Remedies for California's death row deadlock

Southern California Law Review

Volumn 80, Issue 4, 2007, Pages 697-752

  Alarcón, Arthur L ^a  

^a United States Court of Appeals for the Ninth Circuit ^*

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EID: 34547795123     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (316)

1. William Gladstone, Prime Minister, Speech Addressed to British Parliament Regarding Disestablishment of Irish Church (Dec. 1868), reprinted in N. Y. TIMES, May 19, 1898, at 7 (reprinting excerpts from Gladstone's Career: Fifty Years of Public Life as a Statesman and Political Leader) ("[I]f we be just men, we shall go forward in the name of truth and right, bearing this in mind, that when the case is proved and the hour is come, justice delayed is justice denied.").
2. David Kravets, Top Judge Calls Death Penalty "Dysfunctional" : Legislature Blamed for Inadequate Funding, SAN JOSE MERCURY NEWS, May 1, 2006, at B4.
3. Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-on Sentence, 46 CASE W. RES. L. REV. 1, 3 (1995).
4. Id. at 4.
5. See id. at 10 (citing JAMES J. STEPHAN & PETER BRIEN, U.S. DEP'T OF JUSTICE, CAPITAL PUNISHMENT 1993, at 11 tbl.12 (1993)).
6. Id. at 28.
7. See id. at 31.
8. See, e.g., 1998 Cal. Stat. 92 (expanding the special circumstances relating to lying in wait, kidnapping, and arson); 1995 Cal. Stat. 3557 (adding murder committed during the course of a car jacking); Proposition 21, §11 (2000), available at http://primary2000.ss.ca.gov/VoterGuide/ Propositions/21text.htm (expanding first degree murder to include a homicide committed to further the activities of a street gang). Most recently, on February 22, 2005, Senate Bill No. 817 was introduced to add to the list of special circumstances a situation in which "[t]he defendant intentionally killed the victim, who was under 14 years of age and the defendant knew, or reasonably should have known that the victim was under 14 years of age." See S. 817, 2005-2006 Reg. Sess. § 1(a)(23) (Cal. 2005), available at http://www.leginfo.ca.gov/pub/05-06/bill/sen/sb_0801-0850/ sb_817_bill_20050222_ introduced.html.
9. AD HOC COMM. ON FED. HABEAS CORPUS IN CAPITAL CASES, JUDICIAL CONFERENCE OF THE U.S., COMMITTEE REPORT AND PROPOSAL 1 (1989) [hereinafter POWELL COMMITTEE REPORT].
10. See id. at 3.
11. See People v. Anderson, 493 P.2d 880 (Cal. 1972).
12. See id. at 894 ("The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, 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."). California later reinstated the death penalty by amending the constitution to state that the death penalty was not cruel and unusual punishment. See Steven F. Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72 N.Y.U. L. REV. 1283, 1343 (1997). In People v. Hill, the California Supreme Court noted that Anderson no longer had any "force or effect" due to the amendment of California's constitution. See People v. Hill, 839 P.2d 984, 1017 (Cal. 1992). It refused to rely on its reasoning in Anderson to conclude that long delays violated the federal constitution. See id. Whether long delays violate the federal constitution has not yet been determined by the United States Supreme Court. See, e.g., Allen v. Ornoski, 126 S. Ct. 1139 (2006) (denying certiorari on the question of the constitutionality of delay).
13. According to the California Supreme Court: The median elapsed time prisoners now awaiting execution in California had been imprisoned as of the end of 1968 was 20.7 months. The national median elapsed time was then 33.3 months. The California figures do not take into account prisoners who were awaiting execution at that time but who have since had their sentences commuted, judgments reversed, or have been removed from death row for other reasons. As of December 31, 1968, the median elapsed time condemned prisoners then on death row had been awaiting execution was 23.7 months. There were a total of 104 persons under sentence of death in California as of December 31, 1971. Of these, two prisoners have been on death row since 1964, five since 1965, and seven since 1966. Eight were received there in 1967, fifteen in 1968, and thirteen in 1969. Thirty-four were received in 1970 and the remaining twenty in 1971. Anderson, 493 P.2d at 894 n.37 (internal citation omitted).
14. This figure is based on a comprehensive review of each death row inmate's actual docket for cases pending in the California Supreme Court on automatic appeal and habeas corpus, and in the courts of the United States on habeas corpus and on appeal since the death penalty was reinstated in 1978. The information was confirmed with data received from the California Department of Corrections and Rehabilitation as well as the California Supreme Court. The data retrieved from the inmates' dockets has been compiled into a database [hereinafter Docket Database], which is on file with the author. Information is current as of January 19, 2006. The figure reflecting an average delay of 17.2 years among prisoners executed in California excludes the delay in the execution of David Mason. David Mason was condemned to death on January 27, 1984 and was executed on August 24, 1993. Because he waived his right to seek postconviction relief, the length of time he spent on death row is not indicative of the average length of the appellate process.
15. Docket, People v. Ramirez, No. S012944 (Cal. Nov. 7, 1989), available at http://appellatecases.courtinfo.ca.gov/. The docket reflects the following timeline concerning Mr. Ramirez's direct appeal: November 7, 1989: Judgment of Death Entered. 3 years, November 25, 1992: The California Supreme Court appointed counsel for his automatic direct appeal. 9.8 years, October 4, 1999: After eleven requests for an extension of time to correct the record, the record on appeal was filed. 12.25 years, March 1, 2002:After eleven requests for an extension of time to file an opening brief, Mr. Ramirez's counsel filed a 413-page opening brief. 12.75 years, August 8, 2002: After three requests for an extension of time, the California Attorney General's Office filed a 338-page responsive brief. 14.1 years, December 31, 2003: After eight requests for an extension of time, Mr. Ramirez's counsel filed a 171-page reply brief. 16.5 years, June 6, 2006: Mr. Ramirez's direct appeal was argued and submitted. 16.6 years, August 7, 2006: The California Supreme Court affirmed Mr. Ramirez's conviction and sentence. On June 21, 2004, Mr. Ramirez filed a related habeas corpus petition in the California Supreme Court. Docket, People v. Ramirez, No. S125755 (Cal. June 21, 2004), available at http://appellate cases.courtinfo.ca.gov/. The docket reflects the following timeline concerning Mr. Ramirez's direct appeal: 14.6 years, June 21, 2004: Mr. Ramirez filed a habeas corpus petition in the California Supreme Court. 15 years, November 22, 2004: After four requests for an extension of time, the attorney general filed an informal response. 16 years, November 30, 2005: After eleven requests for an extension of time, Mr. Ramirez's counsel filed a reply to the informal response. 16.7 years, as of July 24, 2006: The California Supreme Court had taken no further action on Mr. Ramirez's request for habeas corpus relief.
16. See Docket, supra note 15.
17. See id.
18. 28 U.S.C. § 2254(a) (2000).
19. See Docket Database, supra note 14.
20. See Cal. Dep't of Corrs. & Rehab., Inmates Executed, 1978 to Present, at http://www.cdc.state.ca.us/ReportsResearch/InmatesExecuted.html (last visited May 10, 2007) [hereinafter Inmates Executed List].
