Executions in California were carried out in the gas chamberat San Quentin State Prison. It was modified for the use oflethal injection, but has been returned to its original state, with the creation of a new chamber specifically for lethal injection.

Capital punishment is a form of punishment in the U.S. state of California. It was declared unconstitutional by a federal judge in California (Jones v. Chappell) on July 16, 2014.^[1] The state of California is believed likely to appeal the decision to the Ninth Circuit Court of Appeals.^[2]

The first recorded death sentence in the area that is now California took place in 1778 when four Native Americans were sentenced to be shot in the Presidio of San Diego forconspiracy to commit murder.^[3][4] Since this time, 709 executions took place before the California Supreme Court decision in People v. Anderson finding the death penalty to violate the state constitution, and the later Furman v. Georgia decision of the United States Supreme Court finding executions in general as practiced to violate the United States Constitution, both issued in 1972. California reinstated the death penalty in 1978. In 2006, U.S. District Judge Jeremy Fogel halted executions in California after finding flaws in the state’s execution process.^[5] The current hold is pending judicial review of a new execution chamber and new methodologies for executing prisoners. However, themoratorium is expected to expand in 2013 because of the current court battle between inmate attorneys and the State’s Attorney General. Though prison officials have revised their procedures since 2006, death row inmates allege the procedures are still flawed and expose them to cruel and unusual punishment.

As of 2013, there are 741 offenders (20 of which are women) on California’s death row.^[6][7] Of those, 126 involved torture before murder, 173 killed children, and 44 murdered police officers.^[8]

Because California’s death penalty was enacted through the voter-initiative process, the only way to replace it is through a voter-approved ballot measure. In 2012, Proposition 34, which would have replaced the death penalty with life imprisonment, was defeated with 52% of the vote against and 48% for.

History

San Quentin State Prison, the location of the death row for the execution of male inmates.

Central California Women’s Facility, the location of the death row for female inmates.

The first known death sentence in California was recorded in 1778. On April 6, 1778 four Kumeyaay chiefs from a Mission San Diego area ranchería, were convicted of conspiring to kill Christians and were sentenced to death by José Francisco Ortega, Commandant of the Presidio of San Diego; the four were to be shot on April 11.^[3] However, there is some doubt as to whether or not the executions actually took place.^[4]

Four methods have been used historically for executions. Until slightly before California was admitted into the Union, executions were carried out by firing squad. Upon admission, the state adopted hanging as the method of choice.

The penal code was modified on February 14, 1872, to state that hangings were to take place inside the confines of the county jail or other private places. The only people allowed to be present were the county sheriff, a physician, and the county District Attorney, who would in addition select at least 12 “reputable citizens”. No more than two “ministers of the gospel” and no more than five people selected by the condemned could also be present.

Executions were moved to the state level in 1889 when the law was updated so that hangings would occur in one of the State Prisons—San Quentin State Prison andFolsom State Prison. According to the California Department of Corrections, although the law did not require the trial judge to choose a specific prison, it was customary for recidivists to be sent to Folsom. Under these new laws, the first execution at San Quentin was Jose Gabriel on March 3, 1893, for murder. The first hanging at Folsom was Chin Hane, also for murder, on December 13, 1895. A total of 215 inmates were hanged at San Quentin and a total of 93 were hanged at Folsom.

In previous eras the California Institution for Women housed the death row for women.^[9]

1972 suspension of capital punishment

On April 24, 1972, the Supreme Court of California ruled in People v. Anderson that the current death penalty laws were unconstitutional and oversaw the commuting of 107 death sentences in the state in 1972, which in turn affected high-profile cases such as Sirhan Sirhan and Charles Manson, relieving them from execution. Following the ruling, the California Constitution was immediately modified to reinstate capital punishment, under an initiative called Proposition 17. The statute was also updated to make the death penalty mandatory for a number of crimes including first degree murder in specific instances, kidnapping where a person dies, train wrecking where a person dies, treason against the state, and assault by a life prisoner if the victim dies within a year.

The debate over capital punishment was played out in a somewhat similar fashion on the national level. On June 29, 1972, the U.S. Supreme Court issued its decision inFurman v. Georgia, holding all capital punishment statutes then in effect in the United States to be unconstitutional. On July 2, 1976, the Supreme Court, in Gregg v. Georgia, reviewing capital punishment laws enacted in response to its Furman decision, found constitutional those statutes that allowed a jury to impose the death penalty after consideration of both aggravating and mitigating circumstances. On the same date, the Court held that statutes imposing a mandatory death penalty were unconstitutional.

In a later decision in 1976, the Supreme Court of California again held the state’s death penalty statute was unconstitutional as it did not allow the defendant to enter mitigating evidence. A further 70 prisoners had their sentences commuted following this. The next year, the statute was updated to deal with these issues. Life imprisonment without possibility of parole was also added as a punishment for capital offenses. A later change to the statute was in 1978 after Proposition 7 passed. This gave an automatic appeal to the Supreme Court of California, which would directly affirm or reverse the sentence and conviction without going through an intermediate appeal to the California Courts of Appeal.

