SACRAMENTO California’s Supreme Court will seek a constitutional amendment that would allow the state courts of appeal to review some death penalty cases, Chief Justice Ronald George announced on Monday.
The change would create “a more expeditious process” for disposing of more than 400 automatic death penalty appeals now pending before the state’s highest court, George said. The court now issues decisions in approximately 23 capital appeals annually.
“We could become an entirely death-penalty court and ignore our other responsibilities and still not get out of this hole for years and years,” George said.
Under the proposal George released Monday (.pdf), the Supreme Court would assign up to 30 cases a year to the appellate courts in California’s six districts. The Supreme Court would review the resulting decisions and summarily affirm them or reconsider the cases through a new round of oral arguments.
Justices on the Supreme Court could also decide to retain and hear appeals that present novel legal issues.
“We’re not trying to rush things, but I’ve always thought while I don’t believe in arbitrary timelines that you should be able to know within five years whether this is a valid decision or not,” George said. “There are many adverse consequences to the current system, which is dysfunctional in terms of handling death penalty cases.”
California has the most crowded death row in the nation with 667 inmates. Some have been awaiting execution for decades: The appeal of Jackie Ray Hovarter sentenced to death in November 1990 for the 1984 kidnapping, rape and murder of a Willits girl is one of those pending before the Supreme Court.
George said he developed the proposal, in part, to prepare for his testimony before the California Commission on the Fair Administration of Justice in January. The legislatively created commission, chaired by former Attorney General John Van de Kamp, is expected to issue a report next year on whether the death penalty is administered fairly in California.
“I’m hopeful that it will stimulate dialogue at the Jan. 10 hearing,” George said.
George wants to place the constitutional amendment before voters in November 2008, a feat that would require the approval of two-thirds of the Legislature’s members. The Democrat-controlled Legislature in recent years has balked at tough-on-crime measures, and many members personally oppose the death penalty. Messages left with the Legislature’s Democratic leaders on Monday were not returned by press time.
Senate Republican leader Dick Ackerman of Orange County said he would be interested in studying George’s proposal, but wasn’t confident Democrats would feel the same way.
“It could be a partisan issue,” he said.
George said the appellate courts’ presiding justices have generally supported the proposal, although he’s still working with them on various details of the plan. One of those issues, he said, will be deciding how to distribute the cases evenly among all the appeal courts given that some jurisdictions produce more death penalty verdicts than others.
Reaction to the Supreme Court’s proposal was mixed.
In a press release, the California Attorneys for Criminal Justice called the proposal “a significant departure from California’s constitutional guarantee that every person facing government-ordered executions should have his [or] her case heard by the highest court in the state.”
San Francisco attorney Richard Ellis, a capital defense veteran, said the proposal underestimates the “huge educational curve” appellate justices will face in learning death penalty protocols.
“If they think this is going to speed things up, they’re very much mistaken,” Ellis said.
Others questioned whether the proposal will do anything to alleviate one of the biggest obstacles to speedy death penalty appeals: the lack of qualified attorneys. About 90 men on death row currently lack attorneys for direct appeals while close to 300 still need lawyers for habeas corpus challenges, said state Public Defender Michael Hersek.
“It’s unclear how this proposal might affect habeas corpus cases,” Hersek said. “And I think that lack of clarity points to the need for a comprehensive approach to the problem.”
George said that assigning cases to appellate courts might attract some regional attorneys who would otherwise be unwilling to take a state-level appeal. And the chief justice said he would continue to lobby for more state funding of appellate lawyer programs.
Michael Rushford, president of the pro-death penalty Criminal Justice Legal Foundation, said the proposal reflects “that all of the justices recognize the current system is a problem.”
But Rushford said he isn’t optimistic that the Legislature will vote to place it on the ballot. Other groups, he said, may have to launch an initiative campaign to put it before voters.
“I don’t think there’s any lack of interest by voters in this state to do something about the death penalty,” he said.