Recent Legislative Activity

Former California Officials File Taxpayer's Suit Against Proposition 66

California death penalty opponents filed a taxpayer suit on November 9 to block Proposition 66—the ballot initiative promoted as speeding up the state's execution process—from going into effect. The suit was filed by former El Dorado County supervisor Ron Briggs (pictured)—who co-authored the measure to reinstate California's death penalty in 1978—and former California Attorney General John van de Camp. California voters narrowly approved Proposition 66, which was written by prosecutors, by a vote of 50.9%-49.1%. The proposition makes a number of changes to state death penalty appeals procedures, including 5-year time limits for the state Supreme Court to rule on appeals, shortening filing deadlines, transferring the initial consideration of death penalty appeals from the appellate courts to the trial courts, and requiring lawyers to take on death penalty appeals if they wish to keep court appointments for other criminal appeals. The lawsuit argues that these measures would “impair the courts’ exercise of discretion, as well as the courts’ ability to act in fairness to the litigants before them” and raises concerns that death row inmates will be assigned lawyers “who do not currently meet the qualification standards.” Briggs was particularly critical of a new provision that requires initial appeals to be heard by the trial court: "What 66 is saying is we are going to keep the case in the lower court, and those same eyes that convicted the defendant are going to review the appeal. We believe that infringes on the constitution and is flat out not fair." The lawsuit challenges Proposition 66 on three separate legal grounds. It argues that the proposition "illegally interferes with the jurisdiction of California's state courts" by revoking the authority conferred by the state constitution for California's appellate courts to hear capital habeas corpus cases and violates the state constitution's separation of powers by "materially impair[ing]" the courts' power to resolve capital appeals. It also argues that Proposition 66 violated the state constitutional requirement that "an initiative measure may not embrace more than one subject." In addition to the expressed purpose of "death penalty reform," Proposition 66 included provisions for victim compensation, changes in the state's Administrative Procedures Act governing the adoption of administrative regulations, and disbanding the unpaid Board of Directors that governs the state's institutional capital defender organization.

Voters Oust Prosecutors in Outlier Death Penalty Counties, Retain Governors Who Halted Executions

Prosecutors in three counties known for their outlier practices on the death penalty were defeated by challengers running on reform platforms, while voters in Oregon and Washington re-elected governors who acted to halt executions. In Hillsborough County, Florida, Democrat Andrew Warren defeated Republican incumbent Mark Ober (pictured, l.). Warren pledged to seek the death penalty less often and establish a unit to uncover wrongful convictions. In Harris County, Texas, incumbent Devon Anderson (pictured, r.) was defeated by Democratic challenger Kim Ogg. Ogg ran on a platform of broad criminal justice reform and had received support from the Black Lives Matter movement. Harris County leads the nation in executions and is second only to Los Angeles in the number of people on its death row. Ogg had said that the death penalty had created "a terrible image for our city and our county" and pledged that, "[u]nder an Ogg admninistration, you will see very few death penalty prosecutions." Brandon Falls, District Attorney of Jefferson County, Alabama, lost his seat to Charles Todd Henderson, who does not support the death penalty and said he plans to “bring about real criminal justice reform.” Hillsborough, Harris, and Jefferson all rank among the 2% of U.S. counties responsible for a majority of death row inmates in the U.S., and were among the 16 most prolific death sentencing counties in the U.S. between 2010-2015. “People are scrutinizing their local criminal justice systems, and people are realizing how much power state attorneys have, and they are seeing elections as a way to change those results,” Deborrah Brodsky, director of the Project on Accountable Justice at Florida State University, said. In gubernatorial elections, voters re-elected governors who had halted executions in their states. Washington voters re-elected Governor Jay Inslee, who imposed a death penalty moratorium, and Oregon voters gave a full term to Governor Kate Brown, who had extended her predecessor's moratorium and pledged to keep the moratorium in effect if elected. In North Carolina, voters defeated incumbent Governor Pat McCrory, who had supported efforts to repeal the state's Racial Justice Act. 