21. Docket, People v. Allen, No. S004483 (Cal. Nov. 22, 1982), available at http://appellatecases.courtinfo.ca.gov/. The docket reflects the following timeline concerning Mr. Allen's direct appeal process: November 22, 1982: Judgment of Death Entered. 1 month, December 31, 1982: The California Supreme Court appointed counsel for Mr. Allen's automatic direct appeal. 1.6 years, July 6, 1984: The record of the trial was filed. A delay was caused by four requests by the court reporter for an extension of time to prepare the trial transcripts, and two requests by Mr. Allen's appellate counsel for an extension of time to correct the record on appeal. 2 years, December 19, 1984: Mr. Allen's appellate counsel filed the opening brief. 2.2 years, February 19, 1985: The Attorney General's Office filed its responsive brief. 2.3 years, April 15, 1985: Mr. Allen's counsel filed the reply brief and a supplemental brief. 2.7 years, August 9, 1985: The State filed a response to the supplemental brief. 3.1 years, January 7, 1986: Mr. Allen's automatic appeal was argued before the Supreme Court. 4 years, December 31, 1986: The Supreme Court affirmed the judgment of conviction and the death sentence in a published opinion. 4.8 years, October 5, 1987: The United States Supreme Court denied Mr. Allen's petition for certiorari. See Allen v. California, 484 U.S. 872 (1987).
22. Status of Automatic Appeals filed in the Supreme Court (Nov. 22, 2005) (on file with author).
23. Docket, People v. Allen, No. S003571 (Cal. Dec. 22, 1987), available at http://appellatecases.courtinfo.ca.gov/. The docket reflects the following timeline concerning Mr. Allen's first state habeas proceeding: 5 years, December 10, 1987: The California Supreme Court appointed new counsel to represent Mr. Allen in state habeas corpus proceedings. 5 years, December 22, 1987: Mr. Allen's counsel filed a petition for habeas corpus relief. 5 years, December 31, 1987: The Supreme Court directed the Attorney General's Office to file an informal response. 5.1 years, January 19, 1988: The State filed its informal response. 5.2 years, February 11, 1988: Mr. Allen's counsel filed a reply. 5.3 years, March 31, 1988: Mr. Allen's counsel filed an amended habeas corpus petition. 5.3 years, April 29, 1988: The State filed an opposition to the amended petition for a writ of habeas corpus. 5.4 years, May 20, 1988: Mr. Allen's counsel replied to the opposition. 5.5 years, June 23, 1988: The California Supreme Court denied a hearing on the merits. 5.8 years, September 9, 1988: Mr. Allen's execution was scheduled for this date. The California Supreme Court denied a stay of execution on August 10, 1988.
24. See Docket, supra note 23.
25. See id.
26. See id.
27. Allen v. California, 487 U.S. 1264 (1988).
28. Docket, Allen v. Vasquez, No. 2:88-cv-01123-FCD-JFM (E.D. Cal. Aug. 31, 1988), available at https://www.ecf.caed.uscourts.gov; Docket, Allen v. Woodford, No. 01-9901 (9th Cir. July 6, 2001) (on file with author). The dockets reflect the following timeline concerning Mr. Allen's federal habeas proceeding: 5.7 years, August 31, 1988: Mr. Allen's state habeas corpus counsel filed an application for a federal writ of habeas corpus application pursuant to 28 U.S.C. § 2254. 5.8 years, October 7, 1988: The State filed its answer. 6 years, December 29, 1988: The State filed a supplemental answer. 8.8 years, October 31, 1991: Mr. Allen's counsel filed an amended application. 10 years, December 14, 1992: The district court stayed the proceedings and ordered Mr. Allen to exhaust certain claims in state court. 10.5 years, June 29, 1993: The district court lifted the stay in Mr. Allen's federal habeas case. The district court ordered that Mr. Allen's counsel be permitted to conduct discovery. 11 years, January 21, 1994: The state filed a motion to dismiss Mr. Allen's alleged procedurally defaulted claims. 11.3 years, April 18, 1994: Mr. Allen's counsel filed his traverse to the State's answer. 11.8 years, September 30, 1994: The district court denied the State's motion to dismiss Mr. Allen's claims. 14.3 years, April 14, 1997: An evidentiary hearing was held in the district court between April 14, 1997 and April 21, 1997. 18.4 years, May 11, 2001: Mr. Allen's application for federal habeas corpus relief was denied twelve years and nine months after it was filed and over nineteen years after he was convicted and sentenced to death. 18.5 years, June 8, 2001: Mr. Allen's counsel filed a notice of appeal in the United States Court of Appeals for the Ninth Circuit. 19.5 years, June 21, 2002: Mr. Allen's opening brief was filed. 20 years, December 4, 2002: The State's responsive brief was filed. 20.3 years, April 21, 2003: Mr. Allen's reply brief was filed. 20.5 years, June 12, 2003: The matter was argued and submitted for a decision before a three-judge panel of the Ninth Circuit. 21.4 years, May 6, 2004: The three-judge panel affirmed the district court's denial of Mr. Allen's application for federal habeas corpus relief. 22 years, January 24, 2005: His petition for panel rehearing was denied and his petition for rehearing en banc was rejected more than three years after the appeal was filed in the Ninth Circuit. 22.8 years, October 11, 2005: The United States Supreme Court denied Mr. Allen's petition for a writ of certiorari. Mr. Allen's execution was scheduled for January 17, 2006 by the trial court.
29. See Docket, supra note 28.
30. Docket, People v. Allen, No. S031165 (Cal. Feb. 10, 1993), available at http://appellatecases.courtinfo.ca.gov/. Mr. Allen's counsel filed a second state habeas corpus petition in the California Supreme Court on February 10, 1993. The State filed an informal response on March 18, 1993. Mr. Allen's counsel filed his reply on April 26, 1993. The California Supreme Court denied the second habeas corpus petition on the merits on June 2, 1993. Id.
31. See Docket, supra note 28.
32. See id.
33. Docket, People v. Allen, No. S139857 (Cal. Dec. 23, 2005), available at http://appellatecases.courtinfo.ca.gov/. The docket reflects that on December 27, 2005, the California Supreme Court requested that the California Attorney General file an informal response. On January 3, 2006, the State filed its informal response. Mr. Allen filed a reply on January 6, 2006. Id.
34. See id.
35. See id.
36. Docket, Allen v. Omoski, No. 2:06-cv-00064-FCD-DAD (E.D. Cal. Jan. 12, 2006), available at https://www.ecf.caed.uscourts.gov.
