Now that Proposition 66 — the initiative to speed up executions in California — has taken effect, albeit with one major exception, there is speculation when the next death sentence will be enforced. Bob Egelko in the San Francisco Chronicle (“Death penalty foe expects ‘wave’ of California executions“) and Maura Dolan in the Los Angeles Times (“Pace of executions in California may be up to Gov. Jerry Brown“) have recently examined how soon the state might kill a murderer for the first time since 2006. Because it might not be long, it’s worth looking at the Supreme Court’s unique place in the execution process.
The court’s role in reviewing a death penalty judgment is fairly well known. It automatically and directly hears appeals from any death sentence. It also considers post-appeal habeas corpus petitions from death row prisoners, although Proposition 66 now requires those petitions to first be determined by the superior court. Less familiar is the court’s involvement when an execution is imminent.
Dolan’s article notes that if Governor Brown wants to commute a condemned prisoner’s death sentence, he might need the consent of four Supreme Court justices. As we’ve noted, that consent is required by the state constitution if the Governor wants to “grant a pardon or commutation to a person twice convicted of a felony.” (See, recently, here.)
The court’s justices are also on call the day (or night) of a scheduled execution. In his memoir, former Chief Justice George described the “customary practice” the court followed in the hours before a 1992 execution, when he was a new associate justice:
[T]he seven justices of our court, in accordance with the court’s long-established policy, assembled in the Chief Justice’s chambers, along with a few staff attorneys—usually persons who were tracking the particular case. We gathered, always, in order to remain immediately accessible in the event our court would be called to rule upon any last-minute stay application filed in the California Supreme Court. To facilitate this eventuality, in case there was a filing, the execution chamber in San Quentin Prison . . . was equipped with three telephone lines—one to the governor in the event he chose to act on a last-minute application for a reprieve, a second line to our court, and a third line available for communication with the federal courts or other persons.
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At 6:07 a.m. our court, through the open phone line that had been hooked up between the execution chamber and the Chief Justice’s chambers, received the inquiry from the associate warden over the hotline that was customary during the course of such a night’s events. This was always the language that the associate warden would direct to our court as we were seated around the Chief Justice’s conference table. “Is there any matter now pending before the California Supreme Court that would prevent the execution from going forward?” Then, again following our customary routine, the clerk of our court glanced at the Chief Justice and then at the other assembled justices, and upon receiving a negative nod of the head from each of us, responded to the associate warden with the word “no.” The associate warden soon came on the line again and proceeded to give us all—for some reason or other, and I don’t quite know why—a running account over the phone line of each event in the execution protocol as it took place. . . . Then, after what seemed like a very lengthy period but I believe in Harris’ case was only 14 minutes—during which not a single word was uttered by anyone in the Chief Justice’s chambers—the silence was perforated by the associate warden’s words, “Flat line,” which indicated the medical personnel had verified that the EKG showed no more heartbeat and that the execution of Robert Alton Harris had been carried out at 6:21 a.m. When that was done, we all got up, went our separate ways, and quietly left to go home and get a bit of sleep as it was getting light outside after a very long night.
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Each justice had been furnished with a notebook prepared by the clerk containing contact information for each of the justices and tracking attorneys and clerks in case of unexpected absences or early departures, and also for various federal courts and prosecutorial and defense offices. There were persons in the clerk’s office who specialized in handling capital cases, including Mary Jameson, a very able person in charge of the unit involved in receiving transcripts, communicating with the attorney general and defense counsel during the course of automatic appeals and writ proceedings, and then setting up the liaison that was involved on execution nights.
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Of course, when I became Chief Justice I had to realize that, although there wasn’t that much added responsibility in terms of presiding over this type of late-night conference, it still added a bit more solemnity to it for me, knowing this was a function that I was presiding over, that I had a responsibility for, and that I had to, with a nod of my head, communicate the go-ahead to the clerk, who in turn verbalized it to the associate warden at the other end of the line in the execution chamber.
The protocol might not be exactly the same for the next execution, whenever it might come, but the court will likely soon need to prepare for a ritual it hasn’t engaged in for almost 12 years.