Jerry Brown and the Rose Bird factor


Jerry Brown hadn’t even formally announced that he was running for governor when the San Francisco Chronicle brought up the name of Rose Bird.

It’s fine to talk about where Brown is vulnerable, and there’s no shortage of material. The guy has a long public record; anyone who served two terms as governor in the 1970s and early 1980s, and two terms as mayor of Oakland, and one term as chair of the state Democratic Party, and did a couple of years as a KPFA talk show host, is going to have baggage. He’s also got a wealth of experience.

But the Rose Bird stuff is a cheap shot.

Here’s how the Chron describes it:

Rose Bird: As governor, Brown appointed Bird to be chief justice of the state Supreme Court. After she invalidated the death sentence of every case she reviewed, voters in 1986 made her and two others the first judges unseated from the court. To voters older than 45, Bird's name is shorthand for "liberal judges."

Actually, voters ousted her after a savage campaign funded by big business interests who were mad at her pro-labor and pro-free speech rulings. The death penalty was their weapon, and even then it was pretty bogus: The Bird Court consistently upheld the constitutionality of the death penalty.

But in the early 1980s, death-penalty law was unsettled in the United States; the U.S. Supreme Court had in 1977 ruled that executions were legal in America, but set strict standards for states to follow. Most states were struggling to sort out what the ruling meant and to figure out how to comply. By 1986, when Bird was under assault, 38 states had adopted death-penalty laws, but only 13 had actually executed anyone. In conservative states like Arkansas, Kentucky, Mississippi and Tennessee, judges were trying to determine if the laws fit the Supreme Court’s standards -- essentially what the Bird Court was doing in California.

And in California, the death-penalty statute had been written by John Briggs, the guy who wanted to keep gay people from teaching in the schools. The Briggs law was, by all accounts, poorly drafted, unclear and convoluted, and applying it under the federal standard was a challenge.

In other words, as we wrote at the time (In Defense of Rose Bird, Sept. 3, 1986):

The charge that the Bird court has refused to enforce the death penalty is simply inaccurate ... the California Supreme Court has simply been doing what most state and federal courts have done over the past ten years: carefully scrutinizing death sentences to ensure that they are valid under the federal and state constitutions and complex and ever-changing standards of the U.S. Supreme Court.

The real issue didn’t make the press. Again, from our cover story at the time:

For nine years, the California Supreme Court, headed by Chief Justice Bird, has led the nation in advancing the causes of free speech, civil liberties, environmental protection and the rights of tenants, senior citizens, women, minorities and organized labor.

 Big-business interests organized and funded a massive campaign to get rid of Bird -- not because of the death penalty but for purely economic reasons.

The Chronicle got it wrong back then, and is getting it wrong again today.


Well, my age or older, anyway, and I'm older than 45.

Most voters are just going to go "wow, what a pretty name."

Posted by Caroline on Mar. 02, 2010 @ 2:21 pm


I don't remember her either.

But the median age of a voter is 50.

Old folks may be losing their short-term memory, but they remember stuff from decades ago as if it was yesterday.

Posted by Tom Foolery on Mar. 02, 2010 @ 3:57 pm

I voted to remove that progressive Judge and all three of the other judges Jerry "moonbeam" "lord of the medflies" Brown appointed. He was a really Govenor then and he will be a rubber stamp for the senate and assembly who hasn't learned to live in their means and cut spending. We need lower taxes to encourage businesses and individuals to stay in california, not make them flee the state.

Posted by Dirty Harry on Mar. 02, 2010 @ 4:51 pm

I am sure that California's death penalty law was not perfectly written, but there really is no evidence that Rose Bird had any interest in fixing it. Instead she focused on always finding some technical issue in a case that enabled the Court to send it back down to the lower court. This outraged voters who clearly saw that she was just trying to avoid enforcing a law she did not agree with.

In addition, she did ludicrous things like making a ruling that invalidated all Spanish land grants -- thereby upsetting title to vast swaths of property in CA. That ruling like many others was overruled by the U.S. Supreme Court (and the over-rulings were often 9-0 and the Supremes were much more liberal then).

