California's Cruel And Unusual Death Penalty 40 Years And $4 Billion After Furman v. Georgia

San Quentin State Prison

40 years ago today, the United States Supreme Court decided Furman v. Georgia, which struck down existing death penalty laws as unconstitutional in violation of the Eighth Amendment's cruel and unusual clause.  California's death penalty was quickly reinstated.

Attempting to comply with Furman, the new statute made the death penalty mandatory for certain first degree murders and other crimes.  But in 1976, the U.S. Supreme Court struck down death penalty laws that provided for mandatory death sentences. The California Supreme Court, relying on the high court's ruling, once again found the state's statute to be unconstitutional.

Undeterred, the California legislature passed a new death penalty law in 1977.  This was followed in 1978 by a ballot proposition, known as the Briggs Amendment, which was similar but more expansive version that sought to encompass more -- virtually all -- categories of murder (including unintentional murders committed during certain felonies).  Briggs passed and it is the law we are living with, so to speak, today.   

Forty years after Furman: $4 billion dollars, over a thousand death sentences, over 720 currently on death row, and 13 executions, none since January 2006.

Tani Cantil-Sakauye, after one year as the Chief Justice of the State of California, has concluded that the state's capital punishment system is "not effective" and requires "structural changes" that the State cannot afford.  Her predecessor, Ron George, who was Chief Justice for 15 years, came to the same conclusion, describing California's death penalty scheme as "dysfunctional."

An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year.  They 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."

Justice Byron White observed in Furman that:

When imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.  Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.” 

The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  In addition, given the current backlog and the serious problems identified by the California Commission for the Fair Administration of Justice (CCFAJ) -- problems that would require an enormous influx of state funds to fix -- it simply is not possible that defendants who are only now being sentenced to death will have their death sentences carried out.  Because it is “so wantonly and so freakishly” used, California’s death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down in Furman.

Justice Potter Stewart famously characterized the Texas and Georgia statutes at issue in Furman as being “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”  What he meant was that of all those who committed death eligible crimes, the petitioners were “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . [and] the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

Application of Furman’s benchmark for determining arbitrariness demonstrates that only a “capriciously selected random handful” of death-sentenced inmates in California will actually be executed.  A new death row prisoner would have to get in line behind 720 condemned inmates.  He or she would then have to wait years for appointment of appellate counsel (currently a 5 year wait) and even longer for the appointment of state habeas counsel (8-10 years).  Even after these lawyers are appointed and appellate briefs and habeas petitions are filed, the case will not be heard and decided before the several hundreds of cases that have preceded it.  And then, after all this time and expense, the California Supreme Court, in virtually every case regardless of the merits, will uphold the death sentence.   Then the case moves on to federal court, which has its own backlog, and often requires new counsel, with proceedings currently averaging over six years in district court followed by over four years of appellate review. 

Justice White noted in Furman that where the “penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice” it is unconstitutional.  As he stated, when the death penalty “ceases realistically to further [the social ends it was deemed to serve] . . .  its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

We have far surpassed this point in California.

The SAFE California Act is on the November ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Please join the effort to replace the death penalty by clicking here:  SAFE California.