In 1983, The State Bar of California created The California Appellate Project as a legal resource center to implement the constitutional right to counsel for indigent persons facing execution.^[10] At around the time of its founding, Michael Millman became the director of CAP. Millman served as director of CAP for 30 years.^[11] CAP oversees the efforts to assist private lawyers representing the more than 700 people on California’s death row.^[11]

The Supreme Court proposed in 2007 that the state adopt a constitutional amendment allowing the assignment of capital appeals to the Courts of Appeal to alleviate the backlog of such cases.^[12]

Introduction of lethal injection

The latest change of method was introduced in January 1993, when lethal injection was offered as a choice for people sentenced to death. David Mason however chose to die from lethal gas in August 1993, just seven months after lethal injection was introduced. This was replaced with lethal injection as the standard method in 1994. William Bonin was the first person to be executed by these new laws on February 23, 1996. Thirteen people have been executed in California since the death penalty was reinstated in 1977, though 56 other people have died on death row from other causes (14 of them from suicide) as of October 25, 2007.^[13]

2006 Federal court ordered moratorium on executions and non-partisan studies

Fogel’s ruling halted executions in California for nearly 5 years.

In February 2006, U.S. District Court Judge Jeremy D. Fogel blocked the execution of convicted murderer Michael Morales because of complaints about the administration of lethal injection in the gas chamber.^[14] It was argued that if the three-drug lethal injection procedure were administered incorrectly, it could lead to suffering for the condemned, potentially constituting cruel and unusual punishment. The issue arose from an injunction made by the U.S. 9th Circuit Court of Appeals which held that an execution could only be carried out by a medical technician legally authorized to administer intravenous medications. The case led to a de facto moratorium of capital punishment in California as the state was unable to obtain the services of a licensed medical professional to carry out the execution.^[15]

Several other victims’ families testified to the California Commission on the Fair Administration of Justice in opposition to capital punishment, explaining that whilst they had suffered great losses, they did not view retribution as morally acceptable, and that the high cost of capital punishment was preventing the solving of cold cases.^[16]

But others who contest this argument says the greater cost of trials where the prosecution does seek the death penalty is offset by the savings from avoiding trial altogether in cases where the defendant pleads guilty to avoid the death penalty.^[17]

The California Commission on the Fair Administration of Justice concluded after an extensive review that under the current death penalty system, death sentences are unlikely ever to be carried out (with extremely rare exceptions) because of a process “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the California Supreme Court’s review of death judgments. According to CCFAJ’s report, the lapse of time from sentence of death to execution constitutes the longest delay of any death penalty state.

An exhaustive study released in 2011, found that since 1978 capital punishment has cost California about $4 billion. A 2011 article by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, and law professor Paula Mitchell, concluded that “since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions.”^[18]

Moratorium continues

The old execution room at San Quentin State Prison (top), though still functional as a gas chamber, has been supplanted by new facilities designed specifically for lethal injection(bottom).

In addition to the federal case challenging the lethal injection protocol, state proceedings have provided an additional basis for halting executions. In the state case, the issue is whether the execution process complies with the Administrative Procedures Act. In December 2011, Judge Faye D’Opal of Marin County Superior Court ruled that the state had failed to justify the decision to put in place a three-drug lethal injection method, which some experts had said carries a risk of “excruciating pain,” instead of a one-drug method, which one of the Department of Corrections and Rehabilitation’s own experts had recommended.

As of May 2012 under the current 1978 law:

• 57 inmates have died from natural causes
• 6 inmates have died from other causes
• 20 inmates have committed suicide^[19]
• 13 have been executed in California
• 1 inmate (Kelvin Shelby Malone) was executed in Missouri

July 2014 decision

On July 16, 2014, federal judge Cormac J. Carney of the United States District Court ruled that California’s death penalty system is unconstitutional because it is arbitrary and plagued with delay. The state has not executed a prisoner since 2006. The judge stated that the current system violates the Eighth Amendment‘s ban on cruel and unusual punishment by imposing a sentence that “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.” The state of California is believed to be likely to appeal the decision to the Ninth Circuit Court.^[2]

Current legislation

Method

Prisoners sentenced to death are allowed to select lethal injection or exposure to lethal gas.

Under the California Penal Code § 3604 (a):

The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections.

Pursuant to subsection (b) of that Code section, if the prisoner does not make a decision on the method within 10 days after the warden’s service upon the inmate of an execution warrant, then lethal injection is automatically chosen.

In October 1994, a United States federal judge ruled that the gas chamber was an unconstitutionally cruel and unusual punishment in Fierro v. Gomez, 865 F.Supp. 1387 (N.D. Cal. 1994), and this was upheld by the U.S. 9th Circuit Court of Appeals in February 1996, Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996). The Supreme Court of the United States never ruled on the case, however, as California amended its statute to include lethal injection as the default method while the case was still pending on appeal. The Supreme Court of the United States, however, did subsequently hold in Stewart v. LaGrand, 526 U.S. 115 (1999) that by selecting a specific method of execution an inmate waives his right to challenge that method’s constitutionality. This means that lethal gas still theoretically remains optional in California if an inmate should opt for it.

