Political Cycles of Life and Death: Capital Punishment as Public Policy in California

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I. INTRODUCTION

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. …