Liberate the capital docket by sending it to the Court of Appeal


California Supreme Court
Justice Goodwin H. Liu recently wrote that “the promise of justice in our death
penalty system is a promise that California has been unable to keep.”[1] He’s right. The state has
struggled for decades to resolve the policy debate over capital punishment
after the California Supreme Court banned it in 1972.[2] The electorate reinstated capital
punishment by passing Proposition 17 in 1972;[3] the legislature re-enacted
the death penalty statute in 1977; the electorate expanded its application with
Proposition 7 in 1978; and the voters attempted to accelerate executions by
enacting Proposition 66 in 2016.[4] After forty years of
volleying this issue between various policymakers, the state is no closer to

And now the state faces a
dilemma: while Proposition 66 ordered faster executions, in March 2019 Governor
Gavin Newsom signed an executive order halting executions.[5] This sets up a conflict
that can only be finally resolved by returning to the ballot; indeed, a draft
initiative is currently circulating in the legislature.[6] Since an initiative is likely,
we propose that it divest the California Supreme Court of its exclusive
jurisdiction over capital cases, permitting the Supreme Court to better focus
its limited bandwidth on clarifying the law and safeguarding our constitutional
rights. The Court of Appeal has the institutional competence to handle initial
appeals, and the Supreme Court will retain its discretionary review authority
to address death penalty law as needed.

An initiative amendment could make capital case review non-exclusive to
the California Supreme Court

Considered alone, Governor
Newsom’s executive order is a fine idea. It pauses the capital punishment
system’s one irreversible act of executing condemned inmates while other
solutions are considered. And those solutions are sorely needed: regardless how
one feels about the death penalty’s morals, there is little basis to argue that
the existing system is a success. Yet in such a complex area of the law it is
impossible to consider the executive order in isolation; no one could think
that the order is the final word; and the order cannot hold death penalty
litigation in stasis. Some further action is necessary, and because the death
penalty is permitted by the California constitution (Article I, section 27),
changing that fact requires electorate approval at the ballot.

We assume that, consistent with its
recent past acts, the electorate will vote to keep capital punishment. So we
suggest an alternative: removing the California Supreme Court’s exclusive
capital case jurisdiction. Today, the California Supreme Court must hear every
merits appeal from a death judgment. Only that court may hear those appeals. Otherwise,
Article VI, section 11(a) assigns initial appellate jurisdiction mostly to the
Court of Appeal:

The Supreme Court has appellate jurisdiction when judgment of death has been pronounced. With that exception courts of appeal have appellate jurisdiction when superior courts have original jurisdiction in causes of a type within the appellate jurisdiction of the courts of appeal on June 30, 1995, and in other causes prescribed by statute. When appellate jurisdiction in civil causes is determined by the amount in controversy, the Legislature may change the appellate jurisdiction of the courts of appeal by changing the jurisdictional amount in controversy.

This provision creates a
bottleneck in the state’s capital docket. With just seven justices, the
California Supreme Court has limited resources to process the voluminous files
in dozens of active capital cases — while still deciding other important civil
and non-capital criminal cases. As a blue-ribbon commission reported in 2008,
the state endures “a severe backlog in the review of appeals and habeas
petitions before the California Supreme Court.”[7] Proposition 66 did
little to address this problem, and arguably made it worse by attempting to impose
an arbitrary five-year deadline for resolving capital cases — with no
enforcement mechanism and little guidance.[8] And the bottleneck

Until California arrives at
consensus on this issue (by abolishing the death penalty, improving the
existing system, or something else) removing the California Supreme Court’s
exclusive capital case jurisdiction will improve the current situation. This
can be done with either (or both) of two actions: the electorate can pass an
initiative amendment to make capital cases appealable just as all other cases
are, or one to permit transferring capital cases.

By initiative, the electorate
could strike the first sentence in Article VI, section 11(a), making capital
cases reviewable in the Court of Appeal just like most other cases. The new
section would read:

The Supreme Court has appellate jurisdiction when judgment of death has been pronounced. With that exception cCourts of appeal have appellate jurisdiction when superior courts have original jurisdiction in causes of a type within the appellate jurisdiction of the courts of appeal on June 30, 1995, and in other causes prescribed by statute. When appellate jurisdiction in civil causes is determined by the amount in controversy, the Legislature may change the appellate jurisdiction of the courts of appeal by changing the jurisdictional amount in controversy.

Ending exclusive high court
capital jurisdiction has many advantages. This simple change will end the
capital case logjam by spreading the work of reviewing death judgments among
the appellate districts. Eliminating this provision should improve the speed of
death penalty review and reduce the burden on the Supreme Court, freeing it to
focus its resources on its true purposes: safeguarding constitutional rights,
and ensuring clarity in the law on issues of statewide importance. The high
court would retain its discretionary review power in capital cases under
Article VI, section 12(b): “The Supreme Court may review the decision of a
court of appeal in any cause.” No longer would the high court need to devote pages
to declining to revisit legal arguments advanced by death penalty counsel. With
our proposal, the court can take on novel or important questions as needed
through its discretionary review and leave most of the appellate work to the
Court of Appeal as the institution most prepared to address wide-ranging
appeals on repeat issues.

