Capital punishment has been an important issue in contemporary American politics since the mid-1960s. But, because there have been only three executions for federal crimes in almost forty years, (1) it has been left to the states to debate the issues and efficacy of capital punishment as public policy. (2) The variation in its use in the states reflects the rulings of the U.S. Supreme Court about procedures and processes of applying the death sentence, individual state high court decisions, and the varying political attitudes in support of and opposition to it as a public policy. (3) The increase in anti-death-penalty sentiment among the public from the late 1950s to the early 1960s and a number of troubling legal concerns about death penalty procedures in the states, led to a de facto moratorium on its use from 1967 to 1977. (4) During this time the U.S. Supreme Court heard a variety of arguments on the constitutionality of capital punishment. (5)
Among the score of decisions handed down by the Court in this period, two stand out because of their implications on the states. In Furman v. Georgia, (6) decided in June 1972, the Supreme Court held that the death penalty was unconstitutional when implemented in an arbitrary and capricious manner. (7) The five-to-four decision nullified the use of the death penalty by the federal government, and by the forty states that provided for its use at that time. (8) Efforts on behalf of the states to restore their capital punishment statutes in compliance with Furman were uncertain because the Supreme Court was unclear regarding the specific procedural guidelines that would be acceptable. (9) Much of the doubt was eased in 1976 by the Court's plurality opinion in Gregg v. Georgia, (10) in which a majority of the Court held that the death penalty was not inherently unconstitutional. A majority held that new capital punishment laws adopted by the states were legally valid when they provided for bifurcated trials. (11) Under this process, a capital case would be divided into two distinct parts. First, the trial stage would determine the guilt of a defendant. If the accused was in fact found guilty, the sentence stage would follow, in which the trial jury would reconvene and consider any mitigating and/or aggravating circumstances in order to determine whether the felon should be sentenced to death. (12)
Since Gregg, thirty-eight states have restored the death sentence, while twelve states have abolished capital punishment all together. (13) The first execution in the post-Gregg period occurred in Utah in 1977 in the widely publicized firing squad execution of Gary Gilmore. (14) As with other morality issues, the debate over capital punishment generally reflects the political culture in the individual states. In some states, the political decisions to restore capital punishment and resume executions were made without controversy. (15) In others, the matter has caused turmoil especially when one branch of government nullifies what another seeks to do; for example, when a governor vetoes death penalty legislation, a legislature passes cumbersome capital legislation which it knows will face court challenge, or the state judiciary overturns capital punishment laws. (16)
The life cycle of the death penalty in California invites examination and discussion for several reasons. First, the major branches of government have been in conflict with each other over the death penalty for several decades, most notably in the mid1970s and mid-1980s. (17) Studies that discuss the legislative response to Furman are valuable, (18) but a more complete understanding of the dynamics of this issue requires analysis of the institutional behaviors of the other policymaking organs of government. Second, the California Supreme Court has played an active role in defining capital policies in the state. (19) Public reaction to the court's death penalty decisions led voters to deny new terms to three of the justices in 1986. (20) The judiciary's handling of this issue also illustrates the consequences when the concepts of judicial independence and judicial accountability collide. (21) Third, there is an obvious contrast between capital policies in the pre-Furman period, when California was one of the leading executing states in the country, and the present. It was fifteen years since the passage of the state's current death penalty statute in 1977 before the first execution in this new period occurred. (22) A total of ten felons were executed between 1977 and 2002. (23) By contrast, the felons who were executed between 1930 and 1967 represent an average of almost eight executions per year. (24)
This essay analyzes the evolution of a public policy formulated by the legislature, modified by the courts, shaped by public opinion, and influenced by key political figures over the past four decades. Part II illustrates the development of a public-political conflict over the death penalty between 1958 and 1971. Part III focuses on the period between 1972 and 1986, when the controversy intensified and the conflict ultimately reached its apogee. Part IV addresses the sense of policy balance and normalcy that reemerged between 1987 and 2000. Part V discusses the public view surrounding the death penalty. Finally, Part VI summarizes the lessons that should be learned from California's experience with capital punishment.
