Capital punishment – the death penalty – is the most serious punishment society can impose on someone for committing a crime. It is an irreversible penalty and one most nations around the world have eliminated from their criminal justice systems. If you haven't studied capital punishment in the United States, you might think that liberal California – avant-garde in so many social issues – would be among the first states to prohibit the death penalty. Don't bet your paycheck on it, however, since you would be very wrong.
The death penalty has been the law in California since 1872, and, despite being held unconstitutional by state and federal courts, it remains part of the state's Penal Code. California residents have passed many initiatives supporting or expanding the death penalty, including one that changed the state constitution to make the controversial penalty legal.
California Death Penalty Early History
California's Penal Code sets out the criminal law in the state, as well as different types of punishments. The death penalty found its way into the Penal Code on Valentine's Day in 1872. It has had a rocky ride there, being struck down by several courts and opposed by at least one governor. Yet Californians have resuscitated the law and strengthened it by initiative on a dozen occasions.
Methods of Capital Punishment
Under the law as it was initially written, capital punishment had to take place in a prison or some other "convenient private place" in a county. The law also specified who had to attend the execution, such as the sheriff of the county, and who was permitted to attend – five of the convicted person's family or friends. The death penalty was carried out on a county level until 1891, when the statute was amended to require a judgment of death to be executed within a state prison. After that, capital punishment carried out by hanging occurred at two prisons, San Quentin State Prison and Folsom State Prison. The first state-conducted execution at San Quentin took place on March 3, 1893, and the first at Folsom was on December 13, 1895.
The next big change to the law occurred on August 27, 1937, when the state legislature removed hanging as the official method of killing the person given the death penalty. It was replaced with lethal gas, but only prospectively; those already sentenced when the law was amended were hung. The final capital punishments by hanging took place in Folsom on December 3, 1937, and at San Quentin on May 1, 1942. That brought the total number of persons hung at Folsom to 92, and a total of 215 were hung at San Quentin. After that, capital punishment was carried out in a gas chamber installed by the state at San Quentin State Prison. The first time it was used was on December 2, 1938. Between then and 1967, a total of 194 people, 190 men and four women, were sent to the gas chamber there.
Read More: What Is California's Capital Punishment Law?
Courts Declare Death Penalty Unconstitutional
The year 1967 appeared to be a turning point for capital punishment in California. Constitutional challenges were brought to the death penalty, and both the California and the U.S. Supreme Courts found the ultimate penalty to be unconstitutional as written or as applied. As a result of this litigation, nobody was executed in California for a period of 25 years.
First, in February, 1972, the California Supreme Court ruled that the death penalty violated the prohibition against cruel and unusual punishment in the California state constitution. As a result, all of the people awaiting execution on California's death row were instead given life sentences with the possibility of parole.
The following year, the United States Supreme Court ruled that the death penalty violated the U. S. Constitution. It did not rule that capital punishment itself was unconstitutional, but found that it was unconstitutional as it was carried out in various states.
Californians Amend the Constitution
But Californians supporting capital punishment took action. In November 1972, voters amended the state constitution by the initiative process to specify that the death penalty was not cruel and unusual punishment. The following year, the state legislature enacted laws making capital punishment the mandatory punishment in certain types of criminal cases. These included criminal cases where a kidnapped victim dies, cases where someone in jail for life commits murder and also for first-degree murder convictions in certain situations, like the murder of a police officer or of a witness to prevent testimony.
Court Again Rules Law Unconstitutional
But several years later, in 1976, the California Supreme Court again found the California capital punishment law to be unconstitutional. This time the court found the law invalid under the U.S. Constitution on the grounds that it did not permit a convicted person to give evidence of mitigating circumstances. Under this ruling, the sentences of another 70 inmates were changed to life in prison.
California Rewrites Death Penalty Law
The year after that decision, the California state legislature wrote a new death penalty law, this one allowing evidence of mitigating circumstances. Under this law, capital punishment was only a punishment for certain first-degree murder convictions, including murder of a police officer, murder of a witness to prevent testimony, murder for financial gain and murder with torture. But these statutes were all superseded by an initiative the following year, Proposition 7, that is still the current capital punishment statute on the books. It provided for many levels of appeals in both state and federal courts. The first execution under that law took place on April 21, 1992.