The need for increased judicial
resources is a possible objection here. But keeping the death penalty requires
more resources regardless of which court has jurisdiction. This was a core flaw
in Proposition 66: it required more work, faster, with no additional resources.
Our proposal at least has the advantage of spreading the same volume of work
among more courts. The 100 appellate justices may well wish for more staff
attorneys if they start receiving some capital cases, but the high court has
made do with its seven justices handling every capital case. And the Supreme
Court’s capital central staff could continue assisting Court of Appeal justices
as needed.

This is not an original idea;
proposals like this have been around for years. So far, the substantial issues
raised by such a change made it just as politically difficult to achieve as a more
complex systemic overhaul. Yet now may be this idea’s time: the voters approved
Proposition 66, which involved many complex changes to the Penal Code. A simple
fix like this may have more voter appeal, and be politically easier to achieve,
than more complex and larger changes.

An initiative amendment could make capital cases transferable

Alternatively, or combined with
our suggestion above, the electorate could make capital cases transferable. Under
Article VI, section 12(a) the California Supreme Court may transfer Court of
Appeal cases: to itself, from itself to the Court of Appeal, or between
appellate districts. But subdivision (d) bars transferring capital cases: “This
section shall not apply to an appeal involving a judgment of death.”

Deleting subdivision (d) would
make capital cases transferable like every other case on the state high court docket.
Even if that court remains vested with exclusive initial appellate
jurisdiction, it may simply transfer some (or all) of its capital cases to the
Court of Appeal. Although this is more procedurally cumbersome than sending
capital cases directly to the intermediate court, this approach may strike a
balance between respecting the gravity of death judgments and the need to
reduce the high court’s burden. This approach also provides the high court with
a first look and opportunity to retain cases that require its immediate
attention. Indeed, the blue-ribbon commission in 2008 endorsed then-Chief
Justice Ronald M. George’s recommendation to amend the state constitution in
exactly this way.[9]

There is a concern that this
solution will permit the defense bar to pursue a strategy of repeating
arguments across the intermediate courts, resulting in conflicting decisions or
a net increase in work for the state judiciary. This concern is unmerited. The
California judiciary is already structured with mechanisms (review petitions,
grant and hold, depublication) to avoid and resolve those conflicts. And it
takes little judicial effort to decline to revisit repetitive legal arguments
advanced by death penalty counsel: courts already commonly decline to revisit
arguments decided in previous cases.

The chief benefit of transferring
capital cases to the Court of Appeal is that it spreads the work around. Untangling
new variants on appellate arguments is easier when they are spread across the
whole appellate judiciary and not exhausting only the California Supreme
Court’s time. Ultimately, the high court can always weigh in to sort out thorny
issues, using discretionary review to take on novel or important questions as

A third option permits the legislature to act without the electorate

There is another, more aggressive
strategy: amending the statutes that authorize charging capital cases to remove
that authority, a legislative act that would not require voter approval. The
proposal to distribute capital appeal litigation in the Court of Appeal is a
middle ground, compromise solution that presumes capital punishment remains
constitutionally permitted in California. And it will remain so, absent a
change to Article I, section 27, which provides:

All statutes of this State in effect on February 17, 1972, requiring, authorizing, imposing, or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative, or referendum. [¶] The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.

Yet section 27 merely validates
the death penalty as a permissible type of punishment under the California constitution.[10]
It does not require imposing that penalty. Instead, section 27 was intended
only to cancel the decision in People v.
(1972) 6 Cal.3d 628 (holding death an impermissibly cruel
punishment) and to clarify that capital punishment violates no provision of the
California constitution.[11]
The authority to charge capital cases relies on the statutes that section 27
says are constitutional.

Those statutes are, as always,
subject to amendment or repeal at the legislature’s sole discretion. Section 27
itself acknowledges that such statutes are “subject to legislative amendment or
repeal by statute, initiative, or referendum.” For example, capital punishment
is presently authorized by Penal Code section 190.2(a): “The penalty for a
defendant who is found guilty of murder in the first degree is death or
imprisonment in the state prison for life without the possibility of parole if
one or more of the following special circumstances has been found under Section
190.4 to be true.” The legislature only needs to amend section 190.2(a) to
remove “death or” to prevent any state prosecutor from charging new capital cases
under that statute. And the legislature could give the change retroactive

The legislature has already
started the ball rolling on a variant of this idea. Assembly Constitutional
Amendment 12, introduced on March 13, 2019, would amend the California constitution
to delete Article I, section 27 “and instead would prohibit the death penalty
from being imposed as a punishment for any violation of law.”[13] This is one solution to
our point that abolishing capital punishment requires removing its
authorization in the state constitution, which must be presented to the
electorate. But an amendment to section 190.2(a) is a statutory act well within
the legislature’s power that need not be presented to the electorate. The end
result is that section 27 remains in place and still permits capital punishment,
but the statute that provides for charging capital cases no longer exists — all
without the need for an initiative amendment.