II. THE DEVELOPMENT OF THE CAPITAL PUNISHMENT CONFLICT: 1958-1971
The state's first death penalty statute, An Act Concerning Crimes and Punishments, was passed the year California joined the union. (25) Official records about its use during the early decades are scant, but one reliable source shows that a total of 502 felons were executed between 1893 and 1967, or about 6.8 executions a year. (26) Initially, executions were carried out in the counties where the crimes were committed, however legislation after the turn of the century required the condemned to be put to death at one of the state's two main prisons, either Folsom or San Quentin. In 1937, new legislation changed the method of execution from hanging to lethal gas--a move regarded as a humane switch--and San Quentin was designated the sole institution where executions would occur. (27)
There is nothing to suggest that capital punishment was a crucial political issue or a major source of controversy until the case of a man named Caryl Chessman arose. (28) Caryl Chessman was convicted in 1948 of numerous felonies involving robbery, rape, and kidnapping. He was scheduled to be executed nine separate times but evaded death for over a decade through appeals and stays of execution. (29) His case alone went to the U.S. Supreme Court seventeen different times. (30) Chessman, an articulate individual, wrote several popular books about his life while on death row. Due to a myriad of factors, the Chessman case became the cause celebre in the anti-death penalty movement. Among these were his intelligence, his steadfast insistence that he was innocent, the fact that no one was killed in the crimes of which he was convicted, and his long stay on death row. (31)
The Governor of California at the time, Edmund G. "Pat" Brown, refused to grant Chessman executive clemency. Hours before he was scheduled to die in 1960, however, Brown gave Chessman a sixty-day reprieve as a result of a phone call in which Brown's son, Jerry Brown, asked that Chessman's life be spared. At the time, the young Brown (and future governor himself) had recently left a Jesuit seminary where he had been in residence for over three years. (32) After issuing the reprieve, Governor Brown attempted to convince the state legislature to declare a moratorium on capital punishment. Lawmakers were furious, for it appeared to them that Brown was stalling the execution; they rejected his appeal. Finally, on May 2, 1960, Chessman was executed. (33)
The Pat Brown years marked the last period when the death penalty was employed with any frequency in the state. Twenty years earlier, when Earl Warren was governor, eighty-two individuals were executed. His successor, Governor Goodwin Knight, allowed forty-one executions to proceed during the next five years. Thirty-six were to die during Brown's two terms. (34) Brown considered his inability to get the Democrat-controlled legislature to abolish or suspend the use of capital punishment a personal failure. (35)
Brown's stance on capital punishment represented an attitude of pragmatism. Though Brown was born to a Catholic father, his opposition to the death penalty came from his belief that it served no useful purpose. (36) Brown acknowledges, however, one instance in which he allowed his political goals to override his personal stance on this issue. At the time, Brown was pushing for passage of a bill that would enact a minimum wage for agricultural workers, most of whom were employed in the Central Valley. One key legislator, from the Central Valley and pro capital punishment, let it be known that he would oppose Brown's bill if the governor granted clemency to a death row inmate from the Central Valley. Brown needed the legislator's vote and decided to reject the inmate's plea for clemency to secure the legislator's support. (37) For Brown, the clear public and legislative support for capital punishment dictated that it be used until the time that courts, the legislature, or the people decided it was unconstitutional or unnecessary.
Brown ran for a third term in 1966. (38) His liberal policies had been weakened, however, by the student turmoil which had begun as the Free Speech Movement at the University of California-Berkeley campus in 1964, as well as by the Watts riot in 1965, the increase in state taxes, and the size of government during his terms of office. (39) The Republican gubernatorial candidate, Ronald Reagan, campaigned to restore law and order to college campuses, (40) and to reduce state spending. He won with an impressive fifty-eight percent of the vote. (41) During the campaign, Reagan frequently noted Brown's reluctance to vigorously use the death penalty and suggested Brown was responsible for the delays in executions. "Reagan complained that the executions had been put off so long that there was a need for an `urban renewal project on death row.'" (42)
In spite of Reagan's pro-capital-punishment stance, only one execution occurred during his two terms as governor. (43) Aaron Mitchell, a young black man, was originally sentenced to death in 1963 for killing a policeman in an armed robbery. Mitchell won a new trial on appeal, but was again …