On August 24, the California Supreme Court upheld the death penalty reform initiative, Proposition 66, rejecting every one of the attacks made on it. See this post. However, the opponents filed a petition for rehearing, and the court gave itself 60 days to consider it. See this post.
Today, the court denied rehearing, making only trivial modifications to the opinion.
So the effective date of Proposition 66 is today when it should have been almost a year ago, the day the voters enacted it.
Here are a few things that change as of today.
First, execution protocols no longer have to go through the Administrative Procedure Act process. We no longer have to care what the Office of Administrative Law thinks.
Second, successive habeas corpus petitions in state court are limited to those rare death row inmates with substantial claims of actual innocence or actual ineligibility for the penalty. For those who have no such claims, there is no ground for federal courts to "stay and abey," i.e. put the federal case on hold while he returns to state court to file another petition there. The Supreme Court noted in Rhines v. Weber, 544 U.S. 269, 277 (2005):
Just as "stay and abey" should not be granted for claims that are "plainly meritless," it should also not be granted for claims that are plainly defaulted. By replacing California's prior fuzzy exceptions to the successive petition rule with a clearer and simpler one, it should be apparent to the federal court in nearly all cases that the claim is defaulted, and there is no need to return to state court. The federal court can proceed directly to its "cause and prejudice" analysis under the federal procedural default rule.
Third, the California Supreme Court can and should begin promptly unloading the bulk of the original capital habeas corpus petitions before it, sending them to the state trial courts. Relieving itself of this workload, it will have more resources available to process the direct appeals in a more timely manner.
It has been a long fight, and it is not over, but we have made a major advance toward justice.
First, execution protocols no longer have to go through the Administrative Procedure Act process. We no longer have to care what the Office of Administrative Law thinks.
Second, successive habeas corpus petitions in state court are limited to those rare death row inmates with substantial claims of actual innocence or actual ineligibility for the penalty. For those who have no such claims, there is no ground for federal courts to "stay and abey," i.e. put the federal case on hold while he returns to state court to file another petition there. The Supreme Court noted in Rhines v. Weber, 544 U.S. 269, 277 (2005):
Stay and abeyance, if employed too frequently, has the potential to undermine these twin purposes[of the Antiterrorism and Effective Death Penalty Act]. Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition. Cf. Duncan, supra, at 180 ("[D]iminution of statutory incentives to proceed first in state court would . . . increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce").
For these reasons, stay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U. S. C. ยง 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").
Just as "stay and abey" should not be granted for claims that are "plainly meritless," it should also not be granted for claims that are plainly defaulted. By replacing California's prior fuzzy exceptions to the successive petition rule with a clearer and simpler one, it should be apparent to the federal court in nearly all cases that the claim is defaulted, and there is no need to return to state court. The federal court can proceed directly to its "cause and prejudice" analysis under the federal procedural default rule.
Third, the California Supreme Court can and should begin promptly unloading the bulk of the original capital habeas corpus petitions before it, sending them to the state trial courts. Relieving itself of this workload, it will have more resources available to process the direct appeals in a more timely manner.
It has been a long fight, and it is not over, but we have made a major advance toward justice.
Kent,
A tremendous victory for California, CJLF, Mike Rushford and you. Congratulations.
Looks like we'll have to stay and abbey all those "death penalty is dying" slogans we keep hearing.
If you had to guess, Kent, when would you predict the first execution in CA and what might be the pace in coming years?
To be specific, can/should we expect a California execution in 2018 and more than a few executions per year in subsequent years?
With nearly 750 murderers on the CA row, the state would have to complete an execution every week until 2025 just to "catch up." Do you think there is a chance that the state could have even one execution every month anytime soon?
By my lights, the abolitionists are still "winning" if/when those sentenced to death in CA are far more likely to live 20+ years on the row than have a lawful death sentence carried out.
I believe that CDCR has said they can do one execution a month. At that rate executing everyone on death row would take around 62 years. Of only 21 of those people have completed their appeals so it would take a lot longer. And since about half don't have habeas counsel, and since prop 66 does nothing to increase the availability of habeas counsel, the whole thing is a farce.
What's a farce is a small band of pro-murderer zealots frustrating the will of the people and the holdings of one court after the next with manufactured procedural claims having zip to do with Mr. Nicey's actual behavior.
Another thing that's a farce, and a cynical one at that, is for abolitionists to do everything they can to muck up administration of the DP, then tut-tut everyone else with the observation, "Oh, look, the DP is mucked up, so I guess we should outlaw it!!!"