Lethal Injection Controversy
The California legislature changed the death penalty law again in January 1993, this time to allow lethal injection as a method of execution. Inmates were given the choice of either lethal gas or lethal injection. But the use of cyanide gas was invalidated by a federal court judge in October 1994, finding that it was cruel and unusual punishment. The ruling was upheld by the U.S. Ninth Circuit Court of Appeals. And several years later, in 2006, the federal court also found California's lethal injection protocol to be unconstitutional as applied. This caused the state to rewrite all the protocol rules in an attempt to make them constitutional. But the new regulations also were found defective by the courts.
California Voters Reaffirm Death Penalty
Another California death penalty proposition was put on the ballot in 2012. This was Proposition 34, the Death Penalty Initiative Statute, which proposed repealing the death penalty law and changing the sentences of the 728 people on death row to life imprisonment without parole. But this proposition was rejected with 52 percent of the voters against it.
But again, a federal court found that the state's death penalty law was cruel and unusual. This was the ruling on July 16, 2014, when the U.S. District Court in the Central District of California determined that delays in the appeals process were so extraordinary as to make them have no deterrent or retributive effect. Under state law, every person sentenced to death has a direct appeal to the California Supreme Court. Each appeal takes an average of 25 years to be determined.
Californians for and against the death penalty placed opposing California death penalty propositions on the ballot in 2016. Proposition 62 would have abolished the death penalty, but it only gained some 46 percent of the votes and was defeated. Proposition 66 required that the layers of appeal processes that led to the delays in capital punishment be simplified to make it a speedier punishment. It would require trial courts to take on the first challenges to convictions and limit the appeals process to five years of the death sentence. This passed with some 51 percent of the vote. A lawsuit was filed challenging it in court, but so far it has not been invalidated.
Status of California Death Penalty
So what is the status of the California death penalty in 2018? It is uncertain, so uncertain that people tend to forget that the state is one of those with a capital punishment law on the books. Nobody has been executed in California since 2006, and, despite the many initiatives and propositions and amendments to the law, it is still under constitutional challenge.
Given all of the court challenges, capital punishment remains at a historic low in the state. The courts so far have not ruled Proposition 66 to be unconstitutional. Yet they have not determined, either, that the amendments to the appeals process set out in that initiative will solve the constitutional problems. So, technically, the death penalty law remains on the books, but its constitutionality is uncertain.
California Death Penalty Statistics
California death penalty statistics are used by both death penalty proponents and those who oppose capital punishment to further their respective arguments, so their significance depends on which side of the debate a person is on. This much is certain: There are more inmates on California's death row than in any other state in the nation. California has more than 740 inmates awaiting executions. It is said that the state has more people waiting on death row than any other jurisdiction in the entire Western Hemisphere.
Even so, California has executed many convicts. Before the last constitutional challenge that effectively blocked executions in 2006, California had executed over 1,000 inmates. It killed 307 inmates by hanging, 196 by lethal gas and 513 by lethal injection. Since the current law was put in place in 1978, almost 1,000 people have been given the death sentence and 13 have been executed. During that time, two California inmates were executed in all the other states. Who was the last person to be executed in California? That was Clarence Ray Allen, executed on January 17, 2006.
According to the American Civil Liberties Union, death penalty trials are expensive in California. Each one costs over a million dollars more than a regular murder trial, for a total of some $22 million per year. Death row is also expensive, housing the inmates and funding the state-paid mandatory appeals. Each inmate on death row costs California some $175,000 more every year than other inmates cost, for a total of over $117 million extra for the state's death row population per year.
One argument against the death penalty is that the justice system is not, and cannot, be perfect. Generally, prisoners can continue to investigate the circumstances of wrongful convictions from the jail cell, but that is not possible with capital punishment, since execution is obviously forever. Once a person is executed, there is no remedy if it is discovered later that he was, in fact, innocent.
And this does happen. Juries can make mistakes, even in death sentence cases where so much is on the line. Judges are also fallible. Since 1973, more than 130 people convicted of murder in this country and sentenced to death have been able to prove that they actually were innocent of their crimes. It is not known how many other inmates were put to death before being able to establish their innocence.
- Shouse Law: Capital Punishment (Death Penalty) in California Law
- Death Penalty Info: California
- The Marshall Project: What to Know About the Dealth Penalty in 2018
- L.A Times: Inmates Awaiting Executrion
- Findlaw: California Capital Punishment Laws
- MSNBC: California Judge Strikes Down Death Penalty
- ACLU: Know the Facts: California Death Penalty Fact Sheet
- L.A. Times: California Voters Approve Proposition 66
- Death Penalty: California
- L.A. Times: After 11-Year Hiatus...
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.