Appellate Law

Supreme Court proposal to reduce backlog of death penalty cases

By Kimberly A. Kralowec

As reported in the San Francisco Chronicle and the Los Angeles Times, last week the California Supreme Court issued a proposal for reducing the backlog of death penalty cases now pending on its docket. The proposal is to amend the California Constitution to allow the Supreme Court to transfer death penalty appeals to the Court of Appeal for decision. All of the cases would then be subject to Supreme Court review, but if the Court "concludes that the decision (1) contains no error affecting the judgment, (2) presents no need to secure uniformity of decision, and (3) does not require resolution of an important question of law, the Supreme Court may summarily affirm the judgment of the court of appeal in an order published in the Official Reports."

Part of the rationale for the proposal is that it would "permit the Supreme Court to devote sufficient time and resources to other important appellate litigation that deserves the court?s attention." As the proposal further explains:

[T]he ever-increasing backlog of automatic appeals, constituting approximately 20 percent of the court?s annual opinion output (up approximately 66 percent since 1985, and approximately 400 percent since 1940-1970), threatens to overwhelm the Supreme Court?s docket, impairing its ability to grant review to provide necessary guidance concerning other important issues arising in civil and criminal law. (Compare Uelmen, The Future of State Supreme Courts as Institutions in the Law, 72 Notre Dame L. Rev. (1997) 1133, 1135-1136 [reporting that capital appeal opinions by state supreme courts increased more than 30 percent from 5.5 percent of all published opinions in 1985, to 8.3 percent of all published opinions in 1995 ? while overall opinion production by the same state supreme courts decreased more than 13 percent].)

The proposal would probably lengthen the Court of Appeal's average appeal processing time, but the Supreme Court's enhanced ability to decide important issues in civil cases would be worth it (so long as the death penalty litigants' due process rights are preserved). The Daily Journal's coverage of the proposal (subscription) mentioned the concerns of some death-penalty defense attorneys, who worry that the proposal would create a two-tiered system that would increase, not lessen, the delay, or allow a death sentence to be affirmed by a two-judge majority without any further meaningful appellate review. The Daily Journal also interviewed Chief Justice George, who "said some attorneys intimidated to appear before the Supreme Court might be more willing to handle capital appeals at the appellate-court level." Intimidated to appear before the Supreme Court? I don't know any lawyers who fit that description.

Full post as published by The Appellate Practitioner on November 26, 2007 (boomark / email).