Pro-Death Penalty Referenda Prevail in 3 States; Kansas Retains 4 Justices Attacked for Death Penalty Decisions

Voters in three states approved pro-death penalty ballot questions Tuesday, while in a fourth, voters turned back an effort to oust four Justices who had been criticized for granting defendants relief in capital cases. Amid widespread agreement that California's death penalty system is broken, the state's voters rejected Proposition 62, which would have abolished the state's death penalty and replaced it with life without possibility of parole plus restitution, and narrowly approved a competing ballot initiative, Proposition 66, which seeks to limit state court death penalty appeals and expedite executions. With 99% of precincts reporting, Prop 62 trailed 54%-46%, with 3,964,862 Yes votes and 4,643,413 No votes. Prop 66 prevailed 51%-49%, with 4,203,801 Yes votes and 4,051,749 No votes. Earlier in the day, Nebraska voters, in a closely watched referendum, overturned the state legislature's repeal of the state's capital punishment statute and reinstated the death penalty. With 99% percent of precincts reporting, Nebraskans voted in favor of the death penalty by a margin of 61%-39%, casting 443,506 "repeal" votes on Referendum 426 to overturn the legislature's abolition of the death penalty, against 280,587 "retain" votes to keep the legislative repeal in place. Wednesday morning, Governor Pete Ricketts pledged to take action to carry out executions in Nebraska, while long-time death penalty opponent, State Senator Ernie Chambers, vowed to introduce a new bill in the next legislative session to abolish capital punishment. In Oklahoma, voters by a nearly 2-1 margin approved State Question 776, which constitutionalizes the state legislature's power to adopt any execution method not prohibited by the U.S. Constitution and prevents Oklahoma's state courts from declaring the death penalty cruel and unusual punishment. With 100% of precincts reporting, Question 776 prevailed 66%-34%, with 941,336 Yes votes and 477,057 No votes. The death penalty was also a central focus in judicial retention elections in Kansas, where pro-death penalty groups targeted four justices of the state supreme court and spent more than $1 million in an attempt to oust them for their votes overturning several Kansas death sentences. Voters retained all four Justices. Chief Justice Lawton Nuss, speaking on behalf of the challenged justices, said "The supreme court’s ability to make decisions based on the rule of law—and the people’s constitution—has been preserved." Ryan Wright of Kansans for Fair Courts, which opposed the efforts to remove the Justices, added “Kansans have sent a very clear message . . . : hands off our court.” 

EDITORIALS: Lincoln Journal Star Urges Nebraska Voters to End State's Death Penalty

Saying the death penalty is "too fallible to endure," the Lincoln Journal Star has called on Nebraska voters to end capital punishment in the state. In two editorials published in connection with the upcoming statewide death penalty ballot referendum on November 8, the paper urged Nebraskans to retain the legislature's death penalty repeal bill. The predominantly Republican legislature voted to repeal the state's death penalty in May 2015 and then, a few days later, overrode a veto by Governor Pete Ricketts. The Governor, in turn, launched a successful petition drive to place the repeal issue on the ballot. The Journal Star's first editorial focused on the "bottom line" question that, "[t]o support the death penalty, you must be willing to take the chance that the state will execute an innocent person." In addressing that question, the paper highlighted notable exonerations from Beatrice, Nebraska and elsewhere. The editorial explained that, in the largest false confession case in American history, "[t]he 'Beatrice 6' were railroaded into prison for a murder they did not commit. Finally DNA showed someone else committed the crime. Now Gage County is on the hook for $28.1 million in damages." The paper also discussed the exoneration of former Air Force sergeant Ray Krone, who—with no criminal record—was wrongfully convicted and sentenced to death in Arizona. "If it happened to Krone," the paper said, “it can happen to anybody.” In a second editorial, the Journal Star presented what it called the "powerful" conservative argument against capital punishment. The death penalty, conservatives say, "is an extraordinary example of government overreach that costs inordinate amounts of money," violates "the sanctity of life," "[s]ometimes ... delivers erroneous results, and for years on end it delivers no results at all." A recent study found that the death penalty costs Nebraska taxpayers $14.6 million per year, even though the state has not had an execution in nearly 20 years. The paper said: "All this spending siphons away money that could and should be put to use more effectively in protecting public safety. Five hundred police chiefs were asked in 1995 and 2008 to rank the tools they found most effective in fighting violent crime, [former Lincoln Police Chief Allen] Curtis wrote. 'The death penalty came in absolutely last.'" The editorial concluded, "[t]houghtful conservatives who take the time to research the issue will vote on Nov. 8 to retain the law that eliminates the death penalty and replaces it with life in prison."

