In a 5 – 2 deci­sion that left both pro­po­nents and oppo­nents of the death penal­ty declar­ing vic­to­ry, the Supreme Court of California has upheld the con­sti­tu­tion­al­i­ty of Proposition 66, a vot­er ini­tia­tive intend­ed to speed up death-penal­ty appeals and exe­cu­tions, but severe­ly lim­it­ed the scope of its core pro­vi­sions. In Briggs v. Brown, the court on August 24 sus­tained por­tions of the mea­sure that shift­ed which court will hear cap­i­tal cas­es, increased the pool of death-penal­ty appeal lawyers by requir­ing lawyers who accept oth­er appel­late appoint­ments to also take cap­i­tal cas­es, elim­i­nat­ed pub­lic review of exe­cu­tion meth­ods, and lim­it­ed both the issues that can be raised in cap­i­tal habeas appeals and the time courts have to decide them. However, the major­i­ty ruled that the measure’s flag­ship pro­vi­sion — a five-year dead­line on appeals by con­demned pris­on­ers — was ​“direc­tive, rather than manda­to­ry”; that ​“courts must make indi­vid­u­al­ized deci­sions based on the cir­cum­stances of each case”; and that ​“pris­on­ers may seek to chal­lenge [the time lim­i­ta­tions and lim­i­ta­tion on the claims they are per­mit­ted to raise] in the con­text of their indi­vid­ual cas­es.” Kent Scheidegger, legal direc­tor of the pro-death penal­ty Criminal Justice Legal Foundation, who argued in sup­port of Proposition 66 in the California Supreme Court, laud­ed the deci­sion, say­ing that ​“Proposition 66 will go into effect almost entire­ly as writ­ten.” He called the time lim­its for decid­ing appeals a ​“minor part” of the propo­si­tion. Scheidegger said ​“Californians final­ly have a chance to see jus­tice car­ried out in the very worst mur­der cas­es.” Death penal­ty oppo­nents sharply dis­agreed with his char­ac­ter­i­za­tion. Ana Zamora, crim­i­nal jus­tice pol­i­cy direc­tor for the ACLU of Northern California, said ​“Today’s deci­sion changes noth­ing. The fact remains that California has not car­ried out an exe­cu­tion in over 10 years and exe­cu­tions will not resume any time soon.” Christina Von der Ahe Rayburn, who argued the case against the propo­si­tion, said the rul­ing had ren­dered the dead­lines in Proposition 66 ​“tooth­less,” allow­ing courts to con­tin­ue to per­form their ​“crit­i­cal role in care­ful­ly review­ing the appeals of the state’s death row inmates, in order to avoid the exe­cu­tion of an inno­cent per­son.” The jus­tices ques­tioned the effi­ca­cy of the propo­si­tion and whether it could accom­plish its stat­ed aims. ​“We do not con­sid­er or weigh the eco­nom­ic or social wis­dom or gen­er­al pro­pri­ety of the ini­tia­tive,” the court wrote. ​“It remains to be seen how effec­tive the pro­ce­dures enact­ed by Proposition 66 will be in expe­dit­ing the cap­i­tal post­tri­al review process.” Justice Goodwin Liu, con­cur­ring in the court’s deci­sion, wrote ​“I find it stun­ning that Proposition 66’s pro­po­nents and the Attorney General claim that the vot­ers intend­ed the five-year lim­it to be non­bind­ing or aspi­ra­tional when that claim is plain­ly belied by the bal­lot mate­ri­als and advo­ca­cy cam­paign for Proposition 66.” He said ​“Proposition 66 con­tains no plan to com­press into five years a process that often takes two decades, and no enti­ty – not this court, not the Judicial Council, not the Legislature – can sim­ply wave a mag­ic wand and make it so.” Santa Clara University law pro­fes­sor Gerald Uelmen, who served as exec­u­tive direc­tor of a state sen­ate com­mis­sion that under­took a com­pre­hen­sive review of the state’s death penal­ty in 2008, said sev­er­al of the pro­vi­sions in Proposition 66 may actu­al­ly increase delays in decid­ing death penal­ty cas­es. ​“It is just going to bog­gle up the sys­tem even more,” he said.

In dis­sent, Justice Mariano-Florentino Cuéllar said the court should have declared the dead­line for decid­ing appeals uncon­sti­tu­tion­al rather than rein­ter­pret­ing and ​“neu­ter­ing” the ini­tia­tive. ​“What vot­ers most need so they can exer­cise their con­sti­tu­tion­al­ly pro­tect­ed fran­chise effec­tive­ly is clar­i­ty and can­dor,” he wrote. ​“The bal­lot pam­phlet told vot­ers, in type­face as con­spic­u­ous as it was emphat­ic, that this pro­vi­sion ​‘Requires Completion of Direct Appeal and Habeas Corpus Petition Process Within Five Years.’ … With the afore­men­tioned pro­vi­sions at the heart of the ini­tia­tive — and no doubt influ­enced by promis­es made in the Voter Guide — vot­ers nar­row­ly enact­ed Proposition 66.” 

(S. Thanawala, B. Melley, ​“California death penal­ty mea­sure sur­vives, but with lim­its,” Assosciated Press, August 24, 2017; A. Koseff, A. Ashton, ​“Supreme Court upholds law to speed up exe­cu­tions in California, but relax­es dead­lines,” The Sacramento Bee, August 24, 2017; M. Dolan, ​“Executions could resume after California Supreme Court leaves most of Proposition 66 intact,” Los Angeles Times, August 24, 2017. Read the California Supreme Court’s deci­sion in Briggs v. Brown, No. S238309 (Cal. Aug. 24, 2017). See California, Representation, and Arbitrariness.

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