37. See Allen v. Ornoski, 435 F.3d 946, 950 n.6 (9th Cir. 2006), cert. denied, 126 S. Ct. 1140 (2006).
38. See Docket at No. 13, Allen v. Ornoski, supra note 36.
39. See id.
40. See Docket, Allen v. Ornoski, No. 06-99001 (9th Cir. Jan. 13, 2006), available at http://www.pacer.ca9.uscourts.gov.
41. See id.
42. See id.
43. See id.
44. Inmates Executed List, supra note 20.
45. Several recent rulings illustrate this point well. For example, on November 13, 2006, the United States Supreme Court issued a ruling in the case of Fernando Belmontes after he had been on California's death row for twenty-four years. See Ayers v. Belmontes, 127 S. Ct. 469 (2006). He was convicted in 1982 of first degree murder and sentenced to death. See id. at 472. Following the affirmance of his conviction and sentence on automatic appeal in 1988, Mr. Belmontes filed successive petitions in state and federal district court for a writ of habeas corpus. The California Supreme Court denied his state petition in 1992, and the federal district court denied his section 2254 application in 2001. Docket, Belmontes v. Superior Court, No. S012093 (Cal. Sept. 18, 1989), available at http://appellatecases.courtinfo.ca.gov/; Docket, Belmontes v. Vasquez, No. 2:89-CV-00736-DFL-JFM (E.D. Cal. May 25, 1989), available at https://ecf.cald.uscourts.gov. Mr. Belmontes appealed to the United States Court of Appeals for the Ninth Circuit. Docket, Belmontes v. Woodford, No. 01-99018 (9th Cir. Oct. 17, 2001). In 2003, it reversed the district court's decision invalidating Mr. Belmontes's sentence, twenty-one years after it had been imposed. Id. The United States Supreme Court granted certiorari on March 28, 2005. Id. It reversed and remanded the Ninth Circuit's decision. Id. Upon remand, the Ninth Circuit again invalidated Mr. Belmontes's sentence. Id. The United States Supreme Court again granted certiorari on May 1, 2006. Ornaski v. Belmontes, 126 S. Ct. 1909 (2006). On November 13, 2006, it reversed the Ninth Circuit's decision, and again remanded for further consideration. Ayers v. Belmontes, 127 S. Ct. 469 (2006). On August 14, 2006, the California Supreme Court issued its opinion in the automatic appeal of Walter Joseph Cook, III. People v. Cook, 139 P.3d 492 (Cal. 2006). Mr. Cook was convicted of committing three murders in 1992. Id. at 500-02. He was sentenced to death in 1994. Docket, People v. Cook, No. S042223 (Cal. Sept. 2, 1994), available at http://appellatecases. courtinfo.ca.gov/. There was a twelve-year delay since the judgment of death and the California Supreme Court's ruling on his automatic appeal. On August 21, 2006, the California Supreme Court issued its opinion in the automatic appeal of David Keith Rogers. People v. Rogers, 141 P.3d 135 (Cal. 2006). Mr. Rogers was convicted of two murders committed in 1987. Id. at 144. He was sentenced to death in 1988. Docket, People v. Rogers, No. S005502 (Cal. May 2, 1988), available at http://appellatecases.courtinfo.ca.gov/. Thus, there was an eighteen-year delay between the judgment of death and the California Supreme Court's ruling on his automatic appeal. On August 24, 2006, the California Supreme Court issued its opinion in the automatic appeal of Albert Lewis. People v. Lewis, 140 P.3d 775 (Cal. 2006). Mr. Lewis was convicted of two counts of first degree murder and attempted murder of a third victim in 1989, and was sentenced to death in 1993. See id. at 843. Thus, there was a thirteen-year delay between the judgment of death and the California Supreme Court's ruling on his automatic appeal.
46. This point is well illustrated by the California Supreme Court's recently issued opinion in the second automatic appeal of Fermin Rodriguez Ledesma, twenty-eight years after the commission of his crimes. See People v. Ledesma, 140 P.3d 657 (Cal. 2006). Mr. Ledesma was charged with the 1978 murder of Gabriel Flores and was convicted and sentenced to death in 1980. Id. at 672. On the automatic appeal, the California Supreme Court vacated Mr. Ledesma's judgment of death and remanded the case to the superior court. People v. Ledesma, 729 P.2d 839 (Cal. 1987). On February 7, 1990, following a second trial, Mr. Ledesma was again found guilty on all charges and sentenced to death. Docket, People v. Ledesma, No. S014394 (Cal. Feb. 7, 1990), available at http://appellatecases.courtinfo.ca.gov/. Sixteen years later, on August 17, 2006, the California Supreme Court issued its opinion in his automatic appeal affirming his second judgment of death. Id. See also James S. Liebman, Opting for Real Death Penalty Reform, 63 OHIO ST. L.J. 315, 315-16 (2002) (arguing that delays during appeal and postconviction procedures are caused by mistakes at the trial level).
47. Docket Database, supra note 14. See also Cal. Dep't of Corrs. & Rehab., Condemned Inmate Summary List (Dec. 13,2005), http://www.cdc.state.ca.us/ReportsResearch/docs/Summary.pdf.
48. Cal. Dep't of Corrs. & Rehab., supra note 47.
49. Id.
50. Id.
51. Id.
52. Id.
53. Knight v. Florida, 528 U.S. 990, 992 (1999) (Thomas, J., concurring in denial of certiorari).
54. Id.
55. Docket Database, supra note 14. This figure is based on an examination of the dockets of persons whose judgments of guilt or sentences were vacated and who were not retried or resentenced.
56. Id.
57. Id.
58. Id.
59. Id.
60. Id.
61. See Liebman, supra note 46, at 315 (contending that the "appellate system is forced to deal with large amounts of error, creating backlog and delays").
62. See Gregg v. Georgia, 428 U.S. 153, 183 (1976) (Stewart, Powell & Stevens, JJ.) (concluding that the death penalty serves two principle social purposes: retribution and deterrence).
63. Joanna M. Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. LEGAL STUD. 283 (2004) (stating that delays decrease the deterrence factor). See also Justice Lewis F. Powell, Jr., Capital Punishment, 102 HARV. L. REV. 1035, 1035 (1989) ("This delay undermines the deterrent effect of capital punishment and reduces public confidence in the criminal justice system.").
64. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari) (stating that "after such an extended time, the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted").
65. See, e.g., Stephen Magagnini, Closing Death Row Would Save State $90 Million a Year, SACRAMENTO BEE, Mar. 28, 1988, at A1 (original study); Kozinski & Gallagher, supra note 3, at 13 (citing the $90 million figure);
66. Ashley Rupp, Note, Death Penalty Prosecutorial Charging Decisions and County Budgetary Restrictions: Is the Death Penalty Arbitrarily Applied Based on County Funding?, 71 FORDHAM L. REV. 2735, 2755 (2003) (same);
67. Barbara L. Jones, Some in Minnesota's Legal Community Express Concern About Re-introducing the Death Penalty, MINN. LAW., Dec. 15, 2003, available at 2003 WLNR 5603758 (same); Editorial, Slow Ride to Death Chamber, L.A. TIMES, Dec. 15, 2004, at B12 (same); Death Penalty Focus of Cal., The Cost of the Death Penalty in California, at http://worldpolicy.org/globalrights/dp/dp-cost.html (last visited May 10, 2007) (same); RICHARD C. DIETER, MILLIONS MISSPENT: WHAT POLITICIANS DON'T SAY ABOUT THE HIGH COSTS OF THE DEATH PENALTY (1994), arhttp://www.deathpenaltyinfo.org/ article.php?scid=45&did=385 (same).
68. Magagnini, supra note 65. See also Ilyana Kuziemko, Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment, 8 AM. L. & ECON. REV. 116, 117 (2006) (noting that in California, a capital trial alone, excluding subsequent appeals, costs from $200,000 to $1.5 million).
69. See Magagnini, supra note 65.
70. See id. Since 1988, the postconviction costs have risen substantially. See Patrick Hoge, Death-penalty Cases Involve Long, Laborious, Costly Process, SACRAMENTO BEE, Feb. 25, 1996, at A1. In 1988, there were only 249 death penalty appeals pending. See id. Now, there are 662. See Cal. Dep't of Corrs. & Rehab., supra note 47 (stating that the number of prisoners on California's death row as of January 29, 2007, is 662). As of 2005, the California Supreme Court spent "$11.8 million annually for court-appointed defense counsel." Rone Tempest, Death Row Often Means a Long Life; California Condemns Many Murderers, but Few Are Ever Executed, L.A. TIMES, Mar. 6, 2005, at B1. California Attorney General Bill Lockyer's office spends $11 million annually in representing the state in death penalty appeals. See id.
