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The California Supreme Court is considering briefs on whether to uphold a voter-approved law to speed up death penalty cases.
Approved by voters in November 2016, Prop. 66 authorizes more lawyers to take death penalty cases and sets a five-year timeline for appeals. Opponents sued to invalidate the measure, which was set to take effect last month, but the high court stayed implementation and ordered briefing on the case this month.
"There are individual provisions of this measure that raise serious constitutional issues," said Gerald Uelmen, a Santa Clara law professor emeritus who served as the chief executive of a state commission that examined California's death penalty system. "I would expect the court is going to strike down at least some provisions."
California, with 749 inmates awaiting execution, has the largest death row in the country. No one has been executed in California since 2006 when a judge ruled that the state's administration of lethal injection was cruel and unusual punishment. Some appeals have taken up to 25 years.
Voters faced opposing initiatives on the death penalty this year. Fifty-one percent voted to speed up executions through Prop. 66, while forty-six percent voted to abolish the death penalty under Prop. 62. Ron Briggs, a vocal opponent of the death penalty, and former California Attorney General John Van De Kamp, filed their lawsuit the day after the election.
In their petition, they say Prop. 66 "will result in immediate increased expenditures of public funds, a suppression of legitimate challenges, and a decrease in counsels' ability to represent their clients." They also contend it sets "an inordinately short timeline for the courts to review those complex cases."
Two justices of the high court reportedly have recused themselves from the case because they serve on the state's Judicial Council, which is a defendant in the lawsuit and the court's policy-making body. Chief Justice Tani Cantil-Sakauye and Justice Ming W. Chin, both appointed by Republican governors, apparently will be replaced by appellate jurists selected by the chief justice.
With 77 death penalty appeals and 89 habeas petitions ready for the high court to decide, UC Berkeley law professor Elisabeth Semel said, the court is backlogged. She said the court would not have the time to handle all death penalty cases under the timelines set by Prop. 66, and would have very little time for civil disputes.
"The court can only handle a certain number of these cases a year," Semel said. "It is not feasible."
Kent Scheidegger, counsel for the Criminal Justice Legal Foundation and an author of Prop. 66, blamed defense lawyers for the backlog. He also faulted the court for granting extensions of time to the defense lawyers.
'"Basically, the court needs to get tough on these people," he added. "You read a docket of capital cases today and see 23 extensions of time. They need to start saying no."
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