Legal footnote tests state death penalty

Is capital punishment cruel and unusual when few are executed?

Reynolds Holding,

May 26, 2002  

It is a single sentence in a legal footnote from an opinion 30 years old, an obscure fragment of Supreme Court advice that judges have largely ignored.

But as DNA tests and bipartisan commissions shake the nation's confidence in capital punishment, this all-but-forgotten phrase offers a legal argument so compelling that it has driven a federal judge in San Francisco to the verge of striking down California's death penalty.

 The phrase suggests that any death penalty violates the Eighth Amendment's ban on cruel and unusual punishment when only a few of the murderers eligible for capital punishment are actually sentenced to death.

 "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual," wrote Justice Potter Stewart in the 1972 Supreme Court decision striking down capital punishment.

 Thirty years later, U.S. District Judge Thelton Henderson has ordered an unprecedented hearing this year on whether the same constitutional flaw taints California's death penalty.

 Almost any murderer qualifies for capital punishment under the dozens of "special circumstances" added to the California law in the late 1970s, when anti-crime sentiment was running high. Attorneys for Death Row inmate Troy Ashmus intend to show Henderson that juries arbitrarily sentence only an unlucky few murderers to execution by lethal injection.

 State prosecutors dismiss the issue as "absolutely frivolous." But some legal experts believe that if any case can end capital punishment in California, it is this one.

 "I think this is the most significant challenge to the death penalty in this state in decades," said Gerald Uelmen, dean of Santa Clara University's law school and an authority on capital punishment. "The only surprise to me is that it has taken us so long to get here."

 Opponents of capital punishment derive hope from Henderson's record as a liberal judge and the nation's growing criticism of the death penalty.

 Two years ago, Illinois Gov. George Ryan declared a moratorium on executions, citing cases of wrongly convicted inmates on death row. Early last month, the bipartisan commission he appointed to study capital punishment released recommendations for overhauling or abolishing the Illinois death penalty.

 On April 25, U.S. District Judge Jed Rakoff in New York said he would void the federal death penalty unless prosecutors could change his mind. He based his decision on evidence that "innocent people have been executed."

 On May 9, Maryland became the second state to impose a moratorium, suspending executions while researchers study whether capital punishment has discriminated against murderers on the basis of their race or location.

 The nauseating facts of the Ashmus case make it an unlikely choice for challenging California's death penalty.

 On May 19, 1984, police found 7-year-old Marcella Davis lying dead in the weeds of a shallow pit near Sacramento's Santa Anita Park. On June 13, 1986, a jury returned a death verdict against Ashmus after finding that the twice- convicted felon had murdered Davis while sexually assaulting her.

 Ashmus' challenge to California's death penalty asserts that the law should not apply to anyone because it makes virtually every first-degree murderer -- including some who kill unintentionally -- eligible for capital punishment.

 In the Supreme Court's 1972 death-penalty decision, Furman vs. Georgia, each of the nine justices wrote a separate opinion. But the five justices in the majority essentially agreed that the extreme breadth of Georgia's and Texas' capital statutes -- and their failure to define the killers who truly deserved execution -- made death a sentence "wantonly and freakishly imposed," said Justice Stewart.

 TEMPORARY END TO EXECUTIONS

The decision temporarily ended capital punishment in the United States. But four years later, the court gave its blessing to a revised Georgia statute that "channeled" juror discretion by "narrowing the class of murderers subject to capital punishment."

 Given a court-tested model, California and other states adopted similar "narrowing" statutes that listed rape, multiple killings and several other circumstances that could raise murder to an offense punishable by death.

 But pressure to fight crime in the late 1970s led California to expand the list of death-eligible offenses once again.

 A 1978 initiative sponsored by Republican state Sen. John Briggs of Orange County more than doubled the number of special circumstances to 26, including, for example, murders of firefighters or judges, murders while committing sodomy or wrecking trains, murders by poison or while lying in wait and murders that were "especially heinous, atrocious, or cruel, manifesting exceptional depravity." A ballot argument said the initiative would ensure that capital punishment applied to "every murderer."

 Later bills and initiatives created more special circumstances. In 1982, the Legislature added the knowing use of armor-piercing bullets. In 1990, Proposition 115 added mayhem or rape by an instrument. In 1996, Proposition 196 added carjacking, murder of a juror and murder by shooting a gun from a car.

 By 1997, any one of 32 special circumstances could make a first-degree murderer eligible for capital punishment. The California statute seemed ripe for attack.

 Although attorneys defending death row inmates did attack, the courts dismissed their arguments, largely because no one could define how much "narrowing" a death-penalty statute should do to pass constitutional muster.

 "I raised this issue every time," says San Francisco attorney Timothy Foley,

 who has handled numerous death-penalty appeals, "and the courts just wouldn't deal with it. They'd say, 'Oh, yeah, yeah, yeah . . . we have previously determined that the statute is just fine.' "

 A 30-YEAR-OLD FOOTNOTE

Finally, in a 1997 law review article, University of San Francisco law Professor Steven Shatz and attorney Nina Rivkind drew attention to the sentence in the 30-year-old footnote.

 The note said only 15 to 20 percent of the murderers eligible for capital punishment received death sentences. Its author, U.S. Supreme Court Chief Justice Warren Burger, contended in his dissent to the Furman decision that the figures showed how carefully juries exercised their power of life and death.

 But a majority of the high court justices in the Furman and later cases cited the figures as evidence that death-penalty laws were so broad, juries were arbitrarily selecting only a few killers for execution.

 Narrower laws reserving the ultimate punishment for the worst of the worst offenders, reasoned the justices, would limit jury discretion, reduce arbitrary decisions -- and force jurors to raise the percentage of the death- eligible killers they actually sentenced to death.

 As Shatz and Rivkind explained, the percentage was the test: Anything less than 15 to 20 percent signaled an unconstitutionally broad statute. And in a study of murder cases from 1988-92, Shatz and Rivkind discovered that California's percentage was only 11.4.

 The Supreme Court must either hold "California's scheme unconstitutional," the authors wrote, or "abandon . . . any pretense that the Constitution requires the death penalty to be administered in an evenhanded and nonarbitrary manner."

 The article galvanized death-penalty opponents. Legal briefs citing the study swept into California courts. And on March 1, 2001, defense lawyers found a receptive ear.

 In the first opinion of its kind, Judge Henderson wrote that "allegations of a death sentence ratio of 11.4 percent, if proven, could establish that the California scheme" constitutes cruel and unusual punishment.

 Henderson's ruling merely grants Ashmus' attorneys the opportunity to present their evidence. It is a long way to the legally and politically difficult conclusion that California's death penalty violates the Constitution -- a decision that would halt executions in the state.

 Since Henderson ruled, the U.S. Court of Appeals in San Francisco has rejected two similar challenges to the California statute, although lawyers say the evidence supporting those challenges was far less compelling than the evidence that Ashmus' lawyers will present.

  OFFICIAL CALLS IT 'FRIVOLOUS'

In any event, Deputy Attorney General Ronald Matthias, a prosecutor in the Ashmus case, argues that attorneys have misread Supreme Court precedent. He says he is sure that "the claim is going nowhere. It is frivolous, absolutely frivolous."

 Many defense lawyers also believe Henderson will leave the system intact. But if he does not strike down California's death penalty as cruel and unusual punishment, some attorneys say they are confident that someone eventually will.

 "There is something wrong here," says Foley, "and at some point somebody is going to have to face the issue and say, 'This has got to be fixed.' "