As in any other state, people who are under 18 at the time of commission of the capital crime^[20] or mentally retarded^[21] are constitutionally excluded from being executed.

Capital offenses

The penal code provides for possible capital punishment in:

• treason against the state of California, defined as levying war against the state, adhering to its enemies, or giving them aid and comfort.^[22]
• perjury causing execution of an innocent person^[23]
• first-degree murder with special circumstances^[24]
  • for financial gain (1)
  • the defendant had previously been convicted of first or second degree murder (2)
  • multiple murders (3)
  • committed using explosives (4) ; (6)
  • to avoid arrest or aiding in escaping custody (5)
  • the victim was an on-duty peace officer; federal law enforcement officer or agent; or firefighter (7) ; (8) ; (9)
  • the victim was a witness to a crime and the murder was committed to prevent them from testifying (10)
  • the victim was a prosecutor or assistant prosecutor; judge or former judge; elected or appointed official; juror; and the murder was in retaliation for the victim’s official duties (11) ; (12) ; (13) ; (20)
  • the murder was “especially heinous, atrocious, or cruel, manifesting exceptional depravity” (14)
  • the murderer lay in wait for the victim (15)
  • the victim was intentionally killed because of their race, religion, nationality, or sexual orientation. (a hate crime) (16)
  • the murder was committed during the committing of a robbery; kidnapping; rape; sodomy; performance of a lewd or lascivious act upon the person of a child under the age of 14 years; oral copulation; burglary; arson; train wrecking; mayhem; rape by instrument; carjacking; torture; poisoning (17)
  • the murder was intentional and involved the infliction of torture (18)
  • poisoning (19)
  • the murder was committed by discharging a firearm from a motor vehicle (21)
  • the defendant is an active member of a criminal street gang and was to further the activities of the gang (22)
• train wrecking which leads to a person’s death.^[25]

Public opinion

The Field Research Corporation found in February 2004 that when asked how they personally felt about capital punishment, 68% supported it and 31% opposed it (6% offered no opinion). This was a decrease from 72% support two years previous, and an increase from 63% in 2000. This poll was asked about the time that Kevin Cooper had his execution stayed hours before his scheduled death after 20 years on Death Row. When asked if they thought the death penalty was generally fair and free of error in California, 58% agreed and 32% disagreed (11% offered no opinion). When the results were broken down along ethnicity, of the people who identified themselves as African American, 57% disagreed that the death penalty was fair and free of error.

A poll in March 2012 found that “61% of registered voters from the state of California say they would vote to keep the death penalty, should a death penalty initiative appear on the November 2012 ballot”^[26]An August 2012 poll found that “support for Prop 34, which would repeal California’s death penalty, fell from 45.5% to 35.9%.”^[27]

A PPIC poll from September 2012 showed that 55% of all adults and 50% of likely voters prefer life in prison without the possibility of parole over the death penalty when given the choice.^[28]

A Field Poll in September 2014 showed that 56% support the death penalty, down from 69% three years ago. Support for the death penalty in California had not been at this low a level since the mid-1960s.^[29]

Proposition 34, the SAFE California Act

A coalition of death penalty opponents including law enforcement officials, murder victims’ family members, and wrongly convicted people launched an initiative campaign for the “Savings, Accountability, and Full Enforcement for California Act,” or SAFE California, in the 2011-2012 election cycle.^[30] The measure, which became Proposition 34, would replace the death penalty with life imprisonment without the possibility of parole, require people sentenced to life in prison without the possibility of parole to work in order to pay restitution to victims’ families, and allocate approximately $30 million per year for three years to police departments for the purpose of solving open murder and rape cases.^[31] Supporters of the measure raised $6.5 million, dwarfing the $1 million raised by opponents of Proposition 34.^[32]

The proposition was defeated with 52% against, 48% in favor.^[33]

Comments by Chief Justices of the California Supreme Court

The current Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, a Republican appointee and former prosecutor, when questioned about the death penalty during an interview, stated: “I don’t think it is working…. It’s not effective. We know that.”^[34] Her predecessor, former Chief Justice Ronald George, also a Republican appointee, characterized the system of death penalty appeals in California as “dysfunctional.”^[35]

Executions after 1976

The following 13 people convicted of murder have been executed in California following the 1976 U.S. Supreme Court decision of Gregg v. Georgia. The first two executions were by gas chamber; all subsequent executions were by lethal injection.

See also

• Capital punishment in the United States
• Crime in California
• Law of California
• List of wrongful convictions in the United States
• List of exonerated death row inmates
• List of United States death row inmates

References

External links

• Inmates Executed, 1893 to Present. California Department of Corrections and Rehabilitation
• Executions in California 1778–1967
• Capital Punishment Information from the California Department of Corrections and Rehabilitation
• “Two-thirds of California voters favor the death penalty, But a sizeable minority believe it has not been fairly implemented (PDF)” (PDF). Field Research Corporation. March 5, 2004.
• California execution chamber photos