Introduction
William J. Stuntz, The Collapse of American Criminal Justice
Political crimes
People v. Steelik (1921), 187 Cal. 361
People v. Steelik (1921), 187 Cal. 361, 203 P. 78
WILBUR, J.
The defendant was charged with the crime of criminal syndicalism under [the California Criminal Syndicalism Act of 1921 for membership in the IWW (Industrial Workers of the World), a radical leftist union popularly known as the Wobblies. The statute provided:]
“Section 1. The term ‘criminal syndicalism’ as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.” [It went on to comprehensively criminalize membership, organization, advocacy, and conspiracy to support a syndicalist organization or advocate syndicalism as a felony punishable by a prison sentence up to fourteen years.]
We must look to the general law of the state to determine what are “unlawful acts of force and violence,” and what are “unlawful methods of terrorism,” and to ascertain what acts are crime. The “malicious physical damage to physical property” is evidently synonymous with malicious mischief and arson, and other unlawful acts resulting in the damage to or destruction of physical property. These wrongful acts, most of them already punishable by the criminal law, are denounced by the statute and made felonious when done, or advocated as a means of political or industrial change. The Criminal Syndicalism Act might be summarized as an act to punish the advocacy of crime or wrong, engaging in conspiracies to commit crime or unlawful acts, or the commission of crime or unlawful acts as a means of changing industrial or political control. It is proper to seek desired changes in political and industrial control, but when criminal or unlawful means are used to effect political control, the means is punishable under the act defining and prohibiting criminal syndicalism, as well as under the act defining the crime.
The defendant argues with great learning that the statute under consideration violates the right of free speech guaranteed in the federal and state constitutions and for that reason is unconstitutional and void. The right of free speech was guaranteed to prevent legislation which would by censorship, injunction, or other method prevent the free publication by any citizen of anything that he deemed it was necessary to say or publish. The right of free speech does not include the right to advocate the destruction or overthrow of government or the criminal destruction of property. The Criminal Syndicalism Act does not violate the right of free speech. It is expressly provided in our constitution [currently Art. I, § 2] that the publisher is liable for an abuse of this power and for any unlawful publication. This statute does not prevent the publication; it punishes the publisher, and declares punishable the character of publication denounced by the act as illegal. The legislature has power to punish propaganda which has for its purpose the destruction of government or the rights of property which the government was formed to preserve. It is clear that the statute does not violate the right of free speech as defined by law.
Appellant contends that the offense with which he is charged comes under the common-law definition of constructive treason, and that therefore he cannot be punished because of the definition of treason contained in the federal and state constitutions. These definitions are merely for the purpose of limiting the number of offenses which can be punishable as treason under the common law, and in nowise limits [sic] the power of the legislature to provide for the punishment of acts inimical to the public welfare which theretofore might have been punished as constructive treason.
On the whole, therefore, we hold that the record justifies the conviction of the defendant of the offense of criminal syndicalism in that he knowingly belonged to an organization which in its nature was a criminal conspiracy to change industrial control and government by unlawful and criminal methods.
Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J. concurring)
Whitney v. California
274 U.S. 357 (1927)
[The United States Supreme Court, in a majority opinion by Justice Edward T. Sanford, upheld the conviction of Anita Whitney, a prominent San Francisco socialite (and socialist) for participation in the creation of the Communist Labor Party of California on the grounds that this constituted a violation of the Criminal Syndicalism Act. The Court’s majority upheld the constitutionality of the statute on a bad-tendency rationale. The case is remembered today for Justice Louis Brandeis’s concurrence (in effect, a dissent; Brandeis concurred on a procedural technicality), joined by Justice Oliver Wendell Holmes. Brandeis’s Whitney concurrence is ranked as a locus classicus in the canon of justifications for speech freedom, along with John Milton’s Aeropagitica and John Stuart Mill’s On Liberty.:]
The felony which the statute created is a crime very unlike the old felony of conspiracy or the old misdemeanor of unlawful assembly. The mere act of assisting in forming a society for teaching syndicalism, of becoming a member of it, or assembling with others for that purpose is given the dynamic quality of crime. There is guilt although the society may not contemplate immediate promulgation of the doctrine. Thus the accused is to be punished, not for attempt, incitement or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims, not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.
[The fundamental rights of freedom of speech and assembly] may not be denied or abridged. But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent has been settled
This court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a state is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.
Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
[Ed. Note: Whitney was questioned in Dennis v. United States, 341 U.S. 494 (1951) (plurality opinion of Vinson, C.J.) and overruled in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).]
Search and seizure
Cal. Constitution Art. I sec. 13
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 13. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.
People v. Brisendine (1975), 13 Cal.3d 528
People v. Brisendine (1975) ,13 Cal.3d 528 [119 Cal.Rptr. 315
MOSK, J.
Defendant was charged with possession of marijuana and possession of a restricted dangerous drug. His motion to suppress the evidence on the ground of illegal search and seizure was denied. Defendant was found guilty on both counts and placed on probation. He appeals from the order granting probation, contending that the contraband was obtained by means of an unlawful search and seizure.
On the night of June 3, 1970, two deputy sheriffs, Rodney Denney and Michael Norman, were inspecting for county fire code violations in the Deep Creek area of the San Bernardino National Forest. The locale had been designated a “high fire hazard area” in which both open campfires and overnight camping were prohibited. Upon finding two vehicles parked on the road the deputies proceeded into the forest on foot, where they came upon one Marlow Bartels, a lone camper whom they arrested for possession of marijuana. Approximately half a mile from the place where they left Bartels the officers observed another campfire. Nearby were four young men in sleeping bags, one of whom was this defendant. Officer Norman placed the four under arrest for having an open campfire in violation of the Uniform Fire Code of San Bernardino County.
The intent of the officers at the time was to escort the youths out of the area and back to the patrol car, where they would be cited for the fire ordinance violation and ordered to appear before a magistrate at some future date. There was no intent to place the four in custody preparatory to any booking. The deputies justified the need to escort the campers out of the forest on the dual rationale that (1) camping was prohibited in the area and (2) they had left their citation books in their patrol car.2
Prior to starting back, the officers conducted a thorough search of the persons and effects of all four youths. Denney picked up defendant’s knapsack, squeezed it, determined that the outer layer was too solid to ascertain whether it contained weapons, and began a search of its compartments. The contraband was found in a side pocket of the pack: the marijuana was contained in a frosted plastic bottle with a cap on it, and the tablets of restricted dangerous drugs were wrapped in tinfoil and enclosed in envelopes.
Following the search and confiscation of the contraband the four suspects were removed from the area and escorted back to the patrol car. Defendant was taken into custody; his three companions were given citations, made to sign promises to appear, and released.
Defendant attacks the legality of the search of his knapsack and the seizure of the contraband on the following grounds: (1) the evidence indicates that the police were conducting an exploratory search for narcotics, not weapons; (2) there were no specific, articulable facts or circumstances which reasonably warranted a search for weapons; and (3) even if the officers had a limited right to search for weapons, the extent of the search undertaken exceeded its legitimate scope
For the reasons discussed infra we conclude there was substantial evidence to support the trial court’s finding that the search was legitimately concerned with weapons and not contraband. Similarly, since it was necessary for the officers to be in close proximity with defendant and his companions for a prolonged period of time, we are of the view that the circumstances reasonably warranted such a weapons search; that being the case, the officers were justified in investigating further when a pat-down of defendant’s knapsack proved inadequate to disclose if it contained weapons. However, we hold that the officers’ subsequent intrusion into the opaque bottle and envelopes inside the knapsack cannot be justified by the limited purpose which validated the search in its inception. Accordingly, we hold these items were obtained by means of an unreasonable search and seizure in violation of article I, section 13, of the California Constitution.
It is true there was evidence presented which could have led the trial court to conclude that the ostensible weapons search was merely a facade designed to provide justification for an exploratory search for narcotics. If such were the case, of course, the search would have been illegal. [But] the terrain, the lateness of the hour, and the unfamiliarity of the suspects might well have led a prudent officer to take reasonable precautions. As an appellate court we are bound to “’view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ Our responsibility is simply “to measure the facts, as found by the trier, against the constitutional standard of reasonableness.” We conclude that the court’s determination that the object of the search was weapons is supported by substantial evidence and cannot be disturbed on appeal.
Defendant next contends that, assuming the search was for weapons, it was illegal because the officers could not point to specific, articulable facts justifying such a search. He principally relies on People v. Superior Court (1972) 7 Cal.3d 186, 202-206 [101 Cal.Rptr. 837, 496 P.2d 1205] (hereinafter called Simon), for the proposition that if an arrestee is cited for an offense which typically has neither “instrumentalities” nor “fruits,” no search is allowable unless there are particular facts present which would reasonably lead the officer to believe the subject was armed.
In analyzing the present case in light of Simon we encounter first a difficulty in classification. There, in reviewing the permissible scope of a search incident to an ordinary traffic arrest, we were able to divide offenders into three discernible groups : (1) those who are merely cited and immediately released, (2) those who may or must be taken before a magistrate and given the option to post bond, and (3) those who are arrested for felonies and booked according to the general Penal Code provisions on felony arrests.
Classification into one of the foregoing categories is essential to analysis, since both the justification and the scope of a weapons search incident to an arrest are dependent on the relative danger to the officer presented by each type. Here, while it is clear that defendant’s arrest could not be placed in the third category, it is arguably similar to either of the remaining two. The officers’ intention prior to the discovery of the contraband was simply to cite defendant for his fire code violation and allow him to continue on his way. Yet to accomplish this result in the case at bar it was necessary for the officers to travel in close proximity with defendant for a considerable period of time, substantially increasing the risk to the officers if in fact defendant were armed. The situation thus appears more akin to that in which an officer transports a suspect before a magistrate, even if bond can then be posted and a prebooking search avoided.
In the latter instance a “pat-down” or limited search for weapons is permissible; in the former it is not.
We conclude that where, as here, the exigencies of the situation require that officers travel in close proximity with arrestees, a limited weapons search is permissible even though the charge will ultimately be disposed of by a mere citation. In so holding we are mindful of “the dangers daily faced by the men who bear the burden of policing our streets and highways, and of the fact that even a minor … citation incident can occasionally erupt into violence.