So while it is ideologically convenient to blame Bird's demise on Big Corporations, the fact is that she was an ideological and activist judge who was using the Supreme Court to enforce her policy preferences not the law. It is not surprising she was ousted in a landslide.

Posted by Wilson on Mar. 02, 2010 @ 5:33 pm

With corporate cash poised to soak elections, no wonder you hear her name invoked--it's not about Jerry Brown, or her rulings--but the remembrance of VICTORY of a BOUGHT RECALL election.

Her name is invoked to battle, to rise and poison democracy, through money or through fear...

Posted by Guest on Mar. 02, 2010 @ 7:25 pm

Because of Rose Bird we now have been paying to feed and house the Manson family. And as a bonus we get to go through the parole process every few years too. Because of Jerry Brown we got Rose Bird......I do remember him and would NEVER vote for him. EVER!!


Posted by Guest on Mar. 02, 2010 @ 7:33 pm

Nor do they have a factual leg.

For those who think that execution saves money over life imprisonment, let's take a minute to work through some numbers.

Nationally, the average death row inmate's age at arrest is 28. Assume it takes one year from time of arrest to be sentenced to death, making them 29.

Nationally, the average length of time to execution is 13 years. California pays an extra $90,000 per year over the cost of life imprisonment to keep an inmate on death row. Over 13 years, California will pay an extra $1.2 million to imprison an inmate on death row.

In 2008, the average cost of imprisoning an inmate for one year was $36,000. (This figure is somewhat inflated because it includes the death row population.) Giving you the benefit of the doubt, though, the average lifer would have to be imprisoned for 33 years -- or 20 years longer than the average death row prisoner -- before their imprisonment is a net cost to California compared to the death penalty. In other words, if a statistically average lifer and death row inmate were arrested at the same age, the lifer would have to live to the age of 61 before their imprisonment cost California more than the death row inmate's imprisonment and execution.

However, serving 20 years in prison takes 16 years off a prisoner's life expectancy. In other words, if a life prisoner arrested at 28 (the same age as average death row inmate) lives to 48, their life expectancy decreases to 61 (16 years subtracted from the national average of 77). Assuming that this relationship is constant (.8 years decrease in life expectancy for every year spent in prison), we would expect the average life prisoner to die at 55.

In short, it may offend you that "we are still paying to feed and house the Manson family." However, death row, as a whole, costs California more than life imprisonment. The plural of anecdote is not data.


Posted by Guest on Mar. 02, 2010 @ 9:38 pm

Why does anyone care about an election which was 1/4 of a century ago? Brown is too old to be governor but sadly for the CA Democratic party he's all we've got to offer.

And Tim - CA was a different state back then - whiter, more conservative and more Republican. Times have changed.

This stuff is so in the past. It's stupid of the Chronicle to bring it up and even dumber of the Guardian to take the bait - like they always do. The Chron says "jump" and the Guardian says "how high?"

Posted by Lucretia the Trollop on Mar. 02, 2010 @ 11:23 pm

I'm no opponent of the death penalty from a moral or philosophical position. I have assisted in the placement of several persons on Death Row, during my work as a homicide detective.

The idea of executions being more cost-effective than housing a state prisoner is ludicrous. The text above describing the "diminishing return" cycle of Life Sentence Vs. Death Row is only a small percentage of the costs involved in strapping someone onto the gurney. Also add the trial costs and attorney fees involved in the lengthy and tortuous appeals process involved in finally getting the inmate to the point of death warrant--and I dare say that same inmate could likely be housed for hundreds of years on the money it takes just to get him to that point.

So, from a pure cash-flow point of view, the death penalty is an egregiously expensive luxury. I think a more salient question on this issue is NOT whether the State is or isn't morally sound when executing a mad-dog killer.......but rather, is this EXTREMELY expensive process something that has priced itself out of affordability. I believe it has. With the ability to lock away the Charles Mansons and similar predators for life--no parole possible, just an appeals process that safeguards the rights of the accused--the time has come to cease this Kafka-esque kabuki theater.

Posted by Guest on Mar. 22, 2010 @ 7:36 pm

The Death Penalty, to my mind, should only be applied on an "ability to pay" for the appeals process basis, that is, only for the rich. That said, like marijuana prohibition, the death penalty is a luxury of an era that no longer exists, when such law and order enforcement priorities reflected an effort to deflect attention from fear of the end of white supremacy and the middle class.


