Cal. Capital Appeal Proposal

The California Supreme Court has issued this press release with a proposal to modify the system of appealing all capital cases directly to the Supreme Court. In noncapital felony cases, the appeal lies to the intermediate appellate court, the Court of Appeal, and review in the Supreme Court is discretionary. For capital cases, the California Constitution presently vests the appeal exclusively in the Supreme Court. That court has a huge backlog.

There is much to be said for moving most of the load to the Courts of Appeal. There are simply more of them, and at least in theory more hands should make quicker work. Although as Latzer and Cauthen have pointed out, a two-stage process is generally slower than one stage, that is not necessarily true where the one stage is overloaded to the point of breakdown.

However, we know from experience that there are many judges who approach capital cases looking for an excuse to reverse. We saw it in the California Supreme Court through 1986. We see it in the Ninth Circuit today. We would doubtless see it in the California Courts of Appeal if they had jurisdiction. Allowing a simple majority of a three-judge panel to overturn a death sentence with only discretionary review of that decision would mean that affirmance or reversal depends as much on what panel is drawn as it does on the merits of the case.

This proposal addresses that issue by requiring the California Supreme Court to review the decisions and allowing summary affirmance only if the court agrees that the Court of Appeal decision is correct. In theory, at least, this is different from the discretion to review the case or not that the California Supreme Court has in noncapital cases and the United States Supreme Court has in almost all cases.

In practice, though, is there really a difference between summary affirmance and denial of certiorari or review? By the time the U.S. Supreme Court’s mandatory appeal docket was shrunk to its present size, there was not a lot of difference.

This is an idea worth considering, along with other possibilities. The change would require a constitutional amendment, though, and getting 2/3 of California’s present Legislature to approve anything positive is a longshot. It might require an initiative.

Originally posted on Crime & Consequences.