Capital Sentencing Expert Foresees Problems with California Proposal

Yesterday, California voters passed Proposition 66, a measure that is designed to hasten the capital sentencing process. Professor Sean Kennedy, executive director of the Loyola Center for Juvenile law & Policy and former head of the Federal Public Defender's Capital Habeas Unit, foresees problems:

Habeas lawyers are likely to argue that Prop 66 violates due process. For 40 years, the state supreme court decided all the capital habeas petitions to ensure uniformity and fairness in the application of the death penalty in California.  Now all bets are off because the individual trial judges will decide those issues, leading to conflicting decisions and inconsistent application of the death penalty throughout the state.     

Comparing California's Competing Death Penalty Initiatives

By Adjunct Professor Paula Mitchell
Executive Director, Alarcón Advocacy Center & Legal Director, Loyola Project for the Innocent

On Nov. 8, 2016, California voters will choose between two competing death penalty initiatives: Prop 62 ends capital punishment and saves California taxpayers $1.5 billion over the next 10 years, while the other measure, Prop 66, doubles down on the state’s costly, failed system, spending millions more in an effort to speed up executions.

The state has spent roughly $5 billion over the last 40 years on a system that has produced no more than 13 executions. Supporters of Prop 62, known as the Justice That Works Act, say it is too costly, it does not deter crime, it risks executing innocent people, it is not evenly applied racially or geographically, and it is fundamentally a failed system that cannot be repaired. 

They say its time to end the death penalty because the system has long been dysfunctional and is now broken beyond repair. They also argue that ending the death penalty will prevent the state from ever executing anyone who is actually innocent of the crimes for which they were convicted. Prop 62 is retroactive and will convert the death sentences of the 747 inmates on death row to life without the possibility of parole and increase to 60% the share of wages earned while working in prison that are dedicated to victim restitution orders.

By contrast, the Death Penalty Reform and Savings Act of 2016, Prop 66, claims the system can be fixed and proposes to implement various amendments to state law aimed at speeding up the judicial review process and the rate of executions, including suggested time frames and limitations on direct appeal and habeas corpus proceedings, changing the process for appointment of to appoint counsel in direct appeals and habeas corpus petition proceedings, shifting initial jurisdiction for habeas corpus petitions, and making various other changes to the laws and procedures that would ease regulations surrounding the lethal injection protocols developed and employed by the California Department of Corrections and Rehabilitation (CDCR). These proposed changes will increase state costs by tens of millions of dollars annually, with the fiscal impact of such costs being unknown in the longer run.

The full report appears below.

California's Death Penalty: A Year in Review

By Adjunct Professor Paula Mitchell

This op-ed originally appeared on Justia.com.

On November 6, 2012, California voters narrowly defeated Proposition 34, a measure that would have replaced the state's death penalty with the sentence of life without the possibility of parole (LWOP) as the state's most severe punishment. Prop 34 failed to pass by about 250,000 votes.

Opponents of Prop 34 used a classic political technique to defeat the measure: fear mongering. They told voters that "instead of justice, killers [would] get lifetime housing/healthcare benefits" if Prop 34 passed. Voters were urged to keep the current system of capital punishment in place to "Protect California." They convinced voters that the death penalty was needed to punish people like "Richard 'The Night Stalker' Ramirez [who] kidnapped, raped, tortured and mutilated 14 people and terrorized 11 more including children and senior citizens."

The voters were duped. On June 17, 2013, after nearly a quarter of a century on death row at great expense to taxpayers, Richard Ramirez died peacefully at Marin General Hospital in Greenbrae, California, where he was receiving treatment for B-cell lymphoma.

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Ripe for Resolution: Ending Taxpayer Expenditures on Pointless Litigation

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.").

Prop. 34 and the Death Penalty

Professor Laurie Levenson was quoted in a Guernica Magazine story by Casey Michel titled, "California's Death Penalty Decision," published on November 5.

Levenson on what separates this proposition from previous attempts to repeal the death penalty:

"This round's not really about a morality issue--it's a cost issue," says Levenson. "The pitch this time [from the repeal camp] is that when we can't fund our schools, can't fund our highways, why are we funding this program that already has these exorbitant costs?"

To support Levenson's argument, Michel references Adjunct Professor Paula Mitchell's 2011 report on death penalty costs in California.

Michel writes:

"A report from 2011, authored by Judge Arthur Alarcon and Prof. Paula Mitchell, found that switching those on death row to life imprisonments without parole-as Prop 34 would accomplish-would save the state $170 million per year, tallied to $5 billion over the next two decades."

Levenson also spoke about proposition's chances of passing:

"I don't know what's going to happen, but this is the most traction I've seen the death penalty repeal get in decades," Levenson noted. "We can't shorten the process. We can't take shortcuts. There's too much at stake."
Read the full article here.

In evaluating Prop. 34, Prof. Levenson assesses effectiveness of death penalty

Professor Laurie Levenson assessed the effectiveness of the death penalty in a recent story about Californai's Prop. 34, which would eliminate the death penalty in the state.

"There is no showing the death penalty does anything good. It's not a deterrent, all it does is suck in money and you would hope the public would say, 'we can we do better with that money,'" she siad.

She continued: "I think it is an emotional response. Emotionally, some people say I think killers have to die, and emotionally some people say I don't want to be killing in the name of the state. Often times that is what the debate comes down to.

Read the complete story.