But this conclusion does not end our inquiry, for it is well settled that “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” The issue is thus dual: “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”
Once again we emphasize that in reviewing a warrantless search to determine the reasonableness of its breadth a court is ill-advised to apply hard and fast rules. Rather we must be concerned, in a case-by-case analysis, with whether the extent of the search exceeded the attainment of the objectives which justified its inception. Here we have found that under the circumstances (1) the officers had a legitimate apprehension for their safety; (2) there was a necessity to escort the arrestees a considerable distance over primitive terrain in the nighttime; (3) it was also necessary that the effects of the arrestees accompany them; and (4) there was no practical way the officers could have negotiated the difficult trek back and at the same time assure that the arrestees would not be able to gain access to a weapon secreted in their gear. Under these facts, a pat-down search of defendant’s pack was authorized.
To briefly summarize our holding: Typically in cases of warrantless weapons searches the police must be able to point to specific and articulable facts which reasonably justify a belief that the suspect is armed. In the ordinary citation situation the fact of the arrest alone will not supply this justification and additional facts must be shown. In the case of transportation in the police vehicle, however, or in the analogous circumstance here, the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person. To intrude further than a pat-down, the officer must provide additional specific and articulable facts necessitating the additional intrusion.
Here these additional facts were present by reason of the necessity that the campers’ effects accompany the officers and the impossibility of securing them in a place where access was precluded. Thus the officers could go beyond a pat-down of the outer clothing and conduct a similarly limited search of the relevant items. Indeed, even an inquiry into the interior of the pack was permissible when the pat-down of the exterior proved impractical. But once confronted with a purely innocent interior it was again incumbent upon the officers to explain why still further intrusion was required. As to such explanation, the record is silent.
Accordingly, since the contraband was illegally seized in violation of article I, section 13, of the California Constitution, we hold that it was erroneously received in evidence.
[See the excerpt of People v. Brisendine above for the latter half of the opinion, dealing with the autonomous nature of the California Constitution in light of conflicting interpretations of similar provisions in the United States Constitution.]
Bail: Cal. Constitution Art. I sec. 12
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 12. A person shall be released on bail by sufficient sureties, except for: (a) Capital crimes when the facts are evident or the presumption great; (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others; or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. Excessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. A person may be released on his or her own recognizance in the court’s discretion.
Indictment and information
Cal. Constitution Art I secs. 14-14.1
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 14. Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information. A person charged with a felony by complaint subscribed under penalty of perjury and on file in a court in the county where the felony is triable shall be taken without unnecessary delay before a magistrate of that court. The magistrate shall immediately give the defendant a copy of the complaint, inform the defendant of the defendant’s right to counsel, allow the defendant a reasonable time to send for counsel, and on the defendant’s request read the complaint to the defendant. On the defendant’s request the magistrate shall require a peace officer to transmit within the county where the court is located a message to counsel named by defendant. A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.
SEC. 14.1. If a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing.
Hurtado v. California, 110 U.S. 516 (1884)
MATTHEWS, J
The constitution of the state of California adopted in 1879, in article 1, § 8, provides as follows: ‘Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.’ Various provisions of the Penal Code regulate proceedings before the examining and committing magistrate in cases of persons arrested and brought before them upon charges of having committed public offenses. These require, among other things, that the testimony of the witnesses shall be reduced to writing in the form of depositions; and section 872 declares that if it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the depositions an order, signed by him, to that effect, describing the general nature of the offense committed, and ordering that the defendant be held to answer thereto.
In pursuance of the foregoing provision of the constitution, and of the several sections of the Penal Code of California, the district attorney of Sacramento county, on the twentieth day of February, 1882, made and filed an information against the plaintiff in error, charging him with the crime of murder in the killing of one Jose Antonio Stuardo. Upon this information, and without any previous investigation of the cause by any grand jury, the plaintiff in error was arraigned on the twenty-second day of March, 1882, and pleaded not guilty. A trial of the issue was thereafter had, and on May 7, 1882, the jury rendered its verdict, in which it found the plaintiff in error guilty of murder in the first degree. On the fifth day of June, 1882, the superior court of Sacramento county, in which the plaintiff in error had been tried, rendered its judgment upon said verdict, that the said Joseph Hurtado, plaintiff in error, be punished by the infliction of death, and the day of his execution was fixed for the twentieth day of July, 1882. From this judgment an appeal was taken, and the supreme court of the State of California affirmed the judgment.
It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment to the constitution of the United States, which is in these words: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law.’ The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that ‘due process of law,’ when applied to prosecutions for felonies, which is secured and guarantied by this provision of the constitution of the United States, and which accordingly it is forbidden to the states, respectively, to dispense with in the administration of criminal law. The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the states has been imposed by the fourteenth amendment to the constitution of the United States.
The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere [Lat.: “give to each person his (or her) due”.]. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.
In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights, They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general maxims of liberty and justice had in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guaranty, not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.
The natural and obvious inference is that, in the sense of the constitution, ‘due process of law’ was not meant or intended to include the institution and procedure of a grand jury in any case. The conclusion is equally irresistible, that when the same phrase was employed in the fourteenth amendment to restrain the action of the states, it was used in the same sense and with no greater extent; and that if in the adoption of that amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the fifth amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon congress by the constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the fourteenth amendment, by parity of reason, it refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.
It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law. Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.
It is, as we have seen, an ancient proceeding at common law, which might include every case of an offense of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments.
For these reasons, finding no error therein, the judgment of the supreme court of California is affirmed.
Jury trial (both criminal and civil)
Cal. Constitution Art. I sec. 16
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 16. Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.
In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court. In civil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature may provide that the jury shall consist of eight persons or a lesser number agreed on by the parties in open court.
In criminal actions in which a felony is charged, the jury shall consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.
People v. Dean (1974), 38 Cal.App.3d 966
People v. Dean (1974), 38 Cal.App.3d 966, 113 Cal.Rptr. 732
Friedman, J.
In October 1972 the Nevada County grand jury indicted Peter Dean on a charge of possessing marijuana for sale. In November of 1973 we denied Dean’s petition to quash the indictment; we held that the evidence supporting the indictment had been secured by means consistent with the Fourth Amendment. We now confront another phase of the pretrial activity.
One ground for Dean’s superior court attack on the indictment was a claim that the 1972 grand jury had been selected by means which resulted in exclusion or underrepresentation of identifiable classes of the county population: the poor, wage earners or blue collar workers, the young, and women. In support of his claim Dean had subpoenas issued for the 19 members of the 1972 grand jury. The Attorney General entered the case on behalf of the People and moved to quash the subpoenas. An assigned judge heard testimony of Honorable Harold Wolters, the superior court judge of Nevada County, who described his practices in selecting grand jury panels. At the close of the hearing the court refused to quash the subpoenas but ordered the 30 members of the grand jury panel to respond to a questionnaire in lieu of appearing in court. The Attorney General then petitioned this court for a writ of prohibition to restrain the superior court from submitting the questionnaire.
An accused is entitled to inspection and discovery of evidence in the government’s hands, subject to two areas of trial court discretion: discretion to curb disclosures harmful to legitimate governmental interests and discretion to demand a “plausible justification” for the inspection.
Here the subpoenas and questionnaires addressed to the grand jury panel would elicit personal information to facilitate an indicted defendant’s complaint of grand jury selection procedures. The vulnerability of grand jurors and panel members to this kind of inquiry without a counter-balancing inquiry into the defendant’s actual or potential prejudice opens the door to delaying tactics in criminal cases and discourages Californians from undertaking grand jury service.
Dean asserts a constitutional right to a grand jury composed of a representative cross-section of the county population; contends that he is entitled to obtain evidence in an effort to prove that young adults and persons of low income are excluded or underrepresented as a result of the subjective selection methods employed by the single superior court judge of Nevada County who, under California law, conducts the impanelment process.
The deliberate exclusion of Negroes from grand and petit juries in the southern states was the genesis of the present body of constitutional restraints on impanelment procedures. The federal Supreme Court has repeatedly held that a black defendant is denied equal protection if he is indicted or tried by a grand or petit jury from which blacks have been systematically excluded. These decisions formed the foundation for a wider body of doctrine, transcending racial discrimination and demanding general community representation on grand and petit juries. Current criteria [are]: “The rule upon which defendant relies is premised upon the concept an impartial jury must be drawn from a cross-section of the community; is based on the conclusion the systematical and purposeful exclusion from a grand jury of a class of persons in the community denies due process and equal protection of the law; applies only to the exclusion of members of an identifiable group in the; and embraces generally groups identified by race, sex, age, social or economic status, religious belief, educational attainment, political affiliation or geographical background.
As the Attorney General points out, Dean has no right to a grand jury in which all important population components are represented. Weighty authority, moreover, supports the assertion that the accused has the burden of showing “systematic” or “purposeful” discrimination.FN5 A number of courts have thus discounted the significance of statistics bespeaking the socio-economic composition of a single grand jury. Reflecting no more than the age and income levels of a single grand jury, the Nevada County questionnaire is relatively ineffectual to demonstrate systematic, purposeful discrimination against the allegedly excluded or underrepresented groups. We cannot stop at that point, however.
The decisions requiring the accused to show systematic, purposeful discrimination do not square with others which condemn discrimination stemming from negligence or inertia. The latter recognize that official compilers of jury lists may drift into discrimination by not taking affirmative action to prevent it. In formulating a panel for a grand jury endowed with the criminal indictment function, officials must adhere to a standard more stringent than mere abstention from intentional discrimination; they have an affirmative duty to develop and pursue procedures aimed at achieving a fair cross-section of the community.
As a consequence, constitutional attack on grand jury composition may be supported by statistics which demonstrate discriminatory result rather than discriminatory design. However ineffectual to prove discriminatory design, the statistics sought by the Nevada County questionnaire would possess some significance as part of a larger body of data intended to show consistently discriminatory results. At this point the issue of Dean’s standing to challenge the grand jury becomes pivotal.
An accused has standing to charge imbalance of the grand or petit jury only if he is a member of the excluded class or otherwise shows a serious probability of bias. Implicit in the requirement of standing is judicial recognition that an accused may not nullify the criminal proceeding against him for the sake of an abstract claim, even one founded upon the Fourteenth Amendment; rather, he must show some likelihood of injury.
