LOS ANGELES (CN) – After a hearing on California’s voter-passed death penalty reform Tuesday, the California Supreme Court seems poised to strike down one of its central provisions: a requirement that the high court decide all death penalty appeals within five years.
Voters passed Proposition 66, also called Death Penalty Reform and Savings Act of 2016, with 51 percent of the vote in November, narrowly beating out a rival measure to repeal the death penalty that received 46 percent of the vote.
Supporters of Proposition 66 claim it will speed up California’s dysfunctional death penalty process by limiting state appeals of death sentences to five years and transfer habeas petitions from the state Supreme Court back to the original trial court.
California has executed just 13 inmates since 1978, despite having the largest death row of any state. It currently has a backlog of 387 death penalty appeals and the court takes an average of 15 years to decide those appeals. There hasn’t been an execution in California since 2006, when U.S. District Judge Jeremey Fogel halted all executions in the state amid concerns that those being put to death experienced excessive pain under its three-drug protocol.
Proposition 66 also seeks to expand the number of attorneys available to defend death penalty cases and to speed up the review of using a single drug for lethal injections.
Former California Attorney General John Van de Kamp and Ron Briggs, whose father authored the measure that reinstated the death penalty in 1978, sued to block Proposition 66’s implementation shortly after its passage, saying it would eliminate inmates’ ability to file proper appeals by setting unrealistic timelines for judges to handle often complex cases.
The justices on the state’s high court appeared to agree Tuesday, grilling Deputy Attorney General Jose Zelidon-Zepeda over the measure’s wording and whether a provision saying the court “shall” rule on death penalty appeals within five years is binding.
Chief Justice Tani Cantil-Sakauye and Justice Ming Chin recused themselves from the proceedings because they both sit on the Judicial Council, which is named as a defendant in the lawsuit. They were temporarily replaced by Justice Andrea Hoch of the Third Appellate District in Sacamento and Justice Raymond Ikola of Santa Ana’s Fourth Appellate District.
If Proposition 66 is allowed to go forward, the council will have to adopt new rules and standards to speed up death penalty cases.
Zelidon-Zepeda told the justices that the five-year deadline is mandatory, but the measure specifies no consequences for failing to meet it. The point, he argued, is to set a goal.
“It’s a mandatory deadline that the proposition does not specifically address the consequences if it is not met,” he said.
“What does mandatory mean if there’s no penalty for adhering to it?” Justice Kathryn Werdegar asked.
“This particular deadline is the voter’s indication of a policy determination and the voters’ intent to have these cases decided within this period of time,” Zelidon-Zepeda said.
“So what it might really be is its aspirational, directory, hopeful, so mandatory doesn’t really fit,” she said.
When Zelidon-Zepeda agreed with Werdegar’s description, he was challenged by Justice Goodwin Liu.
“This is a very unusual thing to say about a statute that uses the word ‘shall’ that it’s only aspirational, and then provides no work plan for how that goal is to be achieved,” Liu said.
Justice Mario Florentino-Cuellar criticized what he called “these pretty stark time limits.”
“I search in vain for language like ‘to the greatest extent practicable’ or ‘in the interest of justice,’ and I see instead a stark time limit,” he said.
Zelidon-Zepeda said the best thing would be to allow the law to be implemented, then see what happens. Opponents can always challenge the law as it’s applied, he said.
“I think the fundamental question is whether the petitioners have to show there are no set of circumstances under which this particular provision can be met or that its unconstitutional in the great generality of the cases,” he said. “It’s important to let it take effect to see if it can actually work.”