71. See Tempest, supra note 68 (citing California Department of Corrections Spokesperson Margot Boch) (stating that the cost of housing a condemned prisoner is $90,000 more than the cost of housing a prisoner in the general population); Death Penalty Info. Ctr., Death Penalty in California Is Very Costly, at http://www.deathpenaltyinfo.org/article.php?did=2058 (last visited May 10, 2007) (stating that the average cost of housing a prisoner who is neither on death row nor serving a sentence of life-without-parole is $34,150).
72. See Tempest, supra note 68.
73. See Stanford Fin. Aid Office, Stanford Undergraduate Student Budget, at http://www.stanford.edu/deptyfinaid/current/2_a_cost.html (last visited May 10, 2007).
74. See Tempest, supra note 68.
75. See id.
76. From November 23, 1992, until October 1, 1998, I served on the Committee on Defender Services of the Judicial Conference of the United States. During that time, I was privy to budgetary requests. In multiple cases, federal habeas corpus counsel's expenses exceeded $500,000. In at least one case, the expense claim exceeded $1 million.
77. Inmates Executed List, supra note 20. Robert Harris, Received: 03/06/1979, Executed: 04/21/1992, 13 years on death row. David Mason, Received: 01/27/1984, Executed: 08/24/1993, 9 years on death row. William Bonin, Received: 03/22/1982, Executed: 02/23/1996, 13 years on death row. Keith Williams, Received: 04/13/1979, Executed: 05/31/1996, 17 years on death row. Thomas Thompson, Received: 08/17/1984, Executed: 07/14/1998, 14 years on death row. Jaturun Siripongs, Received: 05/02/1983, Executed: 02/09/1999, 15 years on death row. Manuel Babbit, Received: 07/15/1982, Executed: 05/04/1999, 16 years on death row. Darrell Rich, Received: 01/23/1981, Executed: 03/15/2000, 19 years on death row. Robert Massie, Received: 05/28/1979, Executed: 03/27/2001, 21 years on death row. Stephen Anderson, Received: 07/30/1981, Executed: 01/29/2002, 20 years on death row. Donald Beardslee, Received: 03/14/1984, Executed: 01/19/2005, 20 years on death row. Stanley Williams, Received: 04/20/1981, Executed: 12/13/2005, 24 years on death row. Clarence Allen, Received: 12/02/1982, Executed: 01/17/2006, 23 years on death row.
78. See Cal. Dep't of Corrs. & Rehab., Condemned Inmates Who Have Died Since 1978, at http://www.cdc.state.ca.us/ReportsResearch/docs/ CIWHD.pdf (last visited May 10, 2007). See also Kuziemko, supra note 66, at 117 ("Capital trials rarely reduce prison costs, as less than 10% of those sentenced to death are executed.").
79. This figure is based on the 646 prisoners on death row as of the creation of the Docket Database, supra note 14.
80. See Knight v. Florida, 528 U.S. 990, 992 (1999) (Thomas, J., concurring in denial of certiorari).
81. CAL. CONST, of 1849, art. VI, § 4 (conferring jurisdiction over the California Supreme Court to hear "all criminal cases amounting to felony, on questions of law alone").
82. Id. ("The Supreme Court shall have appellate jurisdiction in all cases . . . .").
83. 1903 Cal. Stat. 738 (creating the California Courts of Appeal effective in 1904).
84. CAL. CONST, of 1849, art. VI, § 2 ("The supreme court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum.").
85. People v. Daniels, 1 Cal. 106 (1850).
86. See id. at 107.
87. See id.
88. CAL. CONST, of 1849, art. VI, § 2 (as amended 1862). See also JOSEPH R. GRODIN, CALVIN R. MASSEY & RICHARD B. CUNNINGHAM, THE CALIFORNIA STATE CONSTITUTION: A REFERENCE GUIDE 118 (1993) (describing the 1862 amendment).
89. CAL. CONST, of 1879. See also GRODIN ET AL., supra note 86, at 118 (describing the 1879 amendments).
90. CAL. CONST, of 1879, art. VI, § 2.
91. Id. ("In the determination of causes, all decisions of the court in bank or in departments shall be given in writing, and the grounds of the decision shall be stated.").
92. See Cal. Supreme Court Historical Soc'y, History of the California Supreme Court, at http://www.cschs.org/02_history/02_a.html (last visited May 9, 2007).
93. See id.
94. See id.
95. See 1903 Cal. Stat. 738 (amending article VI, section 4 of the California Constitution). The amended section 4 provided: "The state is hereby divided into three appellate districts, in each of which there shall be a district court of appeal consisting of three justices." Id.
96. The new provision provided that the Courts of Appeal had jurisdiction in all cases at law in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars, and does not amount to two thousand dollars; also, in all cases of forcible and unlawful entry and detainer . . . , in proceedings in insolvency, and in actions to prevent or abate a nuisance; in proceedings of mandamus, certiorari, and prohibition, usurpation of office, contesting elections and eminent domain, and in such other special proceedings as may be provided by law (excepting cases in which appellate jurisdiction is given to the supreme court); also, on questions of law alone, in all criminal cases prosecuted by indictment or information in a court of record, excepting criminal cases where judgment of death has been rendered. Id. at 739.
97. Id. at 738.
98. See GRODIN ET AL., supra note 86, at 119.
99. See id.
100. California Courts of Appeal, Centennial Celebration, at http://www.courtinfo.ca.gov/ courts/courtsofappeal (last visited May 10, 2007).
101. People v. Brown, 84 P. 204, 205 (Cal. 1906) ("Section 1240 of the Penal Code provides that in a criminal case 'appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party.'"). The current version of section 1240 of the California Penal Code is unrelated to taking appeals. Instead, it relates to the appointment of the state public defender to represent indigent defendants. See CAL. PENAL CODE § 1240 (West 2004).
102. See People v. Massie, 967 P.2d 29, 40 (Cal. 1998).
103. See id.
104. See id.
105. See id.
106. See id.
107. See id.
108. See CAL. PENAL CODE § 1239 (West 2004). Section 1239 provides, in part: "When upon any plea a judgment of death is rendered, an appeal is automatically taken by the defendant without any action by him or her or his or her counsel." The Legislature has reenacted section 1239, see 1982 Cal. Stat. 3355, and has amended it, see 1988 Cal. Stat. 2013, but it has never altered the requirement that an appeal is automatic when a defendant is sentenced to death.
109. People v. Stanworth, 457 P.2d 889, 898 (Cal. 1969) (quoting People v. Perry, 94 P.2d 559, 561 (Cal. 1939)).
110. Id. See also People v. Sheldon, 875 P.2d 83, 85 (Cal. 1994) ("[T]Ws appeal is automatic (Pen. Code, § 1239, subd. (b)), and we have no authority to allow defendant to waive the appeal."). In Massie, the court noted that the Legislature had acquiesced in Stanworth's holding that a condemned defendant cannot waive his automatic appeal. See Massie, 967 P.2d at 40 ("'When a statute has been construed by the courts, and the Legislature thereafter reenacts that statute without changing the interpretation put on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statute.'" (quoting People v. Ledesma, 939 P.2d 1310, 1316 (Cal. 1997) (quoting People v. Bouzas, 807 P.2d 1076, 1081 (Cal. 1991)))).
111. An average of twenty-eight prisoners are sentenced to death each year. See JUDICIAL COUNCIL OF CAL., 2006 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS, 1995-1996 THROUGH 2004-2005, at 4 (providing statistics from which the average can be calculated) [hereinafter 2006 STATISTICS REPORT].
112. See Tempest, supra note 68.
113. See Douglas v. California, 372 U.S. 353, 356 (1963) (holding that there is a right to counsel on appeal); Powell v. Alabama, 287 U.S. 45, 68-69 (1932) (holding that defendants subject to the death penalty are entitled to counsel).
