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.