Florida Supreme Court Strikes Down State's Capital Sentencing Statute, Requires Jury Unanimity Before Imposing Death

The Florida Supreme Court has declared unconstitutional the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendation for death. In two rulings issued October 14 the court held that juries must unanimously find all facts necessary to impose a death sentence, including the existence of any aggravating factor relied upon as a reason to impose the death penalty, whether the aggravating factors in and of themselves provide sufficient grounds for imposing the death penalty, and whether the aggravating factors outweigh the mitigating circumstances (reasons for life) presented by the defense. In the first case, Timothy Lee Hurst v. State of Florida, the court vacated Hurst's death sentence imposed and remanded his case for a new sentencing hearing. The second decision, Larry Darnell Perry v. State of Florida, struck down the Florida legislature's March 2016 revision of the state’s capital sentencing statute because it does not require a unanimous jury recommendation of death before the trial judge can consider imposing a death sentence. Hurst is the same defendant whose appeal reached the U.S. Supreme Court earlier this year, resulting in an 8-1 decision declaring that the state's prior capital sentencing statute violated the 6th Amendment right to a jury trial by reserving for the judge, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. The Court specifically held that the statute impermissibly denied Hurst a jury finding of aggravating circumstances that could make him eligible for the death penalty. In response to the Court's decision, the Florida legislature amended the statute to require juries to unanimously find at least one aggravating circumstance, but allowed the jury to recommend a death sentence if at least 10 of 12 jurors agreed. The court’s decision in Hurst made clear that the statute violated Florida state constitutional provisions requiring unanimous jury verdicts, as well as federal constitutional law. In Perry, the court struck down the amended death penalty law, saying the statute "cannot be applied constitutionally to pending prosecutions because the Act does not require unanimity in the jury’s final recommendation as to whether the defendant should be sentenced to death." While the decision in Hurst says that defendants sentenced to death under the unconstitutional sentencing procedures are not entitled to have their sentences automatically reduced to life in prison, it leaves unclear exactly what will happen in the cases of the approximately 400 people on the state's death row.

EDITORIALS: California Newspapers Overwhelmingly Support Ballot Initiative to Abolish Death Penalty

Newspaper editorial boards in California are overwhelmingly supporting a November ballot initiative to abolish the state's death penalty and replace it with life without parole plus restitution, and are uniformly rejecting an opposing initiative that purports to speed up the appeals process. At least eight California newspapers have published editorials supporting Proposition 62 and opposing Proposition 66, and Ballotpedia reports that it is aware of no editorial boards that have supported Proposition 66. A Los Angeles Times editorial characterizes the death penalty as "both immoral and inhumane," adding, "[e]ven those who do not object to capital punishment on principle ought to support abolition because of the system’s inefficiency, exorbitant costs and long delays. Proponents of Proposition 66 say they can speed up the process and make the death penalty work, but there are serious doubts that their proposal would achieve the kind of fast-tracking they promise, and critics argue persuasively that the system might become even more expensive." The San Francisco Chronicle writes that "all sides agree [California's death penalty] has produced enormous legal bills, no semblance of deterrence to would-be murderers and too little justice to victims’ loved ones over the past four decades." It says Prop. 62 "offers a straightforward and certain solution," while criticizing Prop. 66 as "a highly complex, probably very expensive and constitutionally questionable scheme for streamlining the appeals process." Many of the editorials are particularly critical of Prop. 66's proposal to conscript appellate lawyers to represent death row inmates. The (Santa Rosa) Press Democrat's critique is representative: "Rather than funding an expansion of the state public defender’s office, which handles almost all death penalty appeals, Proposition 66 would require all attorneys who practice in California appellate courts, regardless of specialty and training, to accept judicial appointments to capital cases. Claims of inattentive and incompetent counsel already are common in death penalty appeals, and conscripting lawyers would only invite more such challenges." The Bakersfield Californian, which offered no opinion on Prop. 34, California's prior ballot initiative to abolish the death penalty, has also weighed in on the death penalty this year, calling for an end to the state's "costly, toothless death penalty." Other newspapers urging voters to vote yes on Prop. 62 and no on Prop. 66 included Monterey Herald, the Bay Area News Group (Mercury News and East Bay Times), and the Santa Clarita Valley Signal. [UPDATE: Additional editorial boards have come out in favor of Proposition 62 and against Proposition 66 (see below). To date, we are unaware of any editorial support for Proposition 66.]

