Briefing Report: The Death Penalty in California

Wednesday, August 17, 2011


On July 29, 2011, the state of Delaware executed Robert Jackson III for the ax murder of a woman during a 1992 home robbery. While it was just the first execution in Delaware since 2005, it was the 30th execution in the United States this year. Nine other states have already joined Delaware in executing inmates and another four have tentatively scheduled executions for later this year.1 Unfortunately, California is not among them.

Despite possessing a brand new death chamber, having the largest death row in the nation, passing six voter approved initiatives expanding the death penalty since 1978 and maintaining consistent support for the punishment among the majority of voters for nearly 50 years2 , actual use of the death penalty is more of an unfulfilled promise than a reality in this state. While California has carried out 13 executions since 1978 -- when the death penalty was reinstated -- it also has the unfortunate distinction of having the longest period between conviction and execution, which various sources estimate between 17.5 and 25 years. The wait is so long that 54 individuals (over four times the number of persons executed) have died of “natural causes” while awaiting execution.

There is no doubt that the snail’s pace with which California has imposed the death penalty is bewildering, especially when one considers that Texas alone has executed 10 inmates in the past year and there have been 1,264 executions in the U.S. since 1976. Just as troubling are the operational problems with the system, the seemingly endless court challenges, difficulty obtaining chemicals and the escalating incarceration costs due to our failure to expedite the process and actually perform executions.

What is the current death penalty process?

While California’s death penalty system is painfully slow, it is quite thorough. Admittedly there are cases where condemned inmates have been resentenced due to errors such as ineffective counsel or improper jury instructions. However, no inmate on death row in this state has demonstrated factual innocence nor is there any proof from any organization or information that an innocent person has been executed since California reinstated the death penalty in 1978.

In California the death penalty may only be imposed on an individual over the age of 18 who has been found guilty of first-degree murder committed with one of 21 existing “special circumstances.” These circumstances include type of victims (i.e. peace, officer, judge, juror, etc.) and elements of the crime (i.e. mayhem, rape, torture, etc.) This means that not all murders are necessarily eligible for the death penalty and though the state has the largest death row in terms of the sheer number or persons awaiting execution, the penalty is imposed relatively infrequently compared to other states3.

In addition to limiting the class of individuals who may be sentenced to death, the California system also provides a number of protections and post-conviction options. During the trial both the prosecution and defense are allotted additional attorneys with a high level of qualification, the defense may conduct a separate investigation into the crime and defendant’s history, numerous experts and a special jury are summoned, and there is a separate penalty trial with the option of life imprisonment rather than death. On top of that, even if a jury unanimously imposes a sentence of death, the judge in the case is required to review the sentence and may separately reduce it to life without the possibility of parole under specified circumstances.

After the initial trial and sentence, a condemned inmate is also entitled to appeal his or her case to the California Supreme Court and may submit habeas petitions to both the state and federal courts. Under current state law, the direct appeal is mandatory but in some cases a defendant may waive his or her right to a habeas petition. The direct appeal is strictly a review of the trial record but an inmate may introduce new evidence through a writ of habeas corpus. Ultimately, even if the appeal fails and any habeas petitions are denied, there is still the option of executive clemency, successive habeas petitions, and civil rights lawsuits up until the moment the individual is executed.

Should an inmate ever reach the time where he or she is executed, the actual method of execution in California is either gas or lethal injection, at the condemned prisoner’s discretion. If no selection is made, which is generally the case, California statute provides that lethal injection is the default. While it is the most common method of execution and lethal injection was initially considered a more “humane” method, it has come under increased scrutiny in recent years culminating in numerous eighth amendment challenges regarding the current three-drug formula (sodium thiopental as an anesthetic, pancuronium bromide as a paralytic agent, and potassium chloride which causes cardiac arrest) used by virtually every jurisdiction and the methods used to administer the drugs.

Why isn’t the process working?

There is actually very little disagreement over the reasons for the lengthy death penalty process in California. Essentially, the initial trial may take a year or more to conclude but the appeal and habeas process can take decades. For example, an individual sentenced to death may wait for as many as 10 years just for the California Supreme Court to review their conviction and sentence on direct appeal. Time frames for the habeas process may be even longer at the federal level.

