Last November, the people of California voted to retain capital punishment, rejecting the argument that the system was broken beyond repair. Tomorrow, the Senate Public Safety Committee will hear a pair of bills to enact sweeping reforms that would remove obstructions while saving money, yet preserve the essential reviews of capital cases that are genuinely needed.
SB 779 by Senator Anderson would make the following key reforms:
A separate constitutional amendment, SCA 13, would allow direct appeals to be heard in the courts of appeal, as noncapital felony cases are, with review by the Supreme Court. A constitutional amendment is needed because the current direct appeal to the Supreme Court is written into the state constitution.
• Limit review of most capital cases to two: one appeal on the trial record and one additional review, called habeas corpus, for claims needing facts outside the record. Additional habeas corpus petitions would be limited to cases with a substantial claim of actual innocence, which is rare in capital cases.
• Move the habeas corpus proceeding from the state Supreme Court to the original trial court, where Congress and most states have placed such reviews.
• Allow the Department of Corrections and Rehabilitation to adjust execution protocols to meet the demands of court decisions without going through the cumbersome, expensive, and time-consuming Administrative Procedure Act, ending a needless obstruction that has prevented executions for seven years.
• Increase the number of attorneys to handle capital appeals by eliminating pointless restrictions that have little to do with actual qualification and by requiring attorneys to accept capital cases as a condition of receiving noncapital appointments.
Shortening the appeals process would save money rather than cost money. In the article primarily relied upon by opponents of the death penalty, the cost of incarceration on death row for decades of appeals is identified as one of the largest costs. Reducing the time from sentence to execution to five or six years would save three-quarters of this cost.
Considerable commentary, much of it misleading, has been directed to one minor provision of the law. When the Legislature adopted lethal injection in 1992, it retained the gas chamber and permitted the inmate to choose. An amendment in 1996 made injection the "default" method if the inmate does not choose. The statement in the Sacramento Bee today that this bill requires an election is false. The election language, Penal Code section 3604(b), is unchanged from current law.
Similar laws exist in other states, and some inmates elsewhere have chosen the older methods. Given that the alternative is provided by law and may be chosen, it needs to be operational. This can be done by providing a painless alternative to the prior method of cyanide gas. There are many alternatives, and the bill leaves the choice to the Department.
"There are three possible ways to go on the death penalty: fix it, repeal it, or stick with the needlessly expensive and obstructed status quo," said CJLF Legal Director Kent Scheidegger. "The people have rejected repeal. The Legislature must now choose between reform and the existing wasteful system."