LOS ANGELES — California Supreme Court justices considering whether a ballot measure to speed up executions is unconstitutional expressed skepticism Tuesday about a provision that would require death sentence appeals to be completed within five years.
Several justices peppered a lawyer from the attorney general’s office about how the deadline could be met without radically altering the court system and whether there would be consequences for failing to meet it or whether it was merely aspirational.
“So it’s a mandatory deadline that’s toothless?” Justice Leondra Kruger asked.
The ultimate goal is to meet the deadline, Deputy Attorney General Jose Alfonso Zelidon-Zepeda said, but he conceded it’s not enforceable.
Supporters of Proposition 66 downplayed the deadline as not being a critical piece of the law that aimed at reforming a dysfunctional system that hasn’t executed a condemned killer in more than a decade. But death penalty opponents said it was a flip-flop from the language of the law in order to protect the measure from a constitutional challenge.
The measure passed by 51 percent of voters in November would assign more lawyers to death sentence appeals and shift some appeals to trial court judges in an effort to speed up cases. It can now take five years to appoint a lawyer and an average of 15 years to complete appeals.
Supporters said the court could strike the five-year time limit and still uphold the law, but death penalty opponents said the deadline was not merely a guideline — it was a critical piece of a false promise made to voters.
“The voters were promised that they could make death penalty cases happen faster and cheaper and without killing … any innocent people,” attorney Christina Von der Ahe Rayburn, who challenged the measure, argued. “The voters were promised a trifecta that everyone in this room, I believe, knows is not quite possible to achieve.”
Foes of capital punishment argued that Proposition 66 was unconstitutional because it would strip the state’s high court from deciding how it handles cases and it would disrupt the court system, cost the state more money and undermine the appeals process.
The state Judicial Council, which sets policy for the courts, would have the burden to put changes in place that would affect trial courts and both levels of appeals courts. Justice Goodwin Liu asked how such changes would take effect with no plan in place and how many cases the high court would have to hear per year to get through a backlog of more than 380 appeals.
“That is a massive delegation of power to reorganize a third branch of government,” Liu said. “One would expect that if legislation were to do that the legislation should make clear … what trade-offs are needed to be made so that can be enacted into law. Not an aspirational goal that just says, ‘Come as close as you can to five years and you guys go figure it out.'”
Zelidon-Zepeda, who was frequently interrupted, said cases should be handled as quickly as possible and it was important to let the measure take effect to see how it works.
The ballot initiative was designed to “mend not end” capital punishment in California, where nearly 750 inmates are on Death Row and only 13 have been executed since 1978.
A competing measure to repeal capital punishment lost at the polls by a slightly wider margin. Both sides acknowledged the current system is broken.
“The one thing everybody agreed on was that the status quo was unsatisfactory,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, who also argued in support of Proposition 66. “What they’re asking to do is override the voters and keep the status quo.”
Even before all the votes were counted and the reform measure was declared a winner, challengers went to court to block it.
Ron Briggs, a former pro-capital punishment supervisor from El Dorado County whose father wrote the ballot measure that expanded California’s death penalty in 1978, brought the measure with former state Attorney General John Van de Kamp, a longtime death penalty opponent, who died in March.
The challengers also targeted Proposition 66 for violating a requirement that a ballot measure only cover a single subject.
They said it appealed to voters by incorporating unrelated elements that would allow condemned inmates to be housed more cheaply at prisons other than San Quentin and would require a percentage of inmate pay to go toward victim restitution.
But that issue got short shrift and Justice Kathryn Werdegar said the court allowed ballot measures to embrace a wide range of subjects. Historically, the court has given wide latitude to the will of the voters and shot down most challenges to ballot measures.
The seven justices must rule within three months.
Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, both members of the Judicial Council, which is a defendant in the case, recused themselves.
They were replaced by Court of Appeal justices from Sacramento and Orange counties, who were less active in the arguments.