Posted by marcos on Sep. 22, 2010 @ 9:26 am

People care because Jerry Brown is a crooked and has sunk California when he was appointed as Governor. If California should have impeached anyone it should have been Brown. When he was Mayor of Oakland, he tried to shut down schools. He tries to come back 20 years later and pretend that all that is water under the bridge. California is already ready to sink, and the last thing that we need is someone that doesn't know what they're doing. He figures 20 years later, there is a new generation of voters that don't remember his antics and moronic decisions... And peole stating who cares, are the targets. The fact that he is running just means that he has bigger balls than he has brains. Anyone that votes for him must be a lefty looney and doesn't do their research from when he tried to sink California in the past.

Posted by Guest on Aug. 23, 2010 @ 9:41 am

Before Jerry Brown appointed Rose Bird to the State Supreme Court, his friend Roger Mahony warned him that Bird was “flaky and vindictive” and would therefore be a poor choice for the court. After Brown appointed Bird to the court, she was confirmed by the narrowest of margins and soon thereafter it became obvious to all that Brown had appointed her for the singular purpose of destroying Capital Punishment. Even though voters threw her off the court, it appears that Brown and Bird were completely successful in their Jihad against the death penalty.

Bob Tyler

Posted by Guest on Sep. 22, 2010 @ 9:09 am

either way, when I see a Scott Peterson I wish him dead, but then I'm not a fan of turning these decisions over to the state. Being anti-death penalty and being a progressive seems a bid odd to me as they want to legislate every aspect of our lives, but thats a question for another day.

Comparing the cost of the trial and all the appeals being more than the cost of life in prison with no parole is a bit of a sophistry when put forth by the left (likely not homicide detective). The reason this all costs so much is that the constant legal scheming of the ant-death penalty lawyers, who are on the left.

This is another case like the alcohol fee, the left drives up the cost of fetching the same three hundred passed out hobo's and wants a gold star for their "compassion" and a new tax to pay for it. In the case of the death penalty they drive up the costs then say, "its so expensive lets just give them life."

Posted by matlock on Sep. 22, 2010 @ 9:46 am

This article is such crap... anyway you try to spin it, Jerry Brown appointed Rose Bird, She was responsible for the death row inmates' penalties that were reversed. She was the worst thing that happened to CA's judicial system and prison systems.

I really like how this article has no author(s). Obviously written by a Jerry Brown-fan.

Posted by Guest on Oct. 10, 2010 @ 10:56 am

charles manson`s death penalty was overturned by rose bird, thanks to jerry brown, i don`t care how much it cost , manson should have been put to death over 40yrs ago.

Posted by kenney on Oct. 12, 2010 @ 6:01 pm

I came across this blog while surfing the web on the California election. I could not help but take issue with the writer about the recall of Rose Bird since I have some insight.

I was a police officer in Orange County in the 1980s (long since retired). We had a murder in which a suspect entered a house took the two occupants to a rear bedroom and and shot them both in the head execution style. The male died instantly but the female survived after a long coma and months in the hospital.

The woman was going through a bitter divorce with her husband and it was her boyfriend who died. After a long and extensive investigation the hitman was identified and subsequently arrested. It took a jury less than 8 hours to convict him of murder and recommend the death penalty.

When the case got to the Ca Supreme Court Rose Bird overturned it, reasoning that because the suspect had taken a couple of pieces of jewelry from the victims dresser, his intent was robbery and could not be proven to be murder. Like many of her rulings against death penalty cases, she just made up reasons.

This ruling so incensed the Deputy D.A. who prosecuted the case that he took up the cause to recall Bird. He formed an alliance with other prosecutors throughout the state that formed the groundwork of the recall.

Posted by Guest on Oct. 15, 2010 @ 10:05 am

Related articles

  • California, from scratch

    A new band from Bay Area punk veterans — with members of Green Day and Jawbreaker — wants to earn your fandom on its own terms

  • "Uncle Leland" suspended from California Senate, with pay for now

  • Is there hope for California?