Delaware Attorney General Will Not Appeal Decision Striking Down Death Penalty Statute

Delaware Attorney General Matt Denn (pictured) announced on August 15 that his office will not appeal the Delaware Supreme Court's August 2 decision in Benjamin Rauf v. State of Delaware, which struck down the state's death penalty statute. In Rauf, the court found that Delaware's capital sentencing scheme violated the Sixth Amendment, as interpreted by the U.S. Supreme Court in Hurst v. Florida, by granting judges, rather than juries, the ultimate power to decide whether the prosecution had proven all facts necessary to impose the death penalty. Delaware's statute had not required a unanimous jury determination of all aggravating circumstances that were considered in sentencing a defendant to death or a unanimous jury finding that those reasons for death outweighed mitigating circumstances. The Rauf decision intensifies the national spotlight on Alabama and Florida as the only states that still permit judges to impose death sentences after non-unanimous jury recommendations for death and on Alabama as the only remaining state to permit a judge to override a jury's life verdict. The statement of the attorney general's office said Denn "has concluded that even if the United States Supreme Court reversed the opinion on Federal Constitutional grounds, ... the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on the Constitution of the State of Delaware." Litigating those issues, he said, "would likely take years" and "would likely not only bring about the same result, but would also deny the families of victims sentencing finality." The statement indicated that state prosecutors would challenge the application of Rauf to the thirteen prisoners currently on Delaware's death row, leaving their status uncertain. For future cases, legislative action is now the only route to reinstating the death penalty in Delaware. Such action seems unlikely, given that it must be approved by both houses of the legislature and by the Governor. However, death penalty abolition bills passed the state Senate in 2013 and 2015, and narrowly failed in the House earlier this year, and Governor Jack Markell has expressed support for abolishing the death penalty and "applaud[ed] the Supreme Court's finding that the state's death penalty law is unconstitutional."

Delaware Supreme Court Declares State's Death Penalty Unconstitutional

The Delaware Supreme Court on August 2 declared the state's capital sentencing procedures unconstitutional, leaving Delaware without a valid death penalty statute. In the case of Benjamin Rauf v. State of Delaware, the court held that Delaware's death sentencing procedures violate the constitutional principles recently set forth by the U.S. Supreme Court's January 2016 decision in Hurst v. Florida. Hurst stated that a capital defendant's Sixth Amendment right to trial by jury requires "a jury, not a judge, to find each fact necessary to impose a sentence of death." Four members of the Delaware high court ruled that the state's capital sentencing statute unconstitutionally empowers judges, rather than jurors, to decide whether the prosecution has proven the existence of aggravating circumstances that are considered in determining whether to impose for the death penalty. They wrote that the jury must unanimously find those facts to have been proven beyond a reasonable doubt before a death sentence may be considered. In an opinion by Chief Justice Leo Strine, Jr., a narrower 3-justice majority of the court also ruled that the facts necessary to impose a death penalty in Delaware included a finding that aggravating circumstances outweigh mitigating circumstances (reasons to spare the defendant's life). Delaware's statute violates the Sixth Amendment, they wrote, because it does not require as a prerequisite to the death penalty that jurors unanimously agree that aggravating circumstances outweigh mitigation beyond a reasonable doubt. The court said the unconstitutional sentencing provisions were inseverable from the rest of the death penalty statute, and that any changes to the statute would have to be made by the legislature. However, recent legislative activity suggests that a bill restoring the state's ability to impose death sentences may have difficulty passing. Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell has indicated that he would sign a bill to abolish capital punishment if it passed the legislature. Such a bill passed the state Senate in 2013 and 2015 and was released by the House Judiciary Committee for consideration by the full House, where it narrowly failed earlier this year. Professor Eric Freedman, a death penalty expert at the Hofstra University School of Law, said "[t]his probably means, as a practical matter, the end of the death penalty in Delaware."

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