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Reform death penalty appeals

Allowing state appellate courts to review cases would help ease a huge backlog.

January 07, 2008|Ronald M. George | Ronald M. George is chief justice of California.

Thoughtful individuals on both sides of the death penalty debate should be able to agree on one thing: The existing system for handling capital appeals in California is dysfunctional and needs reform. The state has more than 650 inmates on death row, and the backlog is growing.

Recently, my colleagues and I proposed a state constitutional amendment that would address part of the problem by permitting death penalty appeals to be heard by the state appellate courts -- with subsequent review by the state Supreme Court. Under the current system, death penalty appeals (unlike all other cases) are overseen exclusively by the Supreme Court.

Without change, the result is clear: We will have a malfunctioning death penalty system, a state Supreme Court increasingly unable to fulfill its essential role in our governmental system -- or both. Already, the seven justices of the California Supreme Court no longer can handle the state's entire death penalty appeal workload while at the same time fulfilling the court's primary purpose: to consider the 9,000 to 10,000 petitions it receives annually and to hear those cases requiring the resolution of legal issues of statewide importance. Death penalty appeals, of course, are very significant, but they are only one part of the work of the state's highest court.

California's Supreme Court issues 110 to 115 opinions annually, almost twice as many as the U.S. Supreme Court. Typically, these include more than 20 capital appeals. (Another 30 capital-case-related habeas corpus matters also are disposed of each year.) Yet this is only a small portion of the cases that are awaiting our attention. At the moment, nearly 400 capital appeals are pending before the court, about 80 of which are fully briefed and ready for oral argument and decision. About 130 non-death-penalty cases presenting important civil and criminal issues also are pending, 80 of them fully briefed, and the court selects additional cases for review at almost every weekly conference. Only if the state Supreme Court were to defer these other cases could it more quickly address the backlog of capital appeals -- and even then, new death penalty appeals and new legal issues requiring review would continue to pour into the system.

In short, the limited judicial resources of the Supreme Court create a bottleneck that, if the system is not reformed, guarantees years of delay not only in capital cases but in the development of California's law in a rapidly changing world.

Many interests are affected by this. The public, including the families and friends of victims and of those convicted, has a keen interest in finality and enforcement of the law. Unnecessary delay in death penalty cases frustrates the prosecution and the defense, as well as those people and institutions awaiting guidance from the high court's decisions in civil and noncapital criminal cases. Moreover, when a reversal occurs long after judgment, and a retrial is necessary, memories may have faded and witnesses often are unavailable.

The proposed constitutional amendment would continue to require that all death penalty appeals be filed in the state Supreme Court, but would allow the court to spread the capital case workload by transferring some of these cases to the 105 justices who serve in the state's six appellate court districts. The Courts of Appeal now have available almost 30 years of U.S. and California Supreme Court decisions settling the vast majority of issues raised by the reinstatement of the death penalty. Our proposal guarantees that the state Supreme Court will not allow any affirmance or reversal by those appellate court justices to stand unless the state Supreme Court concludes the result is legally correct. Moreover, if any significant legal issues or conflicts in the law arise, the state Supreme Court would agree to review the case, as the court does in all other matters.

This plan guarantees significantly more high court review of capital cases than occurs under the federal death penalty system, in which the intermediate appeals court has the final word in almost every case.

Because we would have a larger pool of justices working on capital cases than we have now, these cases could be heard more quickly and be completed sooner, even with subsequent Supreme Court review. Moreover, the plan also would allow the Supreme Court to direct its attention to the most substantial issues in each capital case with the benefit of the Court of Appeal's opinion and the parties' responses.

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