Dean does not claim membership in any of the community segments which are assertedly excluded or underrepresented — the poor, wage earners or blue collar workers, the young, and females. He has an undoubted constitutional right to an impartial grand jury. The likelihood of bias against him or his cause is conjectural, for he shows no difference in decisional outlook between the excluded and included classes. A defendant has no right to a grand or petit jury in which all elements of the population are represented. Dean’s complaint is an abstraction, an assertion that an indictment found by an unrepresentative grand jury is a nullity.
Where racial balance is not in issue, the rule of standing remains unaffected; the accused may not assign discriminatory impanelment practices as a ground of attack on the criminal prosecution unless he is a member of the excluded class or otherwise shows a likelihood of bias
Insistence upon standing as a prerequisite to attack on the indictment does not ignore the community’s interest in fair selection procedures. The California Penal Code’s flaccid directions for grand jury selection contain no effective assurance of broad socio-economic representation. The continued absence of meaningful statutory controls only burdens the courts with repeated attacks on grand jury selection methods. Although an unrepresentative grand jury may not prejudice the individual defendant, it is detrimental to community aspirations and incompatible with the egalitarian aims of the Fourteenth Amendment. When discriminatory methods damage the community and not the accused, a representative lawsuit is available to redress the community’s wrong. To put the matter concretely, California superior court judges are subject to civil process to compel constitutionally sanctioned grand jury selections; only in relatively limited cases will a criminal court provide an appropriate forum. No judicial abdication of constitutional responsibility results when a criminal court rejects the pretrial claim of an accused who shows no justiciable injury.
Constitutional principles protect the privacy of public officials and functionaries against forced disclosures not impelled by public need. True, the Nevada County questionnaires permit anonymity. The right of privacy includes both protection against unwarranted disclosures and protection of one’s control of his personal affairs, that is, the right to be “let alone.” The Nevada County questionnaires interfere with grand jurors’ control over personal financial information without a gossamer possibility of prejudice as a counterweight. In ordering the questionnaires, the trial court abused its discretion by compelling disclosure of the panelists’ personal affairs without any showing of plausible justification on the part of the accused.
Let a writ of prohibition issue restraining the respondent court from submitting the questionnaires to members of the 1972 grand jury panel of Nevada County.
Racial peremptories
People v. Wheeler (1978), 22 Cal.3d 258
People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748
MOSK, Justice
Defendants James Michael Wheeler and Robert Willis appeal from judgments convicting them of murdering Amaury Cedeno, a grocery store owner, in the course of a robbery. We begin with a claim of error arising at the very outset of the trial and infecting the entire remainder of the proceedings. Defendants are both black; the man they were accused of murdering was white; a number of blacks were in the venire summoned to hear the case, were called to the jury box, were questioned on voir dire, and were passed for cause; yet the prosecutor proceeded to strike each and every black from the jury by means of his peremptory challenges, and the jury that finally tried and convicted these defendants was all white. The issue is whether in such circumstances defendants were denied their right to trial by an impartial jury guaranteed by the California Constitution. The question is one of first impression in this court.
Article I, section 16, of the California Constitution declares in relevant part that “Trial by jury is an inviolate right and shall be secured to all . . . .” It is settled that in criminal cases the right so declared includes in this state the right to a unanimous verdict. It is equally settled that the provision includes the right to have that verdict rendered by impartial and unprejudiced jurors. Section 16 of article I does not explicitly guarantee trial by an “impartial” jury, as does the Sixth Amendment to the federal Constitution; but that right is no less implicitly guaranteed by our charter.
In a series of decisions beginning almost four decades ago the United States Supreme Court has held that an essential prerequisite to an impartial jury is that it be drawn from “a representative cross-section of the community.” FN5 The rationale of these decisions, often unstated, is that in our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, and political affiliation; that it is unrealistic to expect jurors to be devoid of opinions, preconceptions, or even deep-rooted biases derived from their life experiences in such groups; and hence that the only practical way to achieve an overall impartiality is to encourage the representation of a variety of such groups on the jury so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.
We have reviewed this line of United States Supreme Court opinions in some detail because we fully agree with the views there expressed as to the importance of the representative cross-section rule, particularly in protecting the constitutional right to an impartial jury.FN7 We rely equally, however, on the law of California. It was not until its 1975 decision in Taylor [v. Louisiana (1975) 419 U.S. 522] that the high federal court imposed the representative cross-section rule on the states as a fundamental component of the Sixth Amendment right to an impartial jury incorporated in the Fourteenth Amendment. In California we had long since adopted that rule.
California, of course, is an integral part of that system and tradition; and as we noted above, our courts have long recognized that the right to an impartial jury is an inseparable element of the jury trial guarantee of article I, section 16, of the California Constitution. Accordingly, we now make explicit what was implicit in White, and hold that in this state the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution.
It therefore becomes the responsibility of our courts to insure that this guarantee not be reduced to a hollow form of words, but remain a vital and effective safeguard of the liberties of California citizens. There are three stages in the jury selection process at which the ideal of a representative cross-section can be seriously compromised. The first is the initial compilation of the “roll of eligible juror candidates” or master list from which, by various steps, the venires are drawn. Secondly, a number of prospective jurors thus selected are disqualified or excused by judges or various court personnel on grounds of competency, suitability, undue hardship, or until recently, occupation. Thirdly, when the case is called for trial the clerk draws the names of veniremen at random from the “trial jury box”, and the parties may exercise their statutory challenges to the jurors thus chosen. Challenges to an individual juror are of two kinds, peremptory and for cause. A peremptory challenge is “an objection to a juror for which no reason need be given, but upon which the Court must exclude him.” A challenge for cause is either “general” the juror is legally incompetent to serve in any case or “particular” the juror is actually or impliedly biased in the specific matter on trial.
To say that peremptories will ordinarily be exercised only in cases of bias, however, does not clarify the kinds of bias upon which the challenge may permissibly be based. In contrast to the limited list of events authorizing a challenge for cause on the ground of implied bias, the law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality.
All of these reasons, nevertheless, share a common element: they seek to eliminate a specific bias as we have defined that term herein a bias relating to the particular case on trial or the parties or witnesses thereto. By the same token, they are essentially neutral with respect to the various groups represented on the venire: the characteristics on which they focus cut across many segments of our society. By contrast, when a party presumes that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds we may call this “group bias” and peremptorily strikes all such persons for that reason alone, he not only upsets the demographic balance of the venire but frustrates the primary purpose of the representative cross-section requirement. That purpose, as we have seen, is to achieve an overall impartiality by allowing the interaction of the diverse beliefs and values the jurors bring from their group experiences. Manifestly if jurors are struck simply because they may hold those very beliefs, such interaction becomes impossible and the jury will be dominated by the conscious or unconscious prejudices of the majority.
We conclude that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution. [But it does not] mean that a party will be entitled to a petit jury that proportionately represents every group in the community: we adhere to the long-settled rule that no litigant has the right to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or indeed is composed of any particular individuals. What it does mean, however, is that a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.
If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. We shall not attempt a compendium of all the ways in which a party may seek to make such a showing. For illustration, however, we mention certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. Upon presentation of this and similar evidence in the absence, of course, of the jury the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone. We recognize that such a ruling “requires trial judges to make difficult and often close judgments. They are in good position to make such determinations, however, on the basis of their knowledge of local conditions and of local prosecutors.”) They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience. We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges from a spurious claim interposed simply for purposes of harassment or delay.
If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone. If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted.
Applying these rules to the record before us, we hold that defendants made a prima facie showing that the prosecutor was exercising peremptory challenges against black jurors on the ground of group bias alone. The trial court therefore erred in ruling that the prosecutor was not required to respond to the allegation, and in denying defendants’ motions without a rebuttal showing by the prosecutor that the challenges were each predicated on grounds of specific bias. The error is prejudicial per se: “The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the Constitution. The judgments must therefore be reversed and the cause remanded for a new trial.
The People nevertheless contend that we are compelled to allow this pernicious practice to continue in our courts by the case of Swain v. Alabama (1965).46 There a black defendant was convicted of rape and sentenced to death by an all-white jury after the prosecutor had struck each of the six blacks on the venire by the equivalent of peremptory challenges. In an opinion concurred in by only five justices the court rejected the defendant’s claim of a violation of the equal protection clause of the Fourteenth Amendment. Because a fundamental safeguard of the California Declaration of Rights is at issue, however, “our first referent is California Law” and divergent decisions of the United States Supreme Court “are to be followed by California courts only when they provide no less protection than is guaranteed by California law.” It is apparent that Swain provides less protection to California residents than the rule we now adopt.
Batson v. Kentucky, 476 U.S. 79 (1986)
Justice POWELL delivered the opinion of the Court.
This case requires us to reexamine that portion of Swain v. Alabama, 380 U.S. 202 (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the petit jury. The jury convicted petitioner on both counts [burglary and receipt of stolen goods]. On appeal to the Supreme Court of Kentucky, petitioner pressed, among other claims, the argument concerning the prosecutor’s use of peremptory challenges. Conceding that Swain v. Alabama apparently foreclosed an equal protection claim based solely on the prosecutor’s conduct in this case, petitioner urged the court to follow decisions of other States, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) and to hold that such conduct violated his rights under the Sixth Amendment and § 11 of the Kentucky Constitution to a jury drawn from a cross section of the community. Petitioner also contended that the facts showed that the prosecutor had engaged in a “pattern” of discriminatory challenges in this case and established an equal protection violation under Swain. The Supreme Court of Kentucky affirmed. In a single paragraph, the court declined petitioner’s invitation to adopt the reasoning of People v. Wheeler. The court observed that it recently had reaffirmed its reliance on Swain, and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire. We granted certiorari, and now reverse.
Purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure. The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. The Constitution requires that we look beyond the face of the statute defining juror qualifications and also consider challenged selection practices to afford “protection against action of the State through its administrative officers in effecting the prohibited discrimination.” Accordingly, the component of the jury selection process at issue here, the State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause.