114. CAL. R. CT. 8.605(b).
115. Id. at 8.605(d)(1).
116. Id. at 8.605(d)(2)(AMB).
117. Id. at 8.605(f)(1).
118. Id. at 8.605(d)(3).
119. Id. at 8.605(d)(5).
120. Id.
121. Donna Domino, Linda Rapattoni & Peter Blumberg, George Cites Death-case Gains: Justice Concedes Capital-appeals System is 'Dysfunctional, ' LA. DAILY J., Dec. 15, 2004, at 1.
122. Chief Justice George also acknowledges the lack of adequate compensation as a reason why there is a shortage of lawyers. See Bob Egelko, Effort to Speed Executions Stalls in Senate; Provision Unrelated to Security Had Been Added to Patriot Act, S.F. CHRON., Dec. 25, 2005, at B1 (quoting Chief Justice George as saying, "If California wants to have a death penalty, California needs to provide a level of funds where we can attract counsel.").
123. See PAYMENT GUIDELINES FOR APPOINTED COUNSEL REPRESENTING INDIGENT CRIMINAL APPELLANTS IN THE CALIFORNIA SUPREME COURT 13 (1993) (as amended 2006). Counsel representing state capital defendants in federal habeas corpus proceedings receive $160 to $163 per hour. See COMM. ON DEFENDER SERVS., JUDICIAL CONFERENCE OF THE U.S., REPORT 2 (2006). This too is woefully inadequate.
124. See, e.g., Kansas v. Marsh, 126 S. Ct. 2516 (2006) (considering an Eighth Amendment challenge to Kansas's death penalty scheme); House v. Bell, 126 S. Ct. 2064 (2006) (considering the applicability of AEDPA to a claim of actual innocence); Oregon v. Guzek, 546 U.S. 517 (2006) (considering a Fourteenth and Eighth Amendment argument related to the presentation of alibi evidence at a sentencing hearing); Brown v. Sanders, 546 U.S. 212 (2006) (considering a "constitutional" challenge to a jury's consideration of invalid "special circumstances" as aggravating evidence in favor of the death penalty); Hill v. McDonough, 126 S. Ct. 2096 (2006) (considering the applicability of AEDPA to an Eighth Amendment challenge to the method of execution brought pursuant to 42 U.S.C. § 1983).
125. In this section, three different approaches are used to determine what hourly rate civil attorneys can expect to receive for work at levels comparable to appointed capital counsel. No state court attorney's fees figures are discussed because the only available published figures pertain to federal court proceedings. A survey of twenty-eight cases from 2005 to 2006 in which attorneys fees were awarded to attorneys in civil cases by the United States District Courts situated in California revealed the average hourly rate for attorneys determined by the court using the Lodestar method was $287 per hour [hereinafter Survey]. See Fenberg v. Cowden Auto. Long Term Disability Plan, No. C-03-03898 SI, 2006 U.S. Dist. LEXIS 2575 (N.D. Cal. Jan. 11, 2006); Miller v. Vicorp Rests., Inc., No. C-03-00777 RMW, 2006 U.S. Dist. LEXIS 10112 (N.D. Cal. Feb. 23, 2006); Gunn v. Reliance Standard Life Ins. Co., 407 F. Supp. 2d 1162 (CD. Cal. 2006); Gens v. Ferrell, No. C-05-2183 MHP, 2005 U.S. Dist. LEXIS 39115 (N.D. Cal. Dec. 21, 2005); Martinez v. Longs Drug Stores, Inc., No. S-03-1843 DFL CMK, 2005 U.S. Dist. LEXIS 30226 (E.D. Cal. Nov. 28, 2005); White v. Save Mart Supermarkets, No. S-03-2402 MCE KJM, 2005 U.S. Dist. LEXIS 24386 (E.D. Cal. Oct. 20, 2005); Velasquez v. Khan, No. S-01-0246 MCE DAD, 2005 U.S. Dist. LEXIS 28956 (E.D. Cal. Sept. 28, 2005); Navarro v. Gen. Nutrition Corp., No. C-03-0603 SBA, 2005 U.S. Dist. LEXIS 39726 (N.D. Cal. Sept. 20, 2005); Doran v. Vicorp Rests., Inc., 407 F. Supp. 2d 1120 (CD. Cal. 2005); Foster Poultry, Inc. v. Suntrust Bank, No. 1:04-cv-05513-OWW-SMS, 2005 U.S. Dist. LEXIS 36491 (E.D. Cal. Aug. 20, 2005); Lopez v. S.F. Unified Sch. Dist., 385 F. Supp. 2d 981 (N.D. Cal. 2005); Johnson v. Credit Int'l, Inc., No. C-03-100 SC, 2005 U.S. Dist. LEXIS 21513 (N.D. Cal. July 28, 2005); Cancio v. Fin. Credit Network, Inc., No. C-04-03755 THE, 2005 U.S. Dist. LEXIS 13626 (N.D. Cal. July 6, 2005); Cortes v. Metro. Life Ins. Co., 380 F. Supp. 2d 1125 (CD. Cal. 2005); Vedatech, Inc. v. St. Paul Fire & Marine Ins. Co., Nos. C 04-1249 VRW, 04-1818 VRW, 04-1403 VRW, 2005 WL 1490445 (E.D. Cal. June 17, 2005); Fleming v. Kemper Nat'l Serv., Inc., 373 F. Supp. 2d 1000 (N.D. Cal. 2005); Directv, Inc. v. Atwal, No. S-032499 WBS DAD, 2005 WL 1388649 (E.D. Cal. June 8, 2005); White v. Sutherland, Inc., No. S-03-2080 CMK, 2005 WL 1366487 (E.D. Cal. May 6, 2005); Baerthlein v. Elec. Data Sys. Corp., No. C 05-00196 VRW, 2005 WL 818381 (N.D. Cal. Apr. 7, 2005); May v. Metro. Life Ins. Co., No. C 03-5056CW, 2005 WL 839291 (N.D. Cal. Apr. 7, 2005); Hubbard v. Twin Oaks Health & Rehab. Ctr., 406 F. Supp. 2d 1096 (E.D. Cal. 2005); Favela v. Target Corp., No. C-04-00895WHA(JCS), 2005 WL 701606 (N.D. Cal. Mar. 28, 2005); Loera v. County of Los Angeles, No. CV 047508PA, 2005 WL 1225982 (C.D. Cal. Mar. 21, 2005); Doran v. Corte Madera Inn Best Western, 360 F. Supp. 2d 1057 (N.D. Cal. 2005); Eiden v. Thrifty Payless, Inc., 407 F. Supp. 2d 1165 (E.D. Cal. 2005); Bonilla v. Starwood Hotels & Resorts Worldwide, Inc., 407 F. Supp. 2d 1107 (C.D. Cal. 2005); Signatures Network, Inc. v. Estefan, No. C-03-4796 SBA(BZ), 2005 WL 151928 (N.D. Cal. Jan. 24, 2005) (amended 2005 WL 1249522 (N.D. Cal. May 25, 2005)); Cambridge Elees. Corp. v. MGA Elees., Inc., No. CV02-8636MMM(PJWX), 2005 WL 927179 (CD. Cal. Jan. 18, 2005).
126. See Survey, supra note 123.
127. United States Attorney's Office for the District of Columbia, Laffey Matrix 2003-2007, at Explanatory Note 1, at http://www.usdoj.gov/usao/dc/ Divisions/Civil_Division/Laffey_Matrix_6.html (last visited May 10, 2007) [hereinafter Laffey Matrix 2003-2007].
