The question of capital punishment (the death penalty) has been a hot-button issue in the state of California for many years. While the courts and politicians have consistently moved toward abolishing the death penalty, voters have always (until recently) either refused to abolish it or fought to have it reinstated.

Capital punishment is the most severe form of punishment society can impose on a defendant who was convicted of a crime. Legal challenges are crucial because being put to death can't just be reversed or overturned by a court.

Put simply, the death penalty under the state's criminal justice system is highly controversial. Many believe juries don't always make the right decision in capital punishment cases. There have been cases where people sentenced to death were later proved innocent.

Still, the state has continued to sentence defendants to the death penalty, but most often for the crime of special circumstances, murder. California has over 700 death row inmates; the last execution was in 2006.

This raises an obvious question: does the death penalty still exist in California, and if so, when is it implemented? The short answer is yes; capital punishment is still on the books, but it is currently not being implemented or enforced.

In March 2019, California Governor Gavin Newsom announced a moratorium on imposing capital punishment through executive order, which means no inmates will be put to death.

Further, in December 2020, Los Angeles County prosecutors will no longer seek the death penalty. Let's discuss this issue further.

What Is the History of the Death Penalty in California?

The death penalty has a long and complicated history in California. It was first established as a punishment for a crime in 1851, although the first prisoner was not executed in the state until 1893. Hanging was the accepted method of execution until 1937, when the state changed the technique to lethal gas. Lethal injection was introduced in 1993.

Numerous attempts have been made to abolish the death penalty over the years through legislation, court cases, and ballot initiatives. So far, all of these attempts have failed.

After the California Supreme Court ruled capital punishment to be "cruel and unusual punishment" in 1972, California voters almost immediately amended the state Constitution to make it legal and mandatory in some instances.

The California Supreme Court ruled capital punishment unconstitutional in 1976, only to have the state legislature reinstate it in 1977. During this period of controversy, no one was executed in for 25 years—even though the death penalty remained the rule of law.

In 1994, a federal judge determined that execution by lethal gas was cruel and unusual punishment because of the likelihood that the person would feel pain. Thus, executions in California must be carried out by lethal injection.

The United States Supreme Court ruled that capital punishment was permissible as long as juries don't hold total discretion to decide who receives the death penalty and that the law does not make it mandatory for any crimes.

What is the Current Status?

As noted, more than 700 inmates are on death row in California than in any other state in the country. However, the political fight against capital punishment continues.

Voters struck down the most recent ballot initiative to abolish the death penalty in 2012. However, in March 2019, Governor Gavin Newsom signed an executive order that placed an indefinite moratorium on capital punishment in the state.

This means that while the death penalty is still technically on the books, no one is currently being put to death by the State of California. In January 2022, Governor Newsom took the further step of ordering the dismantling of California's "death row" (in San Quentin Prison).

If nothing changes, all death row inmates will be transferred to other facilities within two years. The current death row will be renovated into "something innovative and anchored in rehabilitation."

What Crimes Are Eligible for the Death Penalty?

Only a handful of specific crimes are eligible for the death penalty in California. These include:

• Penal Code 187 PC first-degree murder, with special circumstances. This is the most common crime for which the death penalty is issued. Examples of "special circumstances" include prior history of murder, murder of a law enforcement officer, firefighter, judge, witness, prosecutor, or jury member. A murder involving torture, murder using poison or explosives, murder in connection with gang activity, another severe felony, etc.
• Treason, such as going to war against the government.
• Perjury when it results in the execution of someone innocent.
• Sabotage of a train resulting in death.
• Interfering with U.S. war plans resulting in someone's death.
• Killing someone with a deadly weapon while serving a life sentence.

Is the Death Penalty Still Mandatory for Eligible Crimes?

No, it isn't. The death penalty can currently only be imposed by a jury during the "penalty phase" after finding the defendant guilty of the crime, and jurors may choose between imposing the death penalty and life in prison without parole.

California Penal Code 190.3 PC lays out the aggravating factors a jury can consider to help them decide if a defendant should get the death penalty. The prosecutor is not allowed to present any aggravating factors, not on this list. The factors that the jury may consider when deciding on the death penalty include:

• The nature and circumstances of the offense;
• The defendant's prior history of violent criminal activity;
• Prior felony convictions;
• The relative age of the defendant when the crime was committed
• The mental condition of the defendant, if the defendant was emotionally or mentally disturbed, might be a mitigating factor;
• Whether the defendant was pressured by someone else to commit the crime or whether they aided and abetted someone else in the commission of the crime.

In a death penalty case, the jury should also consider mitigating factors that lessen the severity of the offense.

These include the defendant's young age when they committed the crime, extreme emotional disturbance, post-traumatic stress disorder (PTSD), peer coercion, and whether they were only a minor participant in the crime. A defendant's criminal lawyer could present almost any evidence to show why they should not receive the death penalty.

The future of capital punishment in California is uncertain. While it is still technically legal, Governor Newsom's 2019 executive order and subsequent actions have effectively ended the death penalty in the state, at least for the time being.

As of December 2020, prosecutors in Los Angeles County are no longer seeking the death penalty for eligible crimes. And recent polls indicate that an increasing number of voters may be shifting their views away from capital punishment.

The criminal defense law firm of Eisner Gorin LLP is located in Los Angeles, California. You can contact us by phone or using the contact form.