April 2, 2017

“Prop. 66 could deal ‘mortal blow’ to court”

Maura Dolan reports in today’s Los Angeles Times about Proposition 66, the speed-up-the-death-penalty initiative that passed in last year’s election with 51 percent of the vote.  The Supreme Court, with Chief Justice Tani Cantil-Sakauye and Justice Ming Chin recused (and their pro tem replacements uncertain), put the law on hold while it considers a writ petition — Briggs v. Brown — challenging the law’s constitutionality.  The briefing in the case is available online, except for a host of amicus briefs filed Thursday, which are not up yet.

The Times article — subtitled “Measure to quicken executions would inundate justices with extra work on appeals, experts warn” — focuses mostly on the parts of the initiative that require extreme expediting of judicial review.  It quotes Jon Eisenberg, president of the California Academy of Appellate Lawyers, which opposed the initiative, as saying, “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder.”  [Disclosure:  Eisenberg is “of counsel” to Horvitz & Levy.]  It is unclear whether the court could comply with Prop. 66’s draconian time limits even by handling nothing but death penalty appeals, because those appeals take considerably more work than the average case.

The court has examined before complaints about delay in the death penalty system, ironically by condemned defendants, who claim that systemic delay violates the Eighth Amendment bar against “cruel and unusual punishment.”  Most recently, in its 2015 People v. Seumanu opinion, the court did not definitively reject the argument, but nonetheless stated, “allowing each case the necessary time, based on its individual facts and circumstances, to permit this court’s careful examination of the claims raised is the opposite of a system of random and arbitrary review.”  (People v. Seumanu (2015) 61 Cal.4th 1293, 1375.)  The opinion also quoted a federal appeals court:  “‘We believe that delay in capital cases is too long.  But delay, in large part, is a function of the desire of our courts, state and federal, to get it right, to explore exhaustively, or at least sufficiently, any argument that might save someone’s life.'”  (Ibid.)  This indicates that the court will be sensitive to the harm caused by any law that rushes the process.

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