Cruel and unconstitutional

California's death penalty is legally unsound

By A.C. Thompson

In the first minutes of Jan. 29, convicted murderer Steven Anderson became the 10th person killed by the state of California since the reinstatement of capital punishment some 25 years ago. In 1980, Anderson, 48, broke into the house of an 81-year-old woman, robbed her, and shot her in the face with a 45-caliber handgun.

Discussing Anderson's fate, capital punishment foes did the usual. They slammed the man's attorney, S. Donald Ames, described by a federal appeals court as incompetent and bumbling, who didn't bother to meet Anderson before the trial, called only two witnesses to the stand during the proceedings, and then – amazingly – informed the jury that Anderson was guilty. They pilloried the blood-hungry San Bernardino County district attorney who sent Anderson to death row. They dredged up clues that could point to the very unlikely possibility of the man's innocence.

But they didn't bring up one salient point: California's application of the death penalty, in the eyes of some fairly astute legal scholars, is patently unconstitutional.

The idea first surfaced in a 1997 article by Steven F. Shatz and Nina Rivkind in the New York University Journal of Law, and it rests on the authority of Furman v. Georgia, the landmark U.S. Supreme Court decision. Shatz and Rivkind's line of reasoning, "if recognized, would throw out the death penalty for virtually everybody on death row," says Shatz, a professor at the University of San Francisco School of Law. According to the scholars, California's capital punishment statute doesn't meet guidelines set down by the high court.

"This is a huge issue," argues Scott F. Kauffman, a San Francisco defense lawyer who works primarily on capital cases. The federal judiciary "could rule that California's death penalty scheme is unconstitutional."

With 1972's Furman decision, the high court voided the death penalty statutes of Georgia and other states, ruling the laws unconstitutional under the 8th (cruel and unusual punishment) and 14th (equal protection) Amendments.

In the eyes of the court, a key flaw in the death penalty at that time was the incredibly arbitrary way in which it was doled out. Opining with the majority, Justice Potter Stewart found that capital punishment, as then applied, was "cruel and unusual in the same way being struck by lightning is cruel and unusual." Stewart's reasoning: out of all the convicted murderers and rapists eligible for execution, only "a capriciously selected random handful" were actually being sent to the death chamber – and they weren't necessarily the perpetrators of the most heinous crimes.

The implication of Furman was that to be equitable, states had to narrow their laws so that only the proverbial worst of the worst were eligible for execution. In 1976 the court gave the go-ahead for states to start killing again – as long as they'd trimmed back the breadth of their death penalty statutes.

Since then, California has gone the other way, vastly enlarging its capital punishment statute in apparent contradiction to the high court's mandate. Today virtually all first-degree murderers in this state are eligible for the death penalty. Yet only about 10 percent are being sentenced to death – primarily people of color, poor whites, and people in counties with overzealous prosecutors, like Riverside and Orange.

During the year 2000, for example, 399 first-degree killers were sent to the state pen, while 29 murderers were shipped off to death row.

"The proponents of the death penalty have constantly used propositions and legislation to expand the terrain of the death penalty," explains Theodore Hamm, author of Rebel and a Cause: Caryl Chessman and the Politics of the Death Penalty in Postwar California, 1948-1974. "When you have somebody like Anderson who got executed for a crime that most people are getting life in prison for, well, that raises a whole set of questions."

Despite the looming legal questions, Hamm, an assistant professor of metropolitan studies at New York University, has little faith in the federal courts to correct the situation. "It's a great argument, but it's conditional on the courts recognizing this contradiction, which I don't think is going to happen."

But it's not impossible: One jurist now exploring the issue is maverick U.S. District Judge Thelton Henderson, who is considering the case of condemned California inmate Troy Adams Ashmus. "A court should say, 'The legislature should go back and draft something that really focuses on the worst of the worst,' " says Shatz, who has filed a declaration in the case. "Even among people who commit first-degree murder there are gradations of awfulness."

E-mail A.C. Thompson at ac_thompson@sfbg.com.