death penalty will offer statistical
information intended to prove their allegation that a
racial bias exists in the application of this
punishment. As we all know, statistics are
extraordinarily malleable and can be massaged to support
nearly any possible result. The bottom line is that,
during the more than 30-year history of California's
death penalty law, there has never been even a single
finding of prosecutorial abuse in this decision making
process. No California death sentence has ever been
overturned due to a finding that a prosecutor utilized
an improper motive such as race, bias, or vindictiveness
in making the decision to seek death.
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