California Penal Code Committee Recommends Repealing State’s Death Penalty

The Committee on Revision of the Penal Code, created by the California state legislature to review the state’s criminal laws, has issued a report unanimously recommending that the state repeal its death penalty. The six-member committee’s 39-page Death Penalty Report, released November 17, 2021, also offers intermediate recommendations for reducing the size of California’s nearly 700-person death row—the largest of any state in the country.

“After a thorough examination, the Committee has determined that the death penalty as created and enforced in California has not and cannot ensure justice and fairness for all Californians,” the report states. “More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme. It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.”

The report pointed to “disturbing racial disparities” and geographic arbitrariness as part of the system’s inability to limit the death penalty to the worst of the worst offenders. “People of color currently make up 68% of death row,” the committee wrote. “At least a third of people currently condemned to death have been diagnosed with serious mental illness and 6 of them may be permanently incompetent.” The report further noted that “a handful of counties account for the majority of the recent death sentences imposed in the state.”

In addition, the committee reported that five prisoners of color in California have been exonerated and freed after having been wrongly convicted and sentenced to death — part of 185 (now 186) wrongfully condemned exonerees across the country. At the same time, efforts to speed up the appeals process by limiting the time for state appeals and the substance of federal review have “failed to accomplish their stated goals and may have made things even worse.”

“California has spent more than 4 billion tax dollars on the death penalty since it was reinstated in 1977,” the report said.

Reviewing these facts, the committee “unanimously conclude[d] that California’s system for capital punishment is beyond repair. California should abolish the death penalty and death row should be dismantled,” it wrote.

In July 2014, a federal judge described California’s death-penalty system as suffering from “inordinate and unpredictable … systemic delay” that has transformed capital punishment into a penalty “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.” “In 2008, the capital case post-conviction review process took an average of 22 years,” the committee wrote. “Today, it’s more than 30 years … [and] costs taxpayers $150 million a year.”

The committee criticized Proposition 66, the voter initiative promoted by death-penalty proponents as a means to speed up judicial review of capital cases, saying that, more than four years after its passage, ”costs have increased, just as many people on death row remain in need of post-conviction lawyers and delays in cases have continued to grow.”

Interim Recommendations to Reduce the Size of Death Row

Recognizing the difficulty of repealing the death penalty, the committee offered a series of interim recommendations, each unanimously approved, to reduce the size of California’s death row.

The committee first recommended that the executive and judicial branches more aggressively employ their clemency powers. Governor Newsom, the committee said, “should use his executive clemency power … by commuting death sentences.” In cases in which a death-row prisoner has a prior felony conviction, the approval of the California Supreme Court is also required to commute a death sentence, and the committee urged the court to “promptly adjudicate clemency petitions” in those cases.

The committee also urged prosecutors to take affirmative steps to reduce the size of death row. In a rebuke to the pro-death-penalty Criminal Justice Legal Foundation, which has accused Attorney General Rob Bonta and Los Angeles District Attorney George Gascòn of “colluding” to overturn death sentences, the penal reform committee said “the Attorney General should take a more proactive approach” to settle death penalty cases that are pending in state post-conviction review. It also recommended that local district attorneys, who have the authority under California law to request that a death-penalty case be recalled to the trial court for resentencing, use this process “to pursue resentencing of death cases from their counties.”

On November 5, Bonta filed notices of withdrawal in four Los Angeles capital post-conviction cases, allowing the Los Angeles District Attorney’s office to concede the prisoner’s entitlement to resentencing. In each case, the court resentenced the prisoner to life without parole. The Orange County Register reports that Bonta has filed notices of withdrawal in at least 20 other capital habeas corpus cases from Los Angeles.

The report also recommends legislative action to limit the reach of the state’s death-penalty statute and to retroactively remove prisoners from death row. It urges the legislature to “reverse the expansion of the felony-murder special circumstance” enacted by voters through Proposition 115 in 1990, which the committee said “allows people to be sentenced to death even if they did not personally kill or intend anyone to die,” and apply the new law to those currently on death row. It further recommended that the legislature undo another portion of Proposition 115 that withdrew from trial judges the discretion to dismiss special circumstances that make a prisoner eligible for the death penalty, after the jury has found the circumstance to be present in the case.

Other legislation recommendations include making the California Racial Justice Act of 2020 retroactive, to redress racial bias and racially discriminatory practices in cases in which prisoners have already been sentenced to death, and removing the permanently incompetent from death row. According to the report, at least 6 people remain on death row even though their deteriorated mental state makes them constitutionally ineligible for execution.