[In Swain v. Alabama,] the Court sought to accommodate the prosecutor’s historical privilege of peremptory challenge free of judicial control, and the constitutional prohibition on exclusion of persons from jury service on account of race. While the Constitution does not confer a right to peremptory challenges, those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury. To preserve the peremptory nature of the prosecutor’s challenge, the Court in Swain declined to scrutinize his actions in a particular case by relying on a presumption that he properly exercised the State’s challenges. A number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause. Since this interpretation of Swain has placed on defendants a crippling burden of proof,FN17 prosecutors’ peremptory challenges are now largely immune from constitutional scrutiny. For reasons that follow, we reject this evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause.
Since Swain, we have recognized that a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose [citing Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that “permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Since the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case.
In this case, petitioner made a timely objection to the prosecutor’s removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed. [fn. 25]
FN25. To the extent that anything in Swain v. Alabama is contrary to the principles we articulate today, that decision is overruled.
Speedy trial
Cal. Constitution Art I secs. 15, 29
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 15. The defendant in a criminal cause has the right to a speedy public trial, to compel attendance of witnesses in the defendant’s behalf, to have the assistance of counsel for the defendant’s defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant. The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant’s counsel. Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.
SEC. 29. In a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial.
Cardenas v. Superior Court (1961), 56 Cal.2d 273
Cardenas v. Superior Court In and For Los Angeles County (1961), 56 Cal.2d 273, 14 Cal.Rptr. 65
DOOLING, J.
Petitioner seeks a writ of prohibition to prohibit any further proceedings upon an information charging him with the crime of possessing narcotics. [Discussion of factual details at trial omitted.] Once the jury “has been impaneled and sworn jeopardy attaches, and a dismissal of the case, when not authorized by law and without the consent of the defendant, after the jury has been sworn and the trial actually commenced is equivalent to an acquittal of the charge and will constitute former jeopardy on a subsequent trial on the same charge.” [citing Jackson v. Superior Court, (1937), 10 Cal.2d 350, 74 P.2d 243].
Our attention has been called to Gori v. United States, 367 U.S. 364 [1961], wherein a bare majority of the United States Supreme Court held that the granting of a mistrial on the court’s own motion without the defendant’s consent, but for the defendant’s benefit, does not as a matter of law place the defendant in jeopardy under the Fifth Amendment to the United States Constitution. This holding does not accord with the uniform construction placed by this court upon the jeopardy provision of the California Constitution contained in article I, section [15]. As stated in Jackson: “Once the jury is charged with the defendant’s deliverance “his jeopardy is real and he cannot be again subjected to jeopardy unless the jury be discharged without rendering a verdict, by his consent, or upon some legal necessity resulting from physical causes beyond the control of the court.”
Serna v. Superior Court (1985), 40 Cal.3d 23
Serna v. Superior Court
40 Cal.3d 239, 219 Cal.Rptr. 420 (1985)
GRODIN, J.
Petitioner, a defendant in a misdemeanor prosecution [for embezzlement] pending in the Municipal Court for the Los Angeles Judicial District, sought dismissal in that court on grounds that a more than four-year delay between the filing of the complaint and his arrest denied both his state and federal constitutional rights to a speedy trial. [Petitioner sought a writ of mandate from the Superior Court to compel a motion to dismiss in the municipal court. From its denial, he appealed to the California Supreme Court.]
II. California Constitution
“The defendant in a criminal cause has the right to a speedy public trial. …” (Cal. Const., art. I, § 15.) In a misdemeanor prosecution that right attaches under the California Constitution when a criminal complaint is filed. Inasmuch as this petitioner challenged only prearrest delay, not violation of statutory time limits adopted as legislative implementation of the state and federal constitutional speedy trial rights, the question to be decided by the trial court was whether the delay was shown to be unreasonable. Delays in arrest that are necessary for law enforcement purposes, i.e., those occasioned by inability to locate the accused or witnesses, or to conduct further investigation and gather evidence, do not violate the right to speedy trial unless the prosecution is delayed unreasonably. To determine if the delay is unreasonable and the right to speedy trial violated, “the prejudicial effect of the delay on [the accused] must be weighed against any justification for the delay.”
Under recent decisions of this court, the initial burden in establishing a violation of article I, section 15, is on the defendant seeking dismissal who must demonstrate prejudice attributable to the delay in arrest. Only after he has done so must the court determine if the delay was justified and engage in the balancing process.
There is much force in the observation of the Chief Justice that these and other recent decisions accepting this interpretation and application of article I, section 15, appear to have departed from the assumption that the right to speedy trial guaranteed by article I, section 15, is coextensive with that of the Sixth Amendment.
To the extent that the denial of the motion to dismiss was based on a conclusion that petitioner had not demonstrated a cognizable violation of the right to speedy trial guaranteed by article I, section 15, of the California Constitution, we find no error. We therefore conclude that the superior court did not abuse its discretion in denying the petition for writ of mandate and prohibition on this ground.
III Constitution of the United States
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ….” (U.S. Const., 6th Amend.)
[The right to a speedy trial] protects a criminal defendant against oppressive pretrial incarceration, anxiety, concern, and disruption of his everyday life. elays leading to the initiation of formal proceedings may also prejudice the defendant in his ability to defend, for the same reason as delays thereafter — death or disappearance of witnesses, fading memories, and destruction of evidence — but those delays do not violate the Sixth Amendment right to speedy trial, which attaches only upon the filing of an accusatory pleading. Formal charges must be pending. Prearrest delay may give rise to a due process claim, but only delay following formal accusation or delay subsequent to arrest are considered in evaluating a claim under the Sixth Amendment speedy trial clause.
When a delay in bringing a defendant to trial after the filing of formal charges has become presumptively prejudicial, and the defendant seeks dismissal of the charges on grounds that his Sixth Amendment right to a speedy trial has been violated, the court must balance the relevant factors — the length of the delay, the reason for the delay, the defendant’s assertion of the right, and the prejudice to the defendant — in assessing whether the delay has deprived the defendant of that right. The defendant need not establish actual prejudice as a prerequisite to a hearing at which evidence relevant to this balancing process is heard.
Therefore, if a misdemeanor complaint also triggers Sixth Amendment protections a defendant seeking dismissal on grounds that his right to speedy trial has been violated need not demonstrate actual prejudice as a prerequisite to judicial consideration of his claim. We agree that the delay here was presumptively prejudicial. Therefore, although there may be cases in which a defendant is able to demonstrate actual prejudice from delays of shorter duration, he need not do so when the delay exceeds one year. Delays of that magnitude are presumptively prejudicial.
In sum, the People do not offer a persuasive basis on which to avoid what appears to be the controlling impact of the decisions of the United States Supreme Court which hold that the right attaches upon the filing of a formal accusatory pleading. We are persuaded by the repeated reference in decisions of the United States Supreme Court to formal accusation or charge, and by the acceptance of that interpretation of Marion by the courts of other jurisdictions, that the Sixth Amendment right to speedy trial attaches in misdemeanor prosecutions, as it does in felonies, with the filing of the accusatory pleading, here a misdemeanor complaint, or arrest, whichever is first. Therefore, since the more than four-year delay in arresting defendant is beyond question presumptively prejudicial, the municipal court erred in failing to receive evidence on the considerations relevant to the weighing process and to resolve petitioner’s motion to dismiss . . . by weighing the interests of the defendant and the prosecution to determine whether the right was violated in this case.
Bird, C. J., Concurring and Dissenting.
I join in my colleagues’ analysis of the federal constitutional speedy trial right. (However, I would not be so quick to conclude that the state constitutional guarantee offers any less protection to California citizens. I agree that the language of Scherling v. Superior Court (1978) 22 Cal.3d 493 [149 Cal.Rptr. 597, 585 P.2d 21 and its predecessors suggests that an accused must demonstrate that his defense has been prejudiced by a delay before any inquiry need be made into the length or causes of that delay. However, I strongly doubt that this court ever consciously chose to construe the state speedy trial provision to provide less protection against governmental abuse than does the federal Constitutio
On the contrary, the Scherling language appears to have evolved from earlier cases in which the speedy trial right did not apply and in which the due process clause alone was applicable. Those cases incorporated the threshold prejudice requirement into speedy trial claims without considering whether this constituted a step backward from the development of federal law. Nor did they expressly consider whether such a requirement was logically relevant to a claimed speedy trial violation. I would urge my colleagues to reconsider the decision to establish it as a fixed feature of the California constitutional guarantee.
Harmless error
Cal. Constitution Art. VI sec. 13
California Constitution
Article 6 Judicial
Sec. 13. No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
People v. Watson (1956), 46 Cal.2d 818
People v. Watson (1956), 46 Cal.2d 818 [299 P.2d 243]
[This decision, affirming a conviction for second degree murder on the basis of circumstantial evidence, provided the canonical reading of the constitutional “miscarriage of justice” standard currently in Art. VI, § 13. Justice Spence wrote:]
This section, first adopted in 1911 with reference only to criminal cases but amended in 1914 so as to apply as well to civil cases, now reads: “No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Emphasis added.) While it had long been provided in our statutory law that judgments would not be reversed because of technical errors or defects which did not affect the substantial rights of the defendant, the courts nevertheless in reviewing convictions in criminal cases had generally followed the rule that prejudice would be presumed from error and upon that basis the defendant was “entitled to a reversal of the judgment.” The constitutional amendment added a new concept calling for a determination by the court that the alleged error resulted in “a miscarriage of justice.” To this end the appellate court was required to review the evidence so as to form an “opinion” as to whether the assigned errors had affected the outcome of the case resulting in “a miscarriage of justice.”
The controlling consideration in applying the section is whether the error has resulted in a “miscarriage of justice.” In determining the meaning of this phrase, the reviewing courts have stated the test to be applied in varying language. Emphasis in the main, however, has been placed on the constitutional requirements of a fair trial and due process, which emphasis is found in decisions resulting in reversals as well as in decisions resulting in affirmances.
Giving due consideration to the varying language heretofore employed in relating the constitutional amendment to the particular situations involved, it appears that the test generally applicable may be stated as follows: That a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. Phrasing the test in this language avoids any complexity which may be said to result from the language employed in the double negative approach, and such phrasing seems to coincide with the affirmative language used in the constitutional provision. We are of the view, however, that the test as above stated does not constitute a departure from the tests heretofore applied, but is merely a crystallization in affirmative form of the guiding principle which the courts have sought to enunciate in phrasing the test in other language. For example, the application of the double negative approach, as stated in some of the recent decisions, presupposes that a reversal will result only when there exists, in the opinion of the court, at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error has affected the result. But the fact that there exists at least such an equal balance of reasonable probabilities necessarily means that the court is of the opinion “that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” Thus, it appears that the tests, as variously stated, are not fundamentally different but, on the contrary, are essentially the same. Nevertheless, the test, as stated in any of the several ways, must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.
