California Supreme Court ruling could fast-track executions

BY SUDHIN THANAWALA and BRIAN MELLEY Associated Press

SAN FRANCISCO (AP) -- California could take a giant step closer to resuming executions when the state Supreme Court issues a highly anticipated ruling on a ballot measure to speed up the state's dysfunctional death penalty system.

The California Supreme Court will rule Thursday on a lawsuit challenging the constitutionality of Proposition 66, a push to "mend not end" capital punishment in California. The measure beat a competing initiative on the November ballot that would have abolished the death penalty.

Condemned inmates in California currently languish for decades and are more likely to die of natural causes than from lethal injection. There are nearly 750 inmates on death row and only 13 have been executed since 1978 -- the last in 2006.

The California Supreme Court ruling comes as state officials face a Friday deadline to unveil a revised lethal injection drug protocol to execute inmates. The fight over the drug procedure, which is tied up in federal court, has been a significant obstacle to resuming the death penalty.

Proposition 66 aimed to expedite death sentences in part by setting a five-year deadline on court appeals. It now takes up to five years for death row inmates to get an attorney, and it can take upward of 25 years to exhaust appeals.

Proposition 66 would expand the pool of appellate lawyers handling capital cases and allow lower-level state courts -- not just the California Supreme Court -- to hear appeals.

Death penalty opponents agreed with Proposition 66 backers that the current system was broken. But they argued that the measure would lead to the appointment of incompetent attorneys and overwhelm courts. The result: Insufficient review that could send innocent people to their deaths.

Arguments before a divided California Supreme Court in June focused on whether the measure's five-year deadline to hear appeals was realistic and enforceable. Supporters of the measure surprised observers when they conceded the time limit was not mandatory, but more of a guideline.

Kent Scheidegger, who argued in support of Proposition 66 before the state Supreme Court, said even if the court had a problem with one element of the measure, he didn't anticipate that it would strike down the entire thing.

"It's a broad reform with a number of provisions that will advance the same goal but don't depend on each other," he said.

Proposition 66 would also end the requirement that prison officials receive approval from state regulators for their new lethal injection plan. Regulators rejected an initial version of the plan in December.

Scheidegger said there hasn't been any discussion among Proposition 66 supporters about returning to voters with a new ballot measure if it fails.

Christina Von der Ahe Rayburn, an attorney for opponents of Proposition 66, declined to comment ahead of the ruling.

Several justices seized on the five-year deadline during arguments and questioned how it could be met without radically altering the court system. With 380 death penalty appeals now pending, there was concern from some legal observers that the state's high court would be overwhelmed trying to meet the deadline and would hardly hear other cases of merit.

"I don't think anybody can actually argue that there's a positive value in having these cases last for 20 or so years," said Robert Weisberg, a criminal justice expert at Stanford Law School. "But that's probably unavoidable because of forces in our legal system that can't be controlled by a proposition."

Weisberg said trying to meet the five-year rule would create "incredible chaos" in the court system.

Death penalty supporters argued the measure would not create chaos and could be upheld without a hard deadline. They urged justices to give it a chance to work.

The measure -- approved by 51 percent of voters -- was designed by prosecutors to revamp the appeals process so the "worst of the worst" murderers are actually executed.

Under the measure, more lawyers would have to take death penalty appeals, and they would be assigned almost immediately after sentencing. It would shift one type of appeal focused on newly discovered evidence or alleging misconduct by jurors or prosecutors to trial court judges.