Some further step beyond the
execution moratorium is necessary. The executive order does nothing to relieve the
California Supreme Court’s burden. Absent statutory or constitutional changes,
the judicial branch must continue processing death penalty cases, assigning
capital counsel, and reviewing capital appeals even if a governor freezes the system
at the execution end. Proposition 66 requires the courts to proceed with death
cases, and every pending capital appeal remains a live action because the death
sentences themselves are untouched. The Superior Court will continue to bear
the expense of holding death penalty trials, and the California Supreme Court —
bound by Proposition 66 — must attempt to meet the “directive rather than
mandatory” five-year timeline for judicial review without any additional
resources to do so.[14]

Facing that reality, the legislature
is weighing initiative amendments for the 2020 ballot. And citizen initiative
amendments likely will also be proposed, setting up a repeat of the competing
2016 proposals: Proposition 66 (which passed) and Proposition 62, which would
have repealed the death penalty but failed at the ballot. Our proposals deserve
consideration because they offer paths that will help the judiciary better
achieve justice if the death penalty remains a constitutional option. Two of these
proposals will further the electorate’s intent (expressed in Proposition 66 in
2016) to expedite capital litigation. The third proposal could permit the legislature
to functionally resolve the death penalty question without repeated ballot fights.
Any of these proposals will permit the Supreme Court to focus its limited
bandwidth on clarifying the law for the entire state and safeguarding our
constitutional rights. Short of an electorate decision to end capital
punishment, these proposals can effect large improvements.

Capital punishment has always
been presented to the voters as a binary choice: keep it or ban it. No one
knows what the electorate will do when the death penalty next appears on the
ballot. Yet past ballot results show the voters consistently rejecting a
capital punishment ban. That past may be prologue. In a Public Policy Institute
of California poll released March 28, 2019, just 38% of likely voters favored
the death penalty when asked whether someone convicted of first-degree murder
should get a death sentence or life in prison with no possibility of parole.
But those voters opposed the governor’s death penalty moratorium by a narrow
46–44% margin. Our suggestions are a middle path alternative to quixotically
presenting the electorate with the same opportunity to ban capital punishment
that they have repeatedly declined.

Senior Research Fellow Brandon V. Stracener contributed to this article. With thanks to our colleague David A. Kaiser for his assistance.

[1] People v.

[2] People v.
(1972) at 657.

[3] People v.
(1979); Cal. Const., art.
I, § 27.

[4] Briggs v.
(2017) at 822.

[5] Governor’s Exec. Order No. N-09-19 (Mar. 13, 2019).

[6] Assem. Const. Amend. No. 12 (2019–2020 Reg. Sess.).

[7] Potts (2016), supra
note 1 (conc. opn. of Liu, J.) citing Cal.
Com. on the Fair Admin. of Justice, Final Report
(2008) at 111, 114–115.

[8] The Supreme Court concluded the five-year limit on
judicial review of death penalty cases was not a mandatory limit. Briggs (2017), supra note
4, at 857. The alternative would have been declaring that provision
unconstitutional. Id. at 862 (conc.
opn. of Liu, J.); Id. at 872–73 (conc.
& dis. opn. of Cuéllar, J.).

[9] Commission
, supra note 7, at 147–48.
The report did note that its proposal should advance only if accompanied by additional

[10] Frierson
at 186.

[11] People v. Ramos (1984) at 152 n.6,
citing People v. Super. Court (Engert) (1982)
at 808.

[12] “The Legislature ordinarily makes laws that will
apply to events that will occur in the future. Accordingly, there is a
presumption that laws apply prospectively rather than retroactively. But this
presumption against retroactivity is a canon of statutory interpretation rather
than a constitutional mandate. Therefore, the Legislature can ordinarily enact
laws that apply retroactively, either explicitly or by implication.” People v. Super. Court (Lara) (2018)
at 307 (citation and quotation omitted). “The Legislature may define the
meaning of statutory language by a present legislative enactment which, subject
to constitutional restraints, it may deem retroactive.” McLung v. Employment Development Dept.
at 433.

[13] Assem. Const. Amend. No. 12 (2019–2020 Reg. Sess.), supra note 6.

[14] See, for example, Justice Liu’s Potts
concurrence, supra note 1, and the
2008 Commission Report, both noting the never-implemented recommendations for increasing
the Office of the State Public Defender budget by one-third, increasing private
attorney compensation for taking on capital cases, and dramatically expanding
the Habeas Corpus Resource Center. The “directive rather than mandatory”
language comes from Justice Corrigan’s opinion in Briggs, supra note
4, at 823.