The cause of this delay is multifaceted but one of the most significant factors is that there are simply not enough “qualified” attorneys to represent these defendants. If we look at the 10 year delay on appeals, roughly half of that time is spent simply waiting for the appointment of counsel. Providing representation to a defendant in these cases requires a very specific skill set and qualifications are regulated by rules of court. This level of experience, when combined with what some deem to be inadequate payment rates, means that there are few attorneys willing, or even able, to take on a death penalty case. This is further exacerbated by the need for separate counsel for the appeal and any habeas petitions.

Delays are further driven by the courts. In the case of the California Supreme Court, it appears that they are simply overwhelmed by the number of cases. However, at the federal level it is unclear why writs may languish for years. In the case of Clarence Ray Allen, the federal court inexplicably needed 12 years to find that Allen’s initial claims were without merit. The time frames of these decisions may be due to the long wait between initial trials and federal review, which makes fact findings much more difficult, but many attribute them to the court themselves. California sits in the Ninth Circuit Court of Appeals which has a reputation for being particularly liberal in its views and has been criticized, and even overturned, in the past for its handling of death penalty cases. Just last year, the Ninth Circuit affirmed the death sentence of Fernando Belmontes in June after vacating it on three separate occasions and each time having the U.S. Supreme Court order the conviction reinstated. In addition, it has the unfortunate distinction among the federal courts of having been reversed three times in one day on various decisions.

Ultimately these substantial delays, in turn, drive costs. According to a recent law review article written by Judge Arthur Alarcon4, the state has spent roughly $4 billion implementing the death penalty since 1978. However, by his estimates, $1 billion of that total is directly related to incarcerating condemned inmates and another $925 million is directly related to automatic appeals. Clearly, these totals are significant and somewhat troubling but if the state were actually executing individuals in a timely manner a large portion of these costs would have been avoided.

Where do we go from here?

Although Judge Alarcon’s journal article and its dire predictions have received significant news coverage recently and even resulted in the introduction of a legislative measure aimed at repealing the death penalty, SB 490 by Senator Hancock (D-Berkeley), a large portion of the information found in the report is not new. The delays, backlog of cases, lack of attorneys and significant costs associated with the death penalty have been issues for years. They all have been identified as problematic in more than a few documents produced by both proponents and opponents over the years. In fact, the California State Habeas Corpus Resource Center was established 13 years ago in an attempt to deal with the lack of attorneys, the California District Attorneys Association r eleased a report in 2003 with potential fixes and in 2008 the California Commission on the Fair Administration of Justice (CCFAJ) released a report detailing nearly the same information.

Even with the abundance of reports and recommendations, the legislature has not readily acted to address these issues. However, this doesn’t mean that some members of the legislature have not tried. In fact, Republican members have introduced no less than 13 bills since 2004 in an attempt to fix various aspects of the system. Yet not a single measure has passed out of committee, including a bill which implemented recommendations of the CCFAJ which was established by the Democrat majority to produce these exact policies.

This leaves us with the current dysfunctional system and the recently introduced legislation aimed at repealing the death penalty. Despite claims by the author that “the death penalty failings cannot be fixed,” and that it is a “costly failure,” there are numerous suggested changes in all the aforementioned reports and dozens of previously introduced bills that would improve the current system. Even the recent journal article that the author relies on for costs estimates proposes four major recommendations to fix the death penalty other than repeal. However, the reality is that some members simply do not support the existence of the death penalty in any form and if it cannot be repealed, they would rather see it remain dysfunctional. Ultimately, if the Democrat members of the legislature are truly concerned about costs, what they should be questioning is the need for an expensive ballot initiative that proposes to repeal a policy supported by 70 percent of voters in this state.


For more information on this report or other Public Safety issues , contact Eric Csizmar, Senate Republican Office of Policy at 916/651-1501.


2 DiCamillo and Field, “Seven in Ten Californians Continue to Support Capital Punishment”, available at (2010)
3 California ’s death sentencing rate is far below the national average, at 10 death sentences per 1,000 homicides. The average for states which employ capital punishment is 36 death sentences per 1,000 homicides. (Source: Scheidegger, Kent. “Death Penalty Review in California: Enlightening Comparisons to Other States,” Journal of the Institute for the Advancement of Criminal Justice, no. 2 (2008): 64-66).
4 Alarcon & Mitchell, “Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion –Dollar Death Penalty Debacle” available at,