By Adjunct Professor Paula Mitchell
This post originally appeared in the Courts and Procedure section on Verdict by Justia.
When the Supreme Court decided Ryan v. Gonzales earlier this year, it created an interesting dilemma for federal courts in death-penalty states. The Court held that federal courts are not required to stay habeas corpus proceedings for death row inmates who are mentally incompetent and unable to assist counsel in their post-conviction proceedings. "Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State's attempts to defend its presumptively valid judgment." Whether to grant a stay was left to the discretion of the district court.
Typically, a defendant who has been sentenced to death spends decades on death row challenging his conviction and sentence in direct appeals and habeas corpus proceedings, in both state and federal courts. During that time, it is not uncommon for a condemned inmate to experience a decline in his or her mental competency due to any number of factors, including the mental deterioration that comes with years of living in harsh conditions or in solitary confinement. Before Gonzales, when capital habeas proceedings were pending before a federal district court, and the inmate (or, "petitioner") was unable to assist his counsel in those proceedings, the district court would frequently "stay" the proceedings to provide the inmate with an opportunity to seek mental health care intended to return him or her to competency so that the petitioner could assist his or her counsel.
After Gonzales, however, federal courts are directed to deny requests for stays in state capital cases where there is "no reasonable hope of competence." This leads to an absurd result. Petitioner's counsel will now have to continue pursuing costly habeas corpus litigation of the merits of their mentally incompetent clients' constitutional claims. If the petitioner's claims are successful and his conviction or sentence or both are reversed, the state will be unable to retry the case in most cases, due to the inmate's lack of competency. In most states, those petitioners will remain on death row, even though their convictions or sentences were found to be constitutionally infirm and they are entitled to a new trial. And if the state prevails and the federal court upholds the conviction and sentence, those seriously mentally ill inmates will remain on death row, even though the state will in many, if not most, cases never carry out those death sentences because the inmates will not, in all likelihood, ever regain competency and become eligible for execution. (SeeFord v. Wainwright, where the U.S. Supreme Court held that "the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.").
In California, home to the nation's largest death row (with 741 condemned inmates), the dilemma resulting from the Gonzales decision may be especially acute. One federal judge wasted no time in addressing this dilemma by directing the parties involved in a case pending before him to start talking settlement. In a capital case, "settlement" rarely occurs, but when it does, it typically results in moving a mentally ill inmate off of death row to another facility and re-sentencing him or her to life without the possibility of parole. Three weeks after Gonzales came down, Judge Lawrence O'Neill--who in 2007 had granted a stay in the federal habeas proceedings of death row inmate Ronald McPeters based on mental decomposition that rendered him unable to assist his counsel in post-conviction proceedings--ordered the Acting Warden of San Quentin State Prison to meet and confer with the Fresno County District Attorney to try to settle the case.
The case stems from a robbery and murder that took place nearly 30 years ago in 1984. The federal proceedings have been pending for eighteen years, since 1995. The parties stipulated in 2007 that the petitioner exhibited paranoia and chronic psychotic disorder, which made him unable to assist his appointed federal habeas counsel. Since that time, his counsel has provided annual status reports that revealed no material change in his condition. The case certainly appears to satisfy the "no reasonable hope" standard set forth in Gonzales.
In the district court's order directing the parties to meet and confer, the court explained the predicament by noting that if McPeters's claims were successful, he would be returned to Fresno Superior Court for retrial. However, given his current mental state, McPeters could not be retried and would then become the responsibility of the County, possibly for as long as he lives. On the other hand, if the court were to determine relief should not be granted and all appeals were to favor the Warden, McPeters could challenge ensuing execution proceedings on the ground that he is incompetent to be executed under Ford v. Wainwright, 477 U.S. 399 (1986). Should the State win, the matter very well could end up before that district court again. Either way, if McPeters remains mentally impaired in the future, the chances the State of California will be able to carry our execution of this death sentence are remote at best.
Cognizant of the exorbitant costs that accompany death-penalty-case litigation, the district court noted that the case was "ripe for resolution, which in turn will promote judicial economy and stem further taxpayer expenditure on pointless litigation."
Figuring out how to resolve the case, however, has proven problematic.
In its January 29, 2013, order directing the parties to meet and confer the district court stated that "members of the federal bench in the California District Courts have been informed by various deputy attorneys general, that the Warden does not have settlement authority in federal cases reviewing state convictions. The authority is said to remain vested in the County District Attorneys." The court noted that because "further litigation of McPeters' case very likely will not alter his need for ongoing psychiatric treatment, and necessarily will cost taxpayers tens of thousands of dollars, the State Attorney General is directed to meet and confer with the District Attorney of Fresno County to discuss the potential of settlement in light of this order."