Chapman v. California, 386 U.S. 18 (1967)
[Contrast the federal harmless error rule, as stated by Justice Hugo Black in Chapman v. California, 386 U.S. 18, 21-24 (1967)
We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for ‘errors or defects which do not affect the substantial rights of the parties.’47 None of these rules on its face distinguishes between federal constitutional errors and errors of state law or federal statutes and rules. All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.
The federal rule emphasizes ‘substantial rights’ as do most others. The California constitutional rule emphasizes ‘a miscarriage of justice,’6 but the California courts have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court’s view of ‘overwhelming evidence.’7 We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85 (1963). There we said: ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” There is little, if any, difference between our statement in Fahy about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.]
People v. Cahill (1993), 5 Cal.4th 478
People v. Cahill (1993), 5 Cal.4th 478, 853 P.2d 103
For a number of years, decisions of both the United States Supreme Court and this court have held that whenever a “coerced” or “involuntary” confession has been received in evidence at a criminal trial, “automatic reversal” of the conviction is required, without regard to the strength of the additional evidence received, unrelated to the confession, that tends to establish the defendant’s guilt. In Arizona v. Fulminante (1991) 499 U.S. 279, (hereafter Fulminante ), however, a majority of the United States Supreme Court, in reconsidering the soundness of applying a reversible-per-se rule to the erroneous admission of an involuntary confession FN1 as a matter of federal constitutional law, concluded that the prejudice caused by the erroneous admission of such a confession properly could and should be evaluated, for purposes of the federal Constitution, under the harmless-beyond-a-reasonable-doubt test 48 that is applied to virtually all other types of federal constitutional “trial error.” Thus, under Fulminante, a state court, without violating the federal Constitution, now may affirm a conviction despite the erroneous admission of an involuntary confession, when the trial record establishes that the admission of the confession was harmless beyond a reasonable doubt. In this case, we must determine whether, notwithstanding this recent change in federal law, California law compels the automatic reversal of a conviction whenever an involuntary confession has been admitted at trial, or whether, under appropriate circumstances, such error may be considered harmless under state law.
[Defendant was convicted of numerous crimes. The California Court of Appeal reversed his murder convictions because it considered his confession involuntary.] The Attorney General, on behalf of the People, sought review, and, while the petition for review was pending, the United States Supreme Court rendered its decision in Fulminante. As noted, in Fulminante a majority of the United States Supreme Court overruled a line of that court’s decisions that had applied a reversible-per-se or automatic-reversal rule to cases in which an involuntary confession had been admitted at trial, and concluded instead that the erroneous admission of an involuntary confession should be evaluated under the federal “harmless-beyond-a-reasonable-doubt” standard that, in a substantial number of recent United States Supreme Court decisions, had been held applicable to other constitutional “trial errors.” [After the Court of Appeal again reversed,] we granted the People’s subsequent petition for review, specifically limiting the issue to be argued before our court “to whether the state Constitution compels automatic reversal where a trial court erroneously admits defendant’s coerced confession.”
[Fulminante concluded that admission of an involuntary confession] properly should be treated as a “trial error,” subject to the ordinary federal harmless-error test of Chapman v. California, rather than as a “structural defect” that affects the framework within which the trial proceeds, and that — as not properly subject to federal harmless-error analysis — is considered reversible per se. Accordingly, under Fulminante, a state appellate court, without violating the federal Constitution, now may affirm a conviction despite the erroneous admission of a coerced confession, if the court determines that the admission of the confession was harmless beyond a reasonable doubt.
The question before us is whether California law, independent of federal constitutional requirements, compels the automatic reversal of a conviction whenever a coerced confession erroneously has been admitted at a criminal trial. In resolving the issue of the proper prejudicial error standard under California law, we begin with the governing California constitutional provision. Unlike the United States Constitution, which includes no provision relating to reversible error, the California Constitution contains a specific provision addressed to this subject, article VI, section 13.
Accordingly, the issue presented by this case is whether, under California law, the admission at trial of a coerced confession is the kind of error, such as the denial of a jury trial, that results in a “miscarriage of justice” under article VI, section 13, without regard to the nature and strength of the additional evidence presented at trial, or whether, like most trial errors (including constitutional errors), the question whether the erroneous admission of such a confession warrants reversal under article VI, section 13, properly must be determined with due regard to all of the evidence received at trial.
At least by the mid–1960’s, this court had adopted the position that a reversible-per-se rule applied to the erroneous admission of confessions as a matter of state law, independent of any federal compulsion. The Fulminante decision does provide us with an appropriate opportunity to reconsider the validity of the reversible-per-se rule as a matter of California law. Although, as we have seen, the past California decisions applied a rule of automatic reversal as a matter of state law, those California decisions did not adopt such a state rule in the face of a contrary federal harmless error rule, but rather embraced that rule on the understanding that such a rule was consistent with the governing federal rule. Now that the federal high court has established in Fulminante that a rule of automatic reversal is not compelled by the federal Constitution, we consider it appropriate to reconsider whether such automatic reversal is mandated under the state Constitution.
Although the improper admission of a confession is likely to be prejudicial in many cases, that consequence does not, in our view, justify the judicial adoption of a state-law rule that automatically and monolithically treats all improperly admitted confessions as requiring reversal of the defendant’s conviction; the California constitutional reversible-error provision was adopted for the specific purpose of eliminating just such a prophylactic approach to reversible error.
The reversible-per-se rule is basically incompatible with the precepts of the California constitutional provision that addresses the matter of reversible error. Unlike the former federal automatic-reversal rule that was believed justified as a necessary means of deterring illegal police conduct, the California reversible-per-se rule never was grounded on a deterrence rationale.
Accordingly, for the reasons discussed above, we overrule the line of California decisions holding that the erroneous admission of a coerced confession is reversible per se under California law. The prejudicial effect of such error is to be determined, for purposes of California law, under the generally applicable reasonable-probability test embodied in article VI, section 13, of the California Constitution. Of course, because the Watson standard is less demanding than the harmless-beyond-a-reasonable-doubt standard mandated by the applicable federal constitutional authorities , whenever a confession admitted in a California trial has been obtained by means that render the confession inadmissible under the federal Constitution, the prejudicial effect of the confession must be determined under the federal standard.
The judgment of the Court of Appeal is reversed insofar as it holds that the erroneous admission of defendant’s involuntary confession automatically required reversal of his murder-related convictions, and the matter is remanded to the Court of Appeal for further proceedings consistent with the views expressed in this opinion.
[In Cassim v. Allstate Ins. Co. (2004), 33 Cal.4th 780, 94 P.3d 513, the California Supreme Court held that the Watson/Cahill reasonable probability test applies to civil as well as criminal trials.]
Three strikes
Lockyer v. Andrade, 538 U.S. 63 (2003)
Justice O’CONNOR delivered the opinion of the Court.
This case raises the issue whether the United States Court of Appeals for the Ninth Circuit erred in ruling that the California Court of Appeal’s decision affirming Leandro Andrade’s two consecutive terms of 25 years to life in prison for a “third strike” conviction is contrary to, or an unreasonable application of, clearly established federal law as determined by this Court within the meaning of 28 U.S.C. § 2254(d)(1).49
[Respondent Andrade had a criminal record comprising five misdemeanor and felony convictions. He shoplifted videotapes valued at $84.70 and $68.84 to support a heroin habit. Justice O’Connor explained the nature of his conviction and sentencing for these offenses:] Because of his 1990 misdemeanor conviction, the State charged Andrade in this case with two counts of petty theft with a prior conviction. Under California law, petty theft with a prior conviction is a so-called “wobbler” offense because it is punishable either as a misdemeanor or as a felony. The decision to prosecute petty theft with a prior conviction as a misdemeanor or as a felony is in the discretion of the prosecutor. The trial court also has discretion to reduce the charge to a misdemeanor at the time of sentencing.
Under California’s three strikes law, any felony can constitute the third strike, and thus can subject a defendant to a term of 25 years to life in prison. In this case, the prosecutor decided to charge the two counts of theft as felonies rather than misdemeanors. As a consequence, each of Andrade’s convictions for theft triggered a separate application of the three strikes law. Pursuant to California law, the judge sentenced Andrade to two consecutive terms of 25 years to life in prison.
Andrade’s argument in this Court is that two consecutive terms of 25 years to life for stealing approximately $150 in videotapes is grossly disproportionate in violation of the Eighth Amendment. [Note that this argument is based on the Eighth Amendment, not California’s cruel or unusual punishment constitutional provision.]
Through the thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as “clearly established” under § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years. [However,] our cases exhibit a lack of clarity regarding what factors may indicate gross disproportionality. Thus, in this case, the only relevant clearly established law amenable to the “contrary to” or “unreasonable application of” framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the “exceedingly rare” and “extreme” case.
The final question is whether the California Court of Appeal’s decision affirming Andrade’s sentence is “contrary to, or involved an unreasonable application of,” this clearly established gross disproportionality principle. The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle for § 2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade’s sentence of two consecutive terms of 25 years to life in prison.
The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle for § 2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade’s sentence of two consecutive terms of 25 years to life in prison.
The judgment of the United States Court of Appeals for the Ninth Circuit, accordingly, is reversed.
[Justice David Souter observed in his dissent that:] it helps to recall the basic difficulty inherent in proportionality review. We require the comparison of offense and penalty to disclose a truly gross disproportionality before the constitutional limit is passed, in large part because we believe that legislatures are institutionally equipped with better judgment than courts in deciding what penalty is merited by particular behavior. In this case, however, a court is substantially aided in its reviewing function by two determinations made by the State itself.
