While California statutory law recognizes the death penalty as a legal form of punishment for certain serious crimes, no one has been executed in California since 2006. In March 2019, the California governor issued an official moratorium on all further executions. As part of that moratorium, the equipment and machinery used to implement and carry out executions by lethal injection was removed from the death chamber in California’s San Quentin prison.
Legal Foundations of Capital Punishment in the U.S.
Generally, the death penalty in the United States is administered by the jurisdiction in which the crime was committed. For the most part, that means that each state adopts its own policy and procedures for implementing the death penalty, should it choose to do so at all. In addition, the U.S. government allows for the death penalty for certain federal crimes, though the vast majority of executions are administered by the states.
On the state level, both the federal Constitution and the relevant state constitutions may place restrictions on the administration of the death penalty, such as the crimes for which it can be imposed, how judicial proceedings must be conducted and the types and numbers of appeals that condemned prisoners are allowed. Procedures and regulations governing how executions are conducted are generally set by state law and regulations, while the state’s corrections department is responsible for ensuring that all executions meet those requirements.
Cruel and Unusual Punishment and the Eighth Amendment
One of the key limitations on the death penalty in the United States is the Eighth Amendment to the U.S. Constitution, which provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The phrase, "cruel and unusual punishments,” has been frequently interpreted in the context of the capital punishment debate. In the U.S. Supreme Court case of Furman v. Georgia (1972), the death penalty was ruled to violate this prohibition. However, the Court upheld new sentencing laws and procedures four years later in Gregg v. Georgia (1976), beginning the process of reinstating the death penalty in the U.S. The Gregg case also clarified that the death penalty in and of itself was not unconstitutional, but rather, Furman addressed only the death penalty as it was then applied and enforced. Subsequent cases have upheld death penalty statutes.
History of the California Death Penalty
After the state was accepted into the union, the California Criminal Practices Act of 1851 authorized and regulated the death penalty. At that point, executions were carried out by the county that retained jurisdiction over the crime and the defendant.
California lawmakers amended the state’s statutes pertaining to hangings in 1872 to outlaw the concept of public execution in the state. Under the new laws, hangings could take place only inside the county jail or some other enclosed space that was not open to public spectators.
The statutes also set forth a limited number of people who could witness these executions, including the local sheriff, the local prosecuting attorney, an area medical doctor to pronounce death, no more than two spiritual advisers (but only Christian “ministers of the gospel” were permitted), and up to five witnesses invited by the person to be executed. In addition, the prosecutor was to select at least 12 citizen witnesses. All witnesses were required to be of the age of majority.
In 1891, jurisdiction over the administration of the death penalty was transferred from the county level to the state. A legislative amendment required that all executions take place “within the walls of one of the State Prisons,” with the warden replacing the sheriff as the law enforcement representative and witness. The state’s attorney general, rather than the local prosecutor, was designated as the administrative representative.
Methods of Execution in California
Over the course of its history in the state, the death penalty has been implemented by four different methods. Initially, executions in California were carried out by a firing squad. Once California joined the Union in 1850, the official execution method was changed to hanging.
In 1937, the state began the transition from hanging to lethal gas in gas chambers. From that point until 1967, 194 people were executed in the gas chamber at San Quentin.
In 1967, legal challenges and growing opposition to the death penalty put a halt to California executions. After executions resumed in 1992, California legislators adopted a new provision allowing the condemned to choose between the gas chamber or lethal injection, and prison officials adopted protocols for using lethal injections based on other states’ procedures.
In 1993, David Mason was executed in the San Quentin gas chamber because he had not selected a chosen method of execution. In 1994, a federal judge in San Francisco ruled that the gas chamber method of execution constituted cruel and unusual punishment, thus prohibiting further use of lethal gas as an execution method. Lethal injection then became the default method in the event a condemned inmate declined to choose.
William Bonin, sometimes referred to as the Freeway Killer, was the first California inmate to be put to death using the lethal injection protocols on February 23, 1996. Currently, California law allows both lethal gas and lethal injection as methods of execution; the condemned inmate may choose one of those two methods.
Elimination of the Death Penalty in California
From the state’s first execution in 1778 until 1972, state officials carried out 709 executions. In 1972, however, the California Supreme Court issued its decision in People v. Anderson. This decision essentially eliminated the death penalty in California by holding that it constituted cruel or unusual punishment in violation of the state’s constitution.
In doing away with the death penalty, the court noted what it perceived as growing public opposition to executions. It also rejected the state’s argument that it had a legitimate interest in pursuing the death penalty as a means of isolating the condemned prisoner from other possible victims and society at large and as a means of deterring future criminal activity. The court instead pointed out that the state could protect those interests with lesser sentences, such as life imprisonment without parole.
The case turned in part on a seemingly small, but crucial, difference in wording between the California Constitution (Article 1, Section 6; now Article 1, Section 17) and the Eighth Amendment to the U.S. Constitution. The state constitution prohibits cruel or unusual punishment, while the federal Constitution prohibits cruel and unusual punishment. The court pointed out that the former prohibition targets a punishment that meets either of those two criteria, while the latter wording prohibits only punishments that meet both criteria.