128. See Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354 (D.D.C 1983).
129. See Laffey Matrix 2003-2007, supra note 125.
130. CAL. R. CT. 8.605(d)(1).
131. See Laffey Matrix 2003-2007, supra note 125.
132. Yahoo!, Inc. v. Net Games, Inc., 329 F. Supp. 2d 1179 (N.D. Cal. 2004).
133. See id. at 1189.
134. See id. at 1191.
135. See Baerthlein v. Elec. Data Sys. Corp., No. C 05-00196 VRW, 2005 WL 818381, at *5 (N.D. Cal. Apr. 7, 2005).
136. See Eiden v. Thrifty Payless, Inc., 407 F. Supp. 2d 1165, 1171 (E.D. Cal. 2005) (internal quotations omitted).
137. Declaration of Charles S. Donovan, Triton Container Int'l Ltd. v. Di Gregorio Navegaçao Ltda., No. 05-15535 (9th Cir. Apr. 12, 2006) (on file with author).
138. AM. BAR ASS'N, GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES 79 (1989).
139. Docket Database, supra note 14.
140. Id.
141. Id.
142. Id.
143. Id.
144. Id.
145. A note in the annual report for the Judicial Council of California Court Statistics Report for 1999 states: During the first year in which the provisions of Stats. 1996, ch. 1086 (AB 195) (concerning certification of the record in capital cases for completeness and accuracy) were in effect, compliance with the requirements of the applicable statutes and related rules proved to be inconsistent across the state. In many instances, the trial courts did not have sufficient resources or training to make effective use of the new provisions, and in others, were unaware of the new requirements because preparation of the appellate record in such cases traditionally had been deferred until the appointment of appellate counsel. JUDICIAL COUNCIL OF CAL., 1999 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS, 1988-1989 THROUGH 1997-1998, at 13.
146. Section 190.8 provides in relevant part: (d) The trial court shall certify the record for completeness and for incorporation of all corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition of the death sentence unless good cause is shown. However, this time period may be extended for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of court adopted by the Judicial Council. (g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council. CAL. PENAL CODE § 190.8(d), (g) (West 1999).
147. See JUDICIAL COUNCIL OF CAL., COURT STATISTICS REPORT FOR FISCAL YEARS 1997-2005 (on file with author).
148. Id.
149. Docket Database, supra note 14.
150. Id.
151. In fact, only one inmate sentenced in 2000 has filed an opening brief. Lester Wilson, who was sentenced on June 29, 2000, filed his opening brief in his automatic appeal on July 19, 2004. See id.
152. Id.
153. Id.
154. Id.
155. Id.
156. Letter from the Honorable Ronald M. George, Chief Justice of the California Supreme Court, to author (Dec. 26, 2006) (on file with author) [hereinafter George Letter].
157. Docket Database, supra note 14.
158. Id.
159. Id.
160. Id. This figure is as of January 19, 2006.
161. People v. Brown, 93 P.3d 244 (Cal. 2004).
162. Docket, People v. Brown, No. S087243 (Cal. Mar. 31, 2000), available at http://appellatecases.courtinfo.ca.gov/.
163. Docket, People v. Brown, No. S120253 (Cal. Nov. 4, 2003), available at http://appellatecases.courtinfo.ca.gov/.
164. Docket, Brown v. Ornoski, No. 2:05-cv-07964-AHM (E.D. Cal. Nov. 7, 2005), available at https://ecf.cacd.uscourts.gov.
165. Docket Database, supra note 14. This figure is larger than the current number of persons on death row because ( 1 ) some prisoners have had more than one judgment of death rendered against them, (2) the judgments of death or sentences of some prisoners have been vacated, and (3) some prisoners have died by means other than execution while on death row.
166. Id.
167. See Cal. Dep't of Corrs. & Rehab., supra note 76.
168. Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial certiorari).
169. Gregg v. Georgia, 428 U.S. 153 (1976).
170. Lackey, 514 U.S. at 1045 (internal citations omitted) (quoting Gregg, 428 U.S. at 183 (Stewart, Powell & Stevens, JJ.)).
171. Id.
172. Docket Database, supra note 14.
173. Lackey, 514 U.S. at 1045.
174. Id. (quoting McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens, Blackmun & Powell, JJ., respecting denial of certiorari)).
175. Id.
176. Allen v. Ornoski, 126 S. Ct. 1139 (2006) (Breyer, J., dissenting from denial of certiorari); Foster v. Florida, 537 U.S. 990 (2002) (Breyer, J., dissenting from same); Knight v. Florida, 528 U.S. 990, 993 (1999) (Breyer, J., dissenting from same); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting from same).
177. Elledge, 525 U.S. at 944.
178. Id. In Knight v. Florida, Justice Breyer noted: "It is difficult to deny the suffering inherent in a prolonged wait for execution - a matter which courts and individual judges have long recognized." Knight, 528 U.S. at 994. Although Justice Breyer did not use the term, this suffering has come to be known as the "death row phenomenon." See, e.g., Soering v. United Kingdom, 11 Eur. Ct. H.R. 439, 439 (1989) (coining term); Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner's Human Rights Under International Law?, 11 EUR. J. INT'L L. 833, 834 (2000) (discussing the meaning of the term).
179. Allen, 126 S. Ct. at 1139.
180. Id. (internal citations omitted) (quoting U.S. CONST. amend. VIII). The petitioner, Clarence Ray Allen, was executed at San Quentin Prison on January 17, 2006.
181. See generally Docket Database, supra note 14.
182. E.g., Douglas v. California, 372 U.S. 353, 357-58 (1963) ("There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself."); Griffin v. Illinois, 351 U.S. 12, 18 (1956) (addressing a state law that required all defendants to pay for a trial transcript in order to prepare an appeal, and stating that a state cannot grant appellate review "in a way that discriminates against some convicted defendants on account of their poverty").
183. CAL. CONST. art. VI, § 11.
184. 28 U.S.C. § 1254 (2000).
185. SUP. CT. R. 10.
186. Robert Weisberg has argued that allowing the California Courts of Appeal to review death sentences would threaten uniformity and increase arbitrariness. See Robert Weisberg, Redistributing the Wealth of Capital Cases: Changing Death Penalty Appeals in California, 28 SANTA CLARA L. REV. 243, 262-64 (1988).
187. If the federal system is adopted in California, any lack of uniformity, arbitrariness, or conflicts between the Courts of Appeal would be resolved by the grant of review by the California Supreme Court. See Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization, 72 NOTRE DAME L. REV. 1133, 1138 (1997) (arguing that with regard to the California Courts of Appeal hearing death penalty cases, "the uniformity of ultimate judgment would be preserved in the process of considering applications for discretionary review").
188. Venue was subsequently transferred to the District of Colorado. United States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1996).
189. United States v. McVeigh, 153 F.3d 1166, 1176 (10th Cir. 1998).
190. Id. at 1177.
191. Id. at 1179.
192. Id. at 1222.
193. McVeigh v. United States, 526 U.S. 1007 (1999).
194. United States v. McVeigh, 118 F. Supp. 2d 1137, 1139 (D. Colo. 2000).
195. Notice of Petitioner Timothy McVeigh Not to Appeal Re: Judgment, McVeigh v. United States, No. 1 :-CV-00494-RPM (D. Colo. Dec. 11, 2000).
196. Mike Tharp, Chitra Ragavan & Angie Cannon, A Notch in the Paranoia Belt: Timothy McVeigh Execution Delayed as Additional FBI Documents Are Discovered, U.S. NEWS & WORLD REP., May 21, 2001, at 20.
