Friday marks 50 years since the Supreme Court’s 6-1 opinion in People v. Anderson (1972) 6 Cal.3d 628 struck down the death penalty in the state as violating the California Constitution. (Credit goes to appellate attorney Bob Bacon for alerting me to the anniversary.) It was a ban that was short-lived. An initiative overwhelmingly approved seven months later amended the Constitution to overturn the decision. But Anderson nonetheless did spare over 100 condemned prisoners from execution, including Sirhan Sirhan (People v. Sirhan (1972) 7 Cal.3d 710, 717) and Charles Manson (People v. Manson (1976) 61 Cal.App.3d 102, 124).
Two Chief Justices played prominent roles in the case — the sitting Chief, unsurprisingly, but also a future Chief who was then the lead advocate defending the state’s death penalty system.
Anderson was the work of the Wright court. Chief Justice Donald Wright, who had been appointed by Governor Ronald Reagan, wrote the majority opinion, finding capital punishment both “cruel” and “unusual.” The court said that “[j]udgments of the nineteenth century as to what constitutes cruelty cannot bind us.” (Anderson, supra, 6 Cal.3d at p. 647.) And it explained that its decision was “not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members.” (Id. at p. 654.)
Justices Raymond Peters, Mathew Tobriner, Stanley Mosk, Louis Burke, and Raymond Sullivan concurred in the Chief Justice’s opinion. Justice Marshall McComb filed a brief dissent, asserting capital punishment was constitutional and thus “it is the duty of the Legislature or the electorate, and not the judiciary, to decide whether it is sound public policy to empower the imposing of the death penalty.” (Anderson, supra, 6 Cal.3d at p. 659.)
There are numerous interesting backstories about Anderson, some of which are recounted in the court history, “Constitutional Governance and Judicial Power,” and in former Chief Justice Ronald George’s memoir, “Chief.”
George, then a young Deputy Attorney General defending the death penalty in the Anderson case, speculates in his book that the court rushed a re-argument and opinion in Anderson “to preempt the U.S. Supreme Court from ruling on [a] California case, Aikens, as an unusually favorable vehicle in which the federal high court could draw a distinction between what is permissible in a death penalty case under the [federal] cruel and unusual punishment clause and what is not.” He argued both the Anderson and Aikens cases.
The Anderson opinion was issued while Aikens was still pending without decision after argument. The decision would never come because, under Anderson‘s state law principles that the U.S. Supreme Court would not review, Aikens was no longer subject to the death penalty. The Court thus dismissed certiorari as moot. (Aikens v. California (1972) 406 U.S. 813). Three weeks later, in cases that had been companions to Aikens, the Court struck down as unconstitutional death sentences imposed in other states. (Furman v. Georgia (1972) 408 U.S. 238.)
George says the Attorney General personally directed him to write “a very hard-hitting” rehearing petition in Anderson. He did so, which caused word to reach him that “there were a couple members of the court who were so disturbed by the [petition’s] language . . . that they suggested [George] should be questioned about whether the language . . . constituted contempt of the court.”
George also reports that the Attorney General wrote to Justice McComb, unsuccessfully urging McComb to incorporate substantial portions of the rehearing petition into a dissent from the denial of rehearing. Subsequently, then-State Senator and future-Governor George Deukmejian enlisted George to assist in drafting the initiative that overturned Anderson.
Another interesting fact is that the California Supreme Court’s decision to find the death penalty unconstitutional was leaked the day before the Anderson opinion filed.