California Death Penalty Practice After Anderson
After the court handed down its decision in the Anderson case in 1972, executions were halted in California. All prisoners then housed on death row effectively had their death sentences commuted to life imprisonment. And, from that point forward, any defendant who is ever charged with, and convicted of, a death penalty crime that took place prior to 1972 cannot be sentenced to death.
Voters in California responded to the court’s decision by proposing and passing Proposition 17. This ballot initiative sought to amend the state’s constitution by adding a provision that maintained the cruel or unusual standard, but specifically provided that the death penalty was neither cruel nor unusual within the meaning of the California Constitution. The proposition was adopted with over 67.5 percent of California voters supporting it.
Resumption of Executions in California
It was not until 1992 that the state carried out its next execution. This was due to the impact of the U.S. Supreme Court case of Furman v. Georgia, also released in 1972. In that case, the death penalty was held to violate the federal Constitution's Eighth Amendment prohibition against cruel and unusual punishment, as well as the Fourteenth Amendment prohibition against discrimination.
As a result, the death penalty was halted across the country in all states. In the following years, states attempted to overcome the constitutional deficiencies in their death penalty statutes by adopting new procedures, like the bifurcated trial with separate phases for guilt and for sentencing, and by instituting limitations and standards to curtail the previously unfettered discretion of judges and juries.
The 1976 case of Gregg v. Georgia reinstated the death penalty in some states, and other cases that followed helped restore the death penalty across the country. The first execution that took place after the formal restoration of the death penalty in the U.S. took place in Utah on January 17, 1977, where Gary Gilmore faced a firing squad.
In California, the first execution that took place post-Gregg was the execution of Robert Alton Harris, age 76, on January 17, 2006, for the 1978 murders of two San Diego teens. The execution took place in San Quentin’s gas chamber. Clarence Ray Allen was the last person to be executed in California. No executions have been carried out in the state since Allen’s death.
Crimes Eligible for the Death Penalty
In most cases, those condemned to execution in California have been convicted of what is called “special circumstances murder.” This variant of first-degree homicide – sometimes referred to as capital murder – requires that the jury finds that one or more special circumstances apply to the underlying crime, such as:
- The victim is a law enforcement officer, firefighter, witness, judge, prosecuting attorney or juror.
- The crime involved torture, a bomb or poison.
- The murder was committed in connection with criminal gang activity or in furtherance of, or connected to, some other felony.
- The defendant has prior murder convictions.
A finding of special circumstances means that the convicted defendant is eligible for the death penalty. The jury must decide whether the penalty will be life in prison without the possibility of parole or the death penalty. The penalty is determined in a subsequent phase of the trial and only after guilt has been decided.
Other crimes may also be eligible for capital punishment, though these are less frequently prosecuted. These crimes include treason; lying under oath or perjury in order to cause an innocent defendant to be executed; killing any individual with a deadly weapon while serving a life sentence in a California state prison; and committing sabotage on a train resulting in death.
Aggravating and Mitigating Factors
In making the decision as to whether the defendant should receive the death penalty, the jury can consider a variety of aggravating factors. These factors are spelled out in the California Penal Code and include:
- The nature and circumstances of the crime, including victim impact evidence.
- A history of other violent criminal activity (conviction of those acts is not required for this factor to be found).
- Previous convictions for felony charges.
The jury will also consider mitigating factors that might make capital punishment inappropriate or less warranted than it otherwise would be. Such factors can include the defendant’s youth, diagnosed mental or emotional illness, perceived justification and pressure or duress from outside forces.
Official Moratorium on Executions
In 2014, a federal judge ruled that the current California death penalty scheme violated the U.S. Constitution and the Eighth Amendment due to arbitrary enforcement and egregious delays. This ruling was unanimously overruled by a three-judge panel from the Ninth Circuit Court of Appeals on the basis that the petitioner in that specific case had not exhausted state court remedies before raising what amounted to a novel constitutional theory in a habeas corpus appeal.
Five years later, in March 2019, California Governor Gavin Newsom declared a moratorium on all future executions in the state. Governor Newsom’s announcement effectively granted a temporary stay of execution for 737 inmates then imprisoned on death row. Simultaneously with that announcement, the equipment in the death chamber at San Quentin was removed and deactivated.
- New York Times: California Death Penalty Suspended; 737 Inmates Get Stay of Execution
- CA CEB Research Portal: People v. Anderson, (1972) 6 C3d 628
- CA Department of Corrections and Rehabilitation (CDCR): History of Capital Punishment in California
- Ballotpedia: California Proposition 17, Death Penalty in the California Constitution (1972)
- Justia: Furman v. Georgia, 408 U.S. 238 (1972)
- Justia: Gregg v. Georgia, 428 U.S. 153 (1976)
- Los Angeles Times: From Birth to Death Row, Violence Surrounded Harris
- California Legislative Information: California Constitution
- Legal Information Institute: U.S. Constitution Eighth Amendment
- Death Penalty Information Center: California
- Los Angeles Times: ‘Freeway Killer’ William Bonin is executed
- FindLaw Codes: California Code, Penal Code - PEN § 187
- FindLaw Codes: California Code, Penal Code - PEN § 190.3
- FindLaw Codes: California Code, Penal Code - PEN § 190.2
- FindLaw Codes: California Code, Penal Code - PEN § 190.4
- FindLaw Codes: California Code, Penal Code - PEN § 3604