197. United States v. McVeigh, No. 96-CR-68-M, 2001 WL 611163 (D. Colo. June 6, 2001).
198. United States v. McVeigh, 9 F. App'x 980 (10th Cir. 2001).
199. Two of the lawyers who were appointed to represent Mr. McVeigh at his trial acted as his appellate counsel before the Tenth Circuit. Thus, there was no delay in appointing appellate counsel.
200. For automatic appeals decided by the California Supreme Court in 1998 (the year the Tenth Circuit affirmed Timothy McVeigh's conviction and sentence), the average delay between entry of the judgment of death and the issuance of the California Supreme Court's opinion was 8.85 years. See Docket Database, supra note 14. No automatic appeals have yet been decided for prisoners convicted and sentenced in California in 1997 (the year Timothy McVeigh was convicted and sentenced), so it is not possible to calculate the delay in California for the resolution of the automatic appeals of prisoners convicted in 1997, except to say that it is already in excess of nine years.
201. Id.
202. Id.
203. Id.
204. Id.
205. See Uelmen, supra note 184, at 1138-39.
206. Docket Database, supra note 14.
207. Id.
208. See CAL. CONST. art. VI, § 11; CAL. PENAL CODE § 1237 (West 2004).
209. See, e.g., People v. Ramirez, 139 P.3d 64, 111-12 (Cal. 2006) (considering jury instructions with regard to mitigating evidence on an automatic appeal from judgment of death).
210. People v. Bacigalupo, 862 P.2d 808, 813 (Cal. 1993) (internal citations omitted).
211. Docket Database, supra note 14.
212. Id.
213. See 2006 STATISTICS REPORT, supra note 109, at 20. The 2006 Statistics Report is based on information obtained from the California courts regarding appeals filed in 2004-2005. The report, however, assumes that the courts will decide approximately the same number of appeals in 2005-2006 as they did in 2004-2005. Id. at 15.
214. Id. at 4.
215. See id. at 25 (providing data from which the average can be calculated).
216. See id. at 4 (providing data from which the average can be calculated).
217. These percentages are equal to the percentage of automatic appeals from judgments of superior courts located in counties covered by each district. For instance, 14% of automatic appeals commenced since 1978 are from judgments of superior courts located in counties covered by the First District.
218. The First District includes Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma counties.
219. The Second District includes Los Angeles, Ventura, San Luis Obispo, and Santa Barbara counties.
220. The Third District includes Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo, and Yuba counties.
221. The Fourth District includes San Diego, Imperial, Riverside, Inyo, San Bernardino, and Orange counties.
222. The Fifth District includes Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne counties.
223. The Sixth District includes San Benito, Santa Clara, Santa Cruz, and Monterey counties.
224. Docket Database, supra note 14.
225. See POWELL COMMITTEE REPORT, supra note 9, at 5 ("The inmate under capital sentence, whose guilt frequently is never in question, has every incentive to delay the proceedings that must take place before that sentence is carried out.").
226. See infra Part V.B.2. With regard to appointment of counsel in state habeas corpus proceedings, I recommend below that the current system be changed to provide continuity of counsel for all state and federal habeas corpus proceedings. The compensation for such counsel should be borne by the federal and state governments.
227. Docket Database, supra note 14.
228. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (concluding that the execution of an individual who committed murder as a juvenile was unconstitutional under the Eighth Amendment); Atkins v. Virginia, 536 U.S. 304 (2002) (concluding that the execution of an individual who is mentally disabled was unconstitutional under the Eighth Amendment).
229. A few programs, similar to the one I am advocating, exist throughout the nation. For example, Boalt Hall School of Law sponsors a one-year clinic in which "Boalt Hall faculty members ... supervise law students in investigating cases, interviewing witnesses and launching death row appeals in state and federal court." Press Release, Janet Gilmore, UC Berkeley School of Law Announces Establishment of New Law Clinic, Program to Assist California Inmates on Death Row (Jan. 4, 2001), available at http://www.berkeley. edu/news/media/releases/2001/01/04_law.html; School of Law-Boalt Hall, Death Penalty Clinic, at http://www.law.berkeley.edu/clinics/dpclinic/ (last visited Mar. 1, 2007). In Boalt Hall's program, students do not work on automatic appeals; rather, they focus on petitions for writs of habeas corpus at the state and federal levels. See Press Release, supra. Similarly, New York University School of Law offers a year-long course that includes "working with clinic faculty and present and former staff attorneys of the NAACP Legal Defense Fund (LDF) on death cases as well as a variety of issues relating to capital punishment, habeas corpus, and the criminal justice system." NYU School of Law, Capital Defender Clinic-New York, at http://www.law.nyu.edu/clinics/year/capitalny/ (last visited Mar. 1, 2007). Students may work on actual cases, including cases from California. Id.
230. See Tempest, supra note 68 (setting forth housing costs for death row inmates); Docket Database, supra note 14 (setting forth statistics regarding the length of the average delay in exhausting state remedies).
231. See CAL. PENAL CODE § 1473 (West 2000) ("Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus ....").
232. CAL. CONST. of 1849, art. I, § 5.
233. CAL. CONST. art. VI, § 10. Section 10 of article VI was derived from what was formerly section 4 of article VI, adopted in 1879. It provided, "The Court shall also have power to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all other writs necessary or proper to the complete exercise of its appellate jurisdiction." Former section 4 also granted each justice "power to issue writs of habeas corpus to any part of the State, upon petition by or on behalf of any person held in actual custody, and make such writs returnable before himself, or the Supreme Court, or before any Superior Court in the State, or before any Judge thereof." In 1904, when the Courts of Appeal were created, section 4 was amended to provide the same power to the courts of appeal. See 1903 Cal. Stat. 739.
234. CAL. PENAL CODE § 1473.
235. In Carey v. Saffold, the Supreme Court noted: California's collateral review system differs from that of other States in that it does not require, technically speaking, appellate review of a lower court determination. Instead, it contemplates that a prisoner will file a new "original" habeas petition.... ... [A] prisoner who files that same petition in a higher, reviewing court will find that he can obtain the basic appellate review that he seeks, even though it is dubbed an "original" petition. Carey v. Saffold, 536 U.S. 214, 221-22 (2002). See also People v. Gallardo, 92 Cal. Rptr. 2d 161, 169 (Ct. App. 2000) ("Although the People may appeal the granting of a writ of habeas corpus, the detainee has no right to appeal its denial and must instead file a new habeas corpus petition in the reviewing court.").
236. SUPREME COURT POLICIES ARISING FROM JUDGMENTS OF DEATH, at Policy 3, 2-1 (Cal. 1989) [hereinafter DEATH POLICY].
237. CAL. GOV'T CODE § 68662 (West Supp. 2006). Section 68662 provides: The Supreme Court shall offer to appoint counsel to represent all state prisoners subject to a capital sentence for purposes of state postconviction proceedings, and shall enter an order containing one of the following: (a) The appointment of one or more counsel to represent the prisoner in postconviction state proceedings upon a finding that the person is indigent and has accepted the offer to appoint counsel or is unable to competently decide whether to accept or reject that offer. (b) A finding, after a hearing if necessary, that the prisoner rejected the offer to appoint counsel and made that decision with full understanding of the legal consequences of the decision. (c) The denial to appoint counsel upon a finding that the person is not indigent. Id.
238. Information provided by Frederick K. Ohlrich, Court Administrator and Clerk of the California Supreme Court (Aug. 18, 2006) (on file with author).