The District Attorney, however, informed the court that it "has no authority to settle federal habeas proceedings pending before the District Court and the Office of the Attorney General has no authority to settle any matter that would modify a state court judgment in the absence of a miscarriage of justice." The court scheduled a status conference, ordered all attorneys of record to appear in person, and encouraged the Fresno County District Attorney to attend the conference as well.
There is serious confusion surrounding who is authorized to settle death penalty cases on behalf of the people of California. For crimes committed prior to June 6, 1990, Penal Code section 1385 permits a state court trial judge to order that an action be dismissed "either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice," including a finding of special circumstances under California's death penalty statute. But in 1990, voters passed Proposition 115, known as the Crime Victims Justice Reform Act, which removed from judges the authority to "strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court" in cases where the offense was committed on or after June 6, 1990.
The case of Anthony Majoy, settled earlier this year, illustrates how settlement can occur in special circumstance cases where the crime occurred prior to June 6, 1990, such as in theMcPeters case described above.
Majoy was convicted for his role as a lookout in a 1985 multiple murder-for-hire scheme in which two brothers, Neil and Stewart Woodman, hired two other brothers, Steven and Robert Homick, to kill the Woodmans' parents. Stewart Woodman and Majoy were tried together. Both were convicted of two counts of first-degree murder with special circumstances and conspiracy. The more culpable Woodman brothers both received sentences of life with parole, whereas Majoy was sentenced to life without the possibility of parole. (Steven Homick's conviction and sentence of death was just affirmed on direct appeal by the California Supreme Court on December 3, 2012, twenty years after his appeal was filed.)
Majoy's conviction was affirmed on appeal. Evidence of his actual innocence came to light during post-conviction proceedings, but his federal habeas corpus petition was dismissed as untimely. While his habeas appeal was pending in the Ninth Circuit Court of Appeals, the Los Angeles District Attorney's office agreed to settle the case. The Head Deputy District Attorney and prosecutor at Majoy's trial stipulated that the special circumstances should be stricken and joined with Majoy in seeking an order from the trial court reducing his sentence from LWOP to three terms of 25 years to life.
The stipulated petition for a writ of habeas corpus states that "in order to achieve justice and provide due process and equal protection of the laws, the parties stipulate that the special circumstances be stricken and that Petitioner be resentenced to concurrent terms of 25 years to life with parole." Majoy in turn agreed to dismiss his appeal voluntarily.
Majoy is 74 years old. He had no prior convictions at the time he was sentenced and has been a model prisoner throughout his 23 years of incarceration. He is currently housed in the honor dorm at the Lancaster State Prison. The Los Angeles District Attorney's office should be applauded for having apparently concluded that under the circumstances of Majoy's case, the continued expense to litigate his claims was not a productive use of the public's dwindling resources.
The Fresno County DA should employ a similar strategy in the McPeters case, especially since the federal court is urging them to settle. As the court stated in its order directing the parties to discuss settlement, "[t]he real issues to be addressed deal with the intersection of due process compliance with the law by all involved and trying to end the futile but factual bleeding of taxpayer money at a time when resources are simply not available except for the most necessary reasons."
There are 286 California death row inmates whose offenses were committed prior to June 6, 1990. In those cases, the state trial courts are authorized to enter orders settling appropriate capital cases, like McPeters. (See People v. Williams and Tapia v. Superior Court). The California Attorney General should issue an opinion addressing what settlement procedures are available and appropriate, including which agency or office is authorized to enter into settlement discussions, in capital cases that may be ripe for resolution but where the offenses occurred after passage of Proposition 115.
In light of the evolution of death penalty jurisprudence in the Supreme Court's case law, and particularly its rulings in Roper v. Simmons and Atkins v. Virginia, concerning the relative culpability of certain categories of offenders, other cases that merit consideration for possible settlement include cases where petitioners were close to the age of 18 at the time of the offense and cases where petitioners have an IQ close to that which would disqualify them for execution under Atkins.
Further, given the current suspension on executions in California under the ongoing lethal-injection litigation, and the fact that there are 135 inmates who are between the ages of 60 and 89 years old, consideration should also be given to settling appropriate cases where petitioners have serious, chronic physical impairments or other serious medical issues, or who are over the age of 72 and have been on death row for 25 years or more.
The California Supreme Court and the Ninth Circuit Court of Appeals both have ADR programs equipped to assist in settling even the most complicated cases. Indeed, the Ninth Circuit's ADR program has assisted other states in settling death penalty cases. Settlement of appropriate cases will help head off miscarriages of justice and, in the words of Judge O'Neill, put an end to "taxpayer expenditure on pointless litigation."
Paula Mitchell is career judicial law clerk to Hon. Arthur L. Alarcón, Ninth Circuit Court of Appeals. She teaches the Habeas Corpus Litigation Seminar.