The first is the State’s adoption of a particular penological theory as its principal reason for shutting a three-strikes defendant away for at least 25 years. Although the State alludes in passing to retribution or deterrence, its only serious justification for the 25-year minimum treats the sentence as a way to incapacitate a given defendant from further crime; the underlying theory is the need to protect the public from a danger demonstrated by the prior record of violent and serious crime. The State, in other words, has not chosen 25 to life because of the inherent moral or social reprehensibility of the triggering offense in isolation; the triggering offense is treated so seriously, rather, because of its confirmation of the defendant’s danger to society and the need to counter his threat with incapacitation. As to the length of incapacitation, the State has made a second helpful determination, that the public risk or danger posed by someone with the specified predicate record is generally addressed by incapacitation for 25 years before parole eligibility. The three-strikes law, in sum, responds to a condition of the defendant shown by his prior felony record, his danger to society, and it reflects a judgment that 25 years of incapacitation prior to parole eligibility is appropriate when a defendant exhibiting such a condition commits another felony.]
Victims’ Bill of Rights
Cal. Constitution Art. 1 sec. 28
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 28. (a) The People of the State of California find and declare all of the following:
(1) Criminal activity has a serious impact on the citizens of California. The rights of victims of crime and their families in criminal prosecutions are a subject of grave statewide concern.
(2) Victims of crime are entitled to have the criminal justice system view criminal acts as serious threats to the safety and welfare of the people of California. The enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system fully protecting those rights and ensuring that crime victims are treated with respect and dignity, is a matter of high public importance. California’s victims of crime are largely dependent upon the proper functioning of government, upon the criminal justice system and upon the expeditious enforcement of the rights of victims of crime described herein, in order to protect the public safety and to secure justice when the public safety has been compromised by criminal activity.
(3) The rights of victims pervade the criminal justice system. These rights include personally held and enforceable rights described in paragraphs (1) through (17) of subdivision (b). (4) The rights of victims also include broader shared collective rights that are held in common with all of the People of the State of California and that are enforceable through the enactment of laws and through good-faith efforts and actions of California’s elected, appointed, and publicly employed officials. These rights encompass the expectation shared with all of the people of California that persons who commit felonious acts causing injury to innocent victims will be appropriately and thoroughly investigated, appropriately detained in custody, brought before the courts of California even if arrested outside the State, tried by the courts in a timely manner, sentenced, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance.
(5) Victims of crime have a collectively shared right to expect that persons convicted of committing criminal acts are sufficiently punished in both the manner and the length of the sentences imposed by the courts of the State of California. This right includes the right to expect that the punitive and deterrent effect of custodial sentences imposed by the courts will not be undercut or diminished by the granting of rights and privileges to prisoners that are not required by any provision of the United States Constitution or by the laws of this State to be granted to any person incarcerated in a penal or other custodial facility in this State as a punishment or correction for the commission of a crime. (6) Victims of crime are entitled to finality in their criminal cases. Lengthy appeals and other post-judgment proceedings that challenge criminal convictions, frequent and difficult parole hearings that threaten to release criminal offenders, and the ongoing threat that the sentences of criminal wrongdoers will be reduced, prolong the suffering of crime victims for many years after the crimes themselves have been perpetrated. This prolonged suffering of crime victims and their families must come to an end.
(7) Finally, the People find and declare that the right to public safety extends to public and private primary, elementary, junior high, and senior high school, and community college, California State University, University of California, and private college and university campuses, where students and staff have the right to be safe and secure in their persons. (8) To accomplish the goals it is necessary that the laws of California relating to the criminal justice process be amended in order to protect the legitimate rights of victims of crime.
(b) In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights:
(1) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.
(2) To be reasonably protected from the defendant and persons acting on behalf of the defendant.
(3) To have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.
(4) To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.
(5) To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.
(6) To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case.
(7) To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.
(8) To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue. (9) To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.
(10) To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.
(11) To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law.
(12) To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.
(13) To restitution. (A) It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. (B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. (C) All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.
(14) To the prompt return of property when no longer needed as evidence.
(15) To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender.
(16) To have the safety of the victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made.
(17) To be informed of the rights enumerated in paragraphs (1) through (16).
(c) (1) A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request. (2) This section does not create any cause of action for compensation or damages against the State, any political subdivision of the State, any officer, employee, or agent of the State or of any of its political subdivisions, or any officer or employee of the court.
(d) The granting of these rights to victims shall not be construed to deny or disparage other rights possessed by victims. The court in its discretion may extend the right to be heard at sentencing to any person harmed by the defendant. The parole authority shall extend the right to be heard at a parole hearing to any person harmed by the offender.
(e) As used in this section, a “victim” is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated. The term “victim” does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.
(f) In addition to the enumerated rights provided in subdivision (b) that are personally enforceable by victims as provided in subdivision (c), victims of crime have additional rights that are shared with all of the People of the State of California. These collectively held rights include, but are not limited to, the following:
(1) Right to Safe Schools. All students and staff of public primary, elementary, junior high, and senior high schools, and community colleges, colleges, and universities have the inalienable right to attend campuses which are safe, secure and peaceful.
(2) Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.
(3) Public Safety Bail. A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations. A person may be released on his or her own recognizance in the court’s discretion, subject to the same factors considered in setting bail. Before any person arrested for a serious felony may be released on bail, a hearing may be held before the magistrate or judge, and the prosecuting attorney and the victim shall be given notice and reasonable opportunity to be heard on the matter. When a judge or magistrate grants or denies bail or release on a person’s own recognizance, the reasons for that decision shall be stated in the record and included in the court’s minutes.
(4) Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.
(5) Truth in Sentencing. Sentences that are individually imposed upon convicted criminal wrongdoers based upon the facts and circumstances surrounding their cases shall be carried out in compliance with the courts’ sentencing orders, and shall not be substantially diminished by early release policies intended to alleviate overcrowding in custodial facilities. The legislative branch shall ensure sufficient funding to adequately house inmates for the full terms of their sentences, except for statutorily authorized credits which reduce those sentences.
(6) Reform of the parole process. The current process for parole hearings is excessive, especially in cases in which the defendant has been convicted of murder. The parole hearing process must be reformed for the benefit of crime victims.
(g) As used in this article, the term “serious felony” is any crime defined in subdivision (c) of Section 1192.7 of the Penal Code, or any successor statute.
Candace McCoy, “Crime as Bogeyman,” in G. Alan Tarr, ed., Constitutional Politics in the States
Incarceration
Michelle Alexander, The New Jim Crow
Cruel or unusual punishment
In re Lynch (1972), 8 Cal.3d 410
In re Lynch (1972), 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921
MOSK, J.
One who commits an act of indecent exposure in California is guilty of a simple misdemeanor and can be punished by no more than a brief jail sentence or a small fine. If he commits the identical act a second time, however, the law declares him guilty of a felony and inflicts on him a punishment of imprisonment in the state prison for the indeterminate period of one year to life.2 We adjudicate here the question whether the aggravated penalty for second-offense indecent exposure provided by Penal Code section 314 violates the prohibition of the California Constitution against cruel or unusual punishments. We conclude that the penalty offends the Constitution in the respect charged, and petitioner is therefore entitled to relief.
We inquire, first, whether petitioner’s indeterminate sentence under the 1967 conviction constitutes cruel or unusual punishment within the meaning of the California Constitution. We approach this issue with full awareness of and respect for the distinct roles of the Legislature and the courts in such an undertaking. We recognize that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone. Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights. It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition.
The operating features of the California indeterminate sentence law are well known, and need only be summarized here. Under this system3 the Legislature prescribes both the minimum and the maximum terms for each offense punishable by imprisonment in the state prison. Upon conviction of such an offense, and if neither a new trial nor probation is granted, the trial court does not specify the length of imprisonment but simply sentences the defendant for the term “prescribed by law.” It is the Adult Authority, an administrative agency within the Department of Corrections, which thereafter determines within statutory limits the length of the term the defendant will actually be required to serve.
For each of the above reasons we conclude that when a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit, regardless of whether a lesser term may be fixed in his particular case by the Adult Authority
Applying this test to the proceeding before us, we see that for second-offense indecent exposure section 314 prescribes a punishment of imprisonment in the state prison for “not less than one year.” In confirmation of the unmistakable meaning of that phrase, Penal Code section 671 provides that “Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, punishment of such offender shall be imprisonment during his natural life,” subject to the provisions of the indeterminate sentence law. For present purposes, therefore, we deem this petitioner to be serving a sentence of life imprisonment.
Petitioner urges . . . that a life sentence for indecent exposure is cruel or unusual punishment under the California Constitution because it is grossly disproportionate to the offense. No California court has yet held a statutory penalty unconstitutional on the ground it is disproportionate to the crime committed. The rule has been recognized, however, in several opinions considering the constitutionality of the death penalty. Thus in In re Finley (1905) 1 Cal.App. 198, 202 [81 P. 1041], the court stated that a punishment may be denounced as unusual in the constitutional sense only when it “is out of all proportion to the offense, and is beyond question an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances” (italics omitted). In People v. Oppenheimer (1909) 156 Cal. 733, 737 [106 P. 74], the court reasoned that the infliction of the death penalty by ordinary methods is not cruel or unusual punishment “unless perhaps it be so disproportionate to the offense for which it is inflicted as to meet the disapproval and condemnation of the conscience and reason of men generally, ‘as to shock the moral sense of the people.”’ And in People v. Anderson (1972), 6 Cal.3d 628, we recognized that “punishment of excessive severity for ordinary offenses” may be both cruel and unusual.
Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty “out of all proportion to the offense,” i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.
We conclude that in California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity
Viewing the total disparity between the life-maximum sentence currently inflicted by section 314 for second-offense indecent exposure and the far lighter penalties in force in California and elsewhere, we conclude with Justice McKenna in Weems [v. United States (1910)] that “this contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.”
The question of relief remains. If petitioner’s offense is treated as a misdemeanor, he has long since served his time. If it is treated as a felony, section 314 no longer prescribes a valid punishment; and if no provision is made for punishment in a statute declaring a felony, the offense is “punishable by imprisonment in any of the state prisons, not exceeding five years”. Petitioner has now served more than five years, and is therefore entitled to his freedom.
The writ is granted and petitioner is ordered discharged from custody.
Death penalty
People v. Anderson
People v. Anderson (1972), 6 Cal.3d 628, 493 P.2d 880
WRIGHT, Chief Justice.
A jury found Robert Page Anderson guilty of first degree murder, the attempted murder of three men, and first degree robbery and fixed the penalty at death for the murder. The judgment was affirmed.