239. DEATH POLICY, supra note 233, at Policy 3, 2-2.1.
240. See People v. Waidla, 996 P.2d 46, 52 (Cal. 2000).
241. DEATH POLICY, supra note 233, at Policy 3, 1-1.
242. Habeas Center Needs Help for Death Row Inmates, CAL. BAR J., Dec. 2004.
243. CAL. GOV'T CODE § 68661(a) (West Supp. 2006).
244. Id. § 68661(c).
245. Id. § 68661(d).
246. See id. § 68661(a).
247. Ohlrich, supra note 235.
248. See Habeas Corpus Res. Ctr., Memorandum Regarding Law Firm Appointments in Capital State Habeas Corpus Proceedings (Mar. 6, 2006).
249. See id.
250. See People v. Romero, 883 P.2d 388, 391 (Cal. 1994) (alteration in original) (quoting In re Lawler, 588 P.2d 1257, 1259 (Cal. 1979)). See also People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995) ("An appellate court receiving such a petition evaluates it by asking whether, assuming the petition's factual allegations are true, the petitioner would be entitled to relief").
251. Romero, 883 P.2d at 391.
252. In re Seaton, 95 P.3d 896, 899 (Cal. 2004).
253. CAL. R. CT. 8.380(C).
254. Romero, 883 P.2d at 391 (citing CAL. PENAL CODE § 1476 (West 1994)).
255. Id. (internal citations omitted) (quoting People v. Getty, 123 Cal. Rptr. 704, 709 (Ct. App. 1975); CAL. PENAL CODE § 1477 (West 1975)).
256. Id. (internal citations omitted) (quoting In re Hochberg, 471 P.2d 1, 4 n.2 (Cal. 1970)).
257. See id. at 393.
258. Id. at 392.
259. Id. (quoting CAL. PENAL CODE § 1484 (West 1994)).
260. Id.
261. Id.
262. Id. at 392-93 (internal citations omitted).
263. Docket Database, supra note 14.
264. Many prisoners file more than one petition for habeas corpus.
265. Docket Database, supra note 14.
266. Id.
267. Id. Supreme Court staff has indicated that "[f]or the past 12 or so years ... we have ordered informal response briefing in almost every 'initial' petition, and in the vast majority of 'successive' petitions as well." See George Letter, supra note 154.
268. DEATH POLICY, supra note 233, at Policy 3, 1-1.1, 1-1.2.
269. Docket Database, supra note 14.
270. Kenneth Williams, The Antiterrorism and Effective Death Penalty Act: What's Wrong with It and How to Fix It, 33 CONN. L. REV. 919, 927-28 (2001) (suggesting that the efficacy of AEDPA is undermined because "state courts [do not] accept their ... responsibility seriously and provide death row inmates with a thorough, meaningful review of their claims.... [I]n too many states, the state habeas process is merely perfunctory.").
271. Letter from the Honorable Ronald M. George, Chief Justice of the California Supreme Court, to Diane Feinstein, U.S. Senator (Nov. 29, 2005) (on file with author).
272. Id.
273. Letter from Diane Feinstein, U.S. Senator, to Arnold Schwarzenegger, Governor of California (Dec. 8, 2005), available at http://feinstein. senate.gov/05releases/r-habeas.htm.
274. Id.
275. California Judicial Selection, at http://www.ajs.org/js/ CA_methods.htm (last visited May 10, 2007).
276. See 2006 STATISTICS REPORT, supra note 109, at 4 (providing data from which the average can be calculated).
277. See POWELL COMMITTEE REPORT, supra note 9, at 4.
278. 28 U.S.C. § 2254(a) (2000).
279. 18 U.S.C.A. § 3599(a)(2) (West 2006). See also McFarland v. Scott, 512 U.S. 849, 855 (1994) (concluding that a petitioner has the right to have counsel prepare an application for habeas corpus and that the district court has jurisdiction to enter a stay of execution based on the request for appointment of counsel).
280. 28 U.S.C. § 2254(b)(1)(A).
281. Rose v. Lundy, 455 U.S. 509, 510 (1982).
282. Rhines v. Weber, 544 U.S. 269, 275-77 (2005).
283. Id. at 275.
284. Id. at 277.
285. Id.
286. Id.
287. Id.
288. 28 U.S.C. § 2254(b)(2) (2000).
289. Id. § 2254(b)(3).
290. Id. § 2244(d)(1).
291. Id. §§ 2263-2266.
292. USA Patriot Improvement and Reauthorization Act of 2005, 28 U.S.C.A. § 2263 (a), (b) (West 2006).
293. 28 U.S.C.A. § 2261 (West 2006).
294. 28 U.S.C. § 2261(b) (2000) (current version at 28 U.S.C.A. § 2261(b)); Ashmus v. Woodford, 202 F.3d 1160 (9th Cir. 2000) (concluding that California's procedure for appointment of habeas counsel did not qualify under AEDPA).
295. 28 U.S.C.A. § 2253(a) (West 2006).
296. Id. § 2253(c)(1)(A).
297. 28 U.S.C. § 1254 (2000).
298. SUP. CT. R. 10.
299. 28 U.S.C. § 2244(a), (b)(1) (2000). Section 2244(a) provides: No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus .... Id. § 2244(a). Section 2244(b)(1) provides: "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." Id. § 2244(b)(1).
300. Id. § 2244(b)(2)(A).
301. Id. § 2244(b)(2)(B).
302. Docket Database, supra note 14.
303. Counsel may also be required to employ experts, with the court's approval, to unearth mitigating facts not presented at trial that may have persuaded the jury to recommend life imprisonment instead of death. The types of experts requested by counsel to assist them in preparing a federal habeas petition include the following: mitigation specialists, social historians, child abuse experts, addiction experts, institutional adjustment experts, psychologists, psychiatrists, neuropsychologists, neuropsychiatrists, toxicologists, pathologists, ballistics experts, fingerprint analysts, criminologists, mental health experts, atomic absorption experts, statisticians, criminalists, fair cross-sections experts, trial experts, fetal alcohol experts, hypnosis experts, sociological experts, gunshot residue experts, human vision experts, DNA experts, forensic serologists, eyewitness/memory experts, correctional consultants, jury selection experts, psychopharmacologists, serology experts, polygraph experts, blood spatter experts, social anthropologists, and rape experts.
304. Docket Database, supra note 14.
305. Id.
306. Id.
307. Id.
308. Id.
309. Id.
310. Id.
311. Id.
312. Id.
313. Id.
314. See Cooper v. Woodford, 358 F.3d 1117 (9th Cir. 2004) (en banc); Payton v. Woodford, 299 F.3d 815 (9th Cir. 2002) (en banc); Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (en banc); McDowell v. Calderon, 197 F.3d 1253 (9th Cir. 1999) (en banc); Calderon v. U.S. Dist. Court for the Cent. Dist. of Cal., 163 F.3d 530 (9th Cir. 1998) (en banc); Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc); Docket Database, supra note 14.
315. See, e.g., Tribune Editorial, Death Penalty Cases Unnecessarily Held up by Federal Judges, E. VALLEY TRIB. (Scottsdale, Ariz.), Aug. 20, 2006 (discussing the death penalty in Arizona and bemoaning the fact that capital cases are "sitting for five or six years on habeas review"); Egelko, supra note 120 (discussing a shortened statute of limitations for filing federal habeas corpus applications attached to a version of the Patriot Improvement and Reauthorization Act of 2005 and noting its intention to "shorten timetables for capital case appeals").
316. The dockets for prisoners who died while on death row by means other than execution were not reviewed or included in the Docket Database.