The California Constitution
Before undertaking to examine the constitutionality of capital punishment in light of contemporary standards, it is instructive to note that article I, section 6, of the California Constitution,FN2 unlike the Eighth Amendment to the United States Constitution,FN3 prohibits the infliction of cruel Or unusual punishments. Thus, the California Constitution prohibits imposition of the death penalty if, judged by contemporary standards, it is either cruel or has become an unusual punishment.
Some commentators have suggested that the reach of the Eighth Amendment and that of article I, section 6, are coextensive, and that the use of the disjunctive form in the latter is insignificant.FN4 Our review of the history of the California provision persuades us, however, that the delegates to the Constitutional Convention of 1849, who first adopted the section which was later incorporated into the Constitution of 1879, were aware of the significance of the disjunctive form and that its use was purposeful.
The fact that the majority of constitutional models to which the [1849] delegates had access prohibited cruel or unusual punishment, and that many of these models reflected a concern on the part of their drafters not only that cruel punishments be prohibited, but that disproportionate and unusual punishments also be independently proscribed, persuades us that the delegates modified the California provision before adoption to substitute the disjunctive ‘or’ for the conjunctive ‘and’ in order to establish their intent that both cruel punishments and unusual punishmentsFN17 be outlawed in this state.
The Judicial Function
Having determined that under the California Constitution capital punishment is prohibited if it is either a cruel or an unusual punishment, and that no constitutional impediment exists to restrain our examination of the death penalty in light of contemporary standards, we must also define the role of the courts in giving effect to the cruel or unusual punishments clause of article I, section 6.
The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority. It is the function of the court to examine legislative acts in light of such constitutional mandates to ensure that the promise of the Declaration of Rights is a reality to the individual.
Respondent, while conceding the power and responsibility of the court to review penal statutes in light of article I, section 6, urges that we must accept as controlling indicia of contemporary civilized standards of decency both legislative acts creating new capital crimes and legislative acquiescence in the continuation of capital punishment. Although we accord great deference to the judgment of the Legislature in this respect, we would abdicate our responsibility to examine independently the question were our inquiry to begin and end with the fact that statutory provisions authorizing imposition of the death penalty have been recently enacted or continue to exist.
The Constitutionality of Capital Punishment Today
Well over a century has now passed since the day when vigilante justice and public hangings made executions an accepted practice of California life. We cannot today assume, as it was assumed in early opinions of this court, that capital punishment is not so cruel as to offend contemporary standards of decency. Appellant has asked that we not only reexamine the validity of the prior bases upon which the death penalty has been upheld, but that we independently examine its cruelty applying contemporary standards. As we shall discuss at greater length below, we have done so and have concluded that capital punishment is ‘cruel’ as that term is understood in its constitutional sense. We have also, at the instance of both appellant and respondent, reexamined the bases upon which capital punishment has been upheld heretofore. As will appear, we have concluded that the death penalty cannot be justified as furthering any of the accepted purposes of punishment. Moreover, we have concluded that it can no longer escape characterization as an ‘unusual’ punishment.
It merits emphasis that in assessing the cruelty of capital punishment under article I, section 6, we are not concerned only with the ‘mere extinguishment of life,’ which the United States Supreme Court has suggested does not violate the Eighth Amendment50 or with a particular method of execution, but with the total impact of capital punishment, from the pronouncement of the judgment of death through the execution itself, both on the individual and on the society which sanctions its use. Our concern is that the execution which ultimately follows pronouncement of the death sentence has in fact become the ‘lingering death’ which the Kemmler court conceded would be cruel in the constitutional sense.
Historical analysis suggests that the framers intended to outlaw both cruel punishments and punishments of excessive severity for ordinary offenses. They used the term cruel in its ordinary meaning — causing physical pain or mental anguish of an inhumane or torturous nature. The framers of the California Constitution sought to restrict their fellow Californians’ zeal for devising novel and torturous punishments.
We are mindful, too, that article I, section 6, like the Eighth Amendment, is not a static document. Judgments of the nineteenth century as to what constitutes cruelty cannot bind us in considering this question any more than eighteenth century concepts limit application of the Eighth Amendment. Were the standards of another age the constitutional measure of ‘cruelty’ today, whipping, branding, pillorying, severing or nailing ears, and boring of the tongue, all of which were once practiced as forms of punishment in this country, might escape constitutional proscription, but none today *648 would argue that they are not ‘cruel’ punishments. Thus, although respondent argues that the standard of cruelty today is no different from what it was when article I, section 6, was adopted, our responsibility demands that we must construe that provision in accordance with contemporary standards. The framers of our Constitution, like those who drafted the Bill of Rights, anticipated that interpretation of the cruel or unusual punishments clause would not be static but that the clause would be applied consistently with the standards of the age in which the questioned punishment was sought to be inflicted.
Respondent also contends, however, that capital punishment does not offend contemporary standards of decency. The People find evidence that it does not do so in public opinion polls, in the willingness of juries to impose the death penalty, and in the statutes of the 41 states which contain provisions for the punishment of death. Public acceptance of capital punishment is a relevant but not controlling factor in assessing whether it is consonant with contemporary standards of decency. But public acceptance cannot be measured by the existence of death penalty statutes or by the fact that some juries impose death on criminal defendants. Nor are public opinion polls about a process which is far removed from the experience of those responding helpful in determining whether capital punishment would be acceptable to an informed public were it even-handedly applied to a substantial proportion of the persons potentially subject to execution. Although death penalty statutes do remain on the books of many jurisdictions, and public opinion polls show opinion to be divided as to capital punishment as an abstract proposition, the infrequency of its actual application suggests that among those persons called upon to actually impose or carry out the death penalty it is being repudiated with ever increasing frequency.
The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto,FN36 but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. FN37 Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.FN38 Respondent concedes the fact of lengthy delays between the pronouncement of the judgment of death and the actual execution, but suggests that these delays are acceptable because they often occur at the instance of the condemned prisoner. We reject this suggestion. An appellant’s insistence on receiving the benefits of appellate review of the judgment condemning him to death does not render the lengthy period of impending execution any less torturous or exempt such cruelty from constitutional proscription.
The dignity of man, the individual and the society as a whole, is today demeaned by our continued practice of capital punishment. Judged by contemporary standards of decency, capital punishment is impermissibly cruel. It is being increasingly rejected by society and is now almost wholly repudiated by those most familiar with its processes. Measured by the ‘evolving standards of decency that mark the progress of a maturing society,’ capital punishment is, therefore, cruel within the meaning of article I, section 6, of the California Constitution.
In seeking to justify continuance of capital punishment, the People argue that it furthers three of the four acknowledged purposes of punishment. Respondent concedes that death is in no way rehabilitative, but contends that capital punishment may be legitimately imposed in retribution for serious offenses, that it serves to isolate the offender, and that the existence of the death penalty acts as a deterrent to crime. None of these purposes is shown to justify so onerous a penalty as death.
We are fully aware that many condemned prisoners have committed crimes of the utmost cruelty and depravity and that such persons are not entitled to the slightest sympathy from society in the administration of justice or otherwise. Nevertheless, it is incompatible with the dignity of an enlightened society to attempt to justify the taking of life for purposes of vengeance.
Admittedly, isolation of the offender from society is a proper and often necessary goal of punishment and death does effectively serve that purpose. Society can be protected from convicted criminals, however, by far less onerous means than execution. In no sense can capital punishment be justified as ‘necessary’ to isolate the offender from society.
Respondent contends that the existence of the death penalty may 2 deter some persons from committing capital offenses. We have recognized that whether a substantial deterrent effect can be proven is a vigorously disputed proposition. A punishment as extreme and as irrevocable as death cannot be predicated upon speculation as to what the deterrent effect might be if it were actually applied swiftly and with certainty upon all who were potentially subject to it. As stated previously, in reality today it is neither swift nor certain. Respondent offers us no basis upon which to conclude that, as presently administered, capital punishment is any greater deterrent to crime than are other available forms of punishment.
Capital Punishment is an Unusual Punishment
We have already noted that the death sentence is rarely imposed in California today and that it is even more rarely carried out. But even adopting the broader test of widespread acceptance among civilized peoples, capital punishment can no longer withstand constitutional proscription. Respondent seeks to avoid this conclusion by suggesting that a punishment is not unusual in the constitutional sense unless it is unusual as to form, or method by which it is imposed. We cannot accept this limitation of the meaning of ‘unusual’, however, for to do so would ignore the fact that execution is a form or method of punishment and would embroil us in future*654 semantic disputes as to whether innovative types of punishment were unconstitutionally ‘unusual’ forms of punishment.
We have concluded that capital punishment is unconstitutionally cruel and that under article I, section 6, a cruel punishment is proscribed irrespective of whether it is excessive. If any doubt remained as to its cruelty, however, we could no longer uphold capital punishment on the ground that it is commonly accepted, for the repudiation of the death penalty in this country is reflected in a world-wide trend towards abolition.
Conclusion
We have concluded that capital punishment is impermissibly cruel. It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process. Our conclusion that the death penalty may no longer be exacted in California consistently with article I, section 6, of our Constitution is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members. Lord Chancellor Gardiner reminded the House of Lords, debating abolition of capital punishment in England: ‘When we abolished the punishment for treason that you should be hanged, and then cut down while still alive, and then disembowelled while still alive, and then quartered, we did not abolish that punishment because we sympathised with traitors, but because we took the view that it was a punishment no longer consistent with our self respect.’
Insofar as Penal Code sections 190 and 190.1 purport to authorize the imposition of the death penalty, they are, accordingly, unconstitutional. In view of our decision that the death penalty may not be carried out, it is unnecessary to reach petitioner’s other contentions relating to the validity of the penalty judgment.
The judgment, insofar as it provides for the penalty of death, is modified to provide a punishment of life imprisonment and as so modified is affirmed in all other respects. [The Court held that its decision was retroactive, applying to all 108 persons then under sentence of death in California.]
[The United States Supreme Court denied cert sub nom. California v. Anderson, 406 U.S. 958 (1972).]
California Constitution, Art. I, sec. 27
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 27. All statutes of this State in effect on February 17, 1972, requiring, authorizing, imposing, or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative, or referendum. The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.
[This provision was adopted by the People in an initiative measure, Prop 17, in 1972.]
Jones v. Chappell, 31 F.Supp.3d 1050 (C.D. Cal. 2014)
CORMAC J. CARNEY, District Judge.
On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.
That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
BACKGROUND
A. Delay in California’s Death Penalty System
California juries have imposed the death sentence on more than 900 individuals since 1978. Yet only 13 of those 900 have been executed by the State. Of the remainder, 94 have died of causes other than execution by the State, 39 were granted relief from their death sentence by the federal courts and have not been resentenced to death, and 748 are currently on Death Row, having their death sentence evaluated by the courts or awaiting their execution.
The simplest explanation for the size of California’s Death Row is that in each year since 1978, more individuals have been sentenced to death than have been removed from Death Row. For those whose challenge to the State’s death sentence is ultimately denied at each level of review, the process will likely take 25 years or more.
B. The Nature of Delay in California’s System
The nature of the delay in California’s administration of its death penalty system has been comprehensively studied, including by the State itself. In 2004, the California State Legislature established the California Commission on the Fair Administration of Justice (the “Commission”), and tasked it with conducting a comprehensive review of the State’s justice system, including its administration of the death penalty. The Commission, a bipartisan panel which was composed of prosecutors, criminal defense attorneys, law enforcement officials, academics, representatives of victim’s rights organizations, elected officials, and a judge, issued its Final Report in June 2008. Its conclusion was a stern indictment of the State’s death penalty system: “California’s death penalty system is dysfunctional. The system is plagued with excessive delay in the appointments of counsel for direct appeals and habeas corpus petitions, and a severe backlog in the review of appeals and habeas petitions before the California Supreme Court.”
1. Delay on Direct Appeal
In California’s death penalty system, delay sets in at the first step of post-conviction review—direct appeal. California law mandates that after a death sentence is imposed, it must be automatically appealed to the California Supreme Court for review. This delay is likely due to the severe shortage of qualified attorneys available to accept appointment as counsel on direct appeal. To be appointed, attorneys must have at least four years of active law practice, experience in felony appeals, completion of training, and demonstrated proficiency in appellate skills.
2. Delay on State Collateral Review
Whereas on direct review the inmate challenges issues raised at the trial and sentencing, on collateral review the inmate may attack the legality of his confinement based on issues that normally cannot be determined in the direct appeal process, including claims of ineffective assistance of counsel at trial. As on direct appeal, indigent Death Row inmates are entitled to the assistance of state-appointed counsel to pursue their habeas petitions. The Commission found in 2008 that, far from meeting the California Supreme Court’s ideal, habeas counsel is generally not appointed until between eight and ten years after the imposition of the death sentence.
3. Delay on Federal Collateral Review
When an inmate’s state habeas petition is denied, the inmate may seek relief in federal court by alleging that the State has violated his federal constitutional rights. Federal habeas proceedings are significantly affected by the habeas proceedings before the state court. Federal courts are generally limited in their review by the legal and factual determinations of the state court. Moreover, if an inmate discovers new facts in the federal proceeding that were not before the California Supreme Court when it decided the state habeas petition, that inmate must generally halt the federal proceeding and return to the California Supreme Court by way of an exhaustion petition to present to it the new facts and exhaust the state remedy. As of 2008, the complete federal habeas review process, including initial review by the district court, appeal to the Ninth Circuit, and possible petitions for en banc and Supreme Court review, took an average of 10.4 years.
ANALYSIS
The Eighth Amendment prohibits the imposition of cruel and unusual punishment by the state. Although reasonable people may debate whether the death penalty offends that proscription, no rational person can question that the execution of an individual carries with it the solemn obligation of the government to ensure that the punishment is not arbitrarily imposed and that it furthers the interests of society. As the American tradition of law has long recognized, death is a punishment different in kind from any other.
Recognizing that solemn obligation, in 1972 the United States Supreme Court invalidated the death sentences of the three petitioners appearing before it, and signaled that as it was then being imposed across much of the country, the death penalty violated the Eighth Amendment. See Furman v. Georgia [1972]. The Furman decision was rooted in part in the Court’s recognition that arbitrary imposition of the death penalty could not justly further the penological goals of society—deterrence and retribution. They are bedrock principles of the Constitution’s promise to not permit the infliction of cruel and unusual punishment by the State.
A. Arbitrariness in California’s Death Penalty System
California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death. Of the more than 900 individuals that have been sentenced to death since 1978, only 13 have been executed. In fact, just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years. Such an outcome is obviously impossible for many reasons, not the least of which is that as a result of extraordinary delay in California’s system, only 17 inmates currently on Death Row have even completed the post-conviction review process and are awaiting their execution. For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose.
B. The Penological Purpose of California’s Death Penalty System
The systemic delay and dysfunction that result in the arbitrary execution of California’s Death Row inmates give rise to a further constitutional problem with the State’s administration of its death penalty system. In California, the execution of a death sentence is so infrequent, and the delays preceding it so extraordinary, that the death penalty is deprived of any deterrent or retributive effect it might once have had. Such an outcome is antithetical to any civilized notion of just punishment.
1. Deterrence
Whether the death penalty has any deterrent effect when administered in a functional system is a widely contested issue upon which no clear empirical consensus has been reached. But even when administered in a functional system, few could dispute that long delays preceding execution frustrate whatever deterrent effect the death penalty may have. Indeed, the law, and common sense itself, have long recognized that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition. In California, the system in which the death penalty is administered can only be described as completely dysfunctional. The delay inherent in California’s system is so extraordinary that it alone seriously undermines the continued deterrent effect of the State’s death penalty. The reasonable expectation of an individual contemplating a capital crime in California then is that if he is caught, it does not matter whether he is sentenced to death—he realistically faces only life imprisonment. Under such a system, the death penalty is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going outside in the rain.
2. Retribution
Just as inordinate delay and unpredictability of executions eliminate any deterrent effect California’s death penalty might have, so too do such delay and unpredictability defeat the death penalty’s retributive objective. It is true that the Supreme Court has consistently affirmed the view that retribution, as “an expression of society’s moral outrage at particularly offensive conduct,” is a constitutionally permissible aim of capital sentencing schemes. But no reasonable jurist could dispute that inordinate delay frustrates that aim.
In California, a Death Row inmate will likely wait at least 25 years before his execution becomes even a realistic possibility. Were such lengthy delay an isolated, or even necessary, circumstance of a system that otherwise acts purposefully to give meaning to society’s moral outrage, the retributive purpose of the death penalty might continue to be served. Here, however, the delay is systemic, and the State itself is to blame. The State has allowed such dysfunction to creep into its death penalty system that the few executions it does carry out are arbitrary.
C. Petitioners’ Fault in Creating Delay
As the State correctly notes, courts have thus far generally not accepted the theory that extraordinary delay between sentencing and execution violates the Eighth Amendment. When courts have rejected the theory, however, they have often not addressed whether any penological purpose of the death penalty continues to be served more than two decades after the death sentence was imposed. Rather, courts often rely on two justifications for rejecting the theory: first, that the delay is reasonably related to the state’s effort to safeguard the inmate’s constitutional rights by ensuring the accuracy of its death conviction and sentence, and second, that the delay is caused by the petitioner himself, and therefore cannot be constitutionally problematic. The facts here, however, show that at least as to California’s administration of its death penalty system, such assumptions are simply incorrect.
Of course, the Court’s conclusion should not be understood to suggest that the post-conviction review process should be curtailed in favor of speed over accuracy. Indeed, it bears noting that in more than half of all cases in which the federal courts have reviewed a California inmate’s death sentence on habeas review, the inmate has been granted relief from the death sentence. The post-conviction review process is, therefore, vitally important. It serves both the inmate’s interest in not being improperly executed, as well as the State’s interest in ensuring that it does not improperly execute any individual. Nevertheless, the Court holds that where the State permits the post-conviction review process to become so inordinately and unnecessarily delayed that only an arbitrarily selected few of those sentenced to death are executed, the State’s process violates the Eight Amendment. Fundamental principles of due process and just punishment demand that any punishment, let alone the ultimate one of execution, be timely and rationally carried out
When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.
But for too long now, the promise has been an empty one. Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional. Accordingly, the Court hereby VACATES Mr. Jones’s death sentence.
Felon disfranchisement
Cal. Constitution Art. II sec. 4
CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SEC. 4. The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony.
Richardson v. Ramirez, 418 U.S. 24 (1974)
Mr. Justice REHNQUIST delivered the opinion of the Court.
The three individual respondents in this case were convicted of felonies and have completed the service of their respective sentences and paroles. They filed a petition for a writ of mandate in the Supreme Court of California to compel California county election officials to register them as voters. They claimed, on behalf of themselves and others similarly situated, that application to them of the provisions of the California Constitution and implementing statutes which disenfranchised persons convicted of an ‘infamous crime’ denied them the right to equal protection of the laws under the Federal Constitution. The Supreme Court of California held that ‘as applied to all ex-felons whose terms of incarceration and parole have expired, the provisions of article II and article XX, section 11, of the California Constitution51 denying the right of suffrage to persons convicted of crime, together with the several sections of the Elections Code implementing that disqualification . . . violate the equal protection clause of the Fourteenth Amendment.’
Unlike most claims under the Equal Protection Clause, for the decision of which we have only the language of the Clause itself as it is embodied in the Fourteenth Amendment, respondents’ claim implicates not merely the language of the Equal Protection Clause of § of the Fourteenth Amendment, but also the provisions of the less familiar § 2 of the Amendment:
‘Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the numberof such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.’
[Justice Rehnquist then provided an extended review of historical evidence contemporary with adoption of the Fourteenth Amendment to contend that the Framers did not intend to prohibit felon disfranchisement.] As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment’s applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court. Section 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement.
Pressed upon us by the respondents, and by amici curia, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California’s present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument
We therefore hold that the Supreme Court of California erred in concluding that California may no longer, consistent with the Equal Protection Clause of the Fourteenth Amendment, exclude from the franchise convicted felons who have completed their sentences and paroles. The California court did not reach respondents’ alternative contention that there was such a total lack of uniformity in county election officials’ enforcement of the challenged state laws as to work a separate denial of equal protection, and we believe that it should have an opportunity to consider the claim before we address ourselves to it. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.
It is so ordered.