History of Capital Punishment in California
Legal executions in California were authorized under the Criminal Practices Act of 1851. On February 14, 1872, capital punishment was incorporated into the Penal Code, stating:
A judgment of death must be executed within the walls or yard of a jail, or some convenient private place in the county. The Sheriff of the county must be present at the execution, and must invite the presence of a physician, the District Attorney of the county, and at least twelve reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such ministers of the gospel, not exceeding two, as the defendant may name, and any persons, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same.
The various counties may have some records of the executions conducted under the jurisdiction of the counties, but the department knows of no compilation of these.
Capital punishment on a county level continued until an amendment by the Legislature in 1891 provided:
A judgment of death must be executed within the walls of one of the State Prisons designated by the Court by which judgment is rendered.
In this statute, the warden replaced the sheriff as the person who must be present at the execution and invitation to the attorney general, rather than to the district attorney, was required.
Executions were conducted at both of the California state prisons then existing – San Quentin and Folsom. There apparently was no official rule by which judges ordered men hanged at Folsom rather than San Quentin or vice versa. However, it was customary to send recidivists to Folsom.
The first state-conducted execution was held March 3, 1893 at San Quentin. The first execution at Folsom was December 13, 1895.
In 1937, the Legislature provided that lethal gas replace hanging, with August 27, 1937 as the effective date. The law did not affect the execution method for those already sentenced. As a result, the last execution by hanging at Folsom was conducted December 3, 1937. The last execution by hanging at San Quentin was held May 1, 1942; the defendant had been convicted of murder in 1936.
A total of 215 inmates were hanged at San Quentin and a total of 92 were hanged at Folsom.
The only lethal gas chamber in the state was constructed at San Quentin. The first execution by lethal gas was conducted December 2, 1938. From that date through 1967 a total of 194 persons were executed by gas, all at San Quentin. This total includes four (4) women.
Legal Challenges and Changes
For 25 years after 1967, there were no executions in California due to various State and United States Supreme Court decisions.
In 1972, the California Supreme Court found that the death penalty constituted cruel and unusual punishment under the state constitution. As a result, 107 individuals had their sentences changed to other than death. In November 1972, nine months after the decision, the California electorate amended the state constitution and overruled the State Supreme Court.
In 1973, the United States Supreme Court held that the death penalty was unconstitutional as it was being administered at that time in a number of states.
California legislation was passed in 1973 which made the death penalty mandatory in certain cases under certain conditions. Among these were kidnapping if the victim dies, train wrecking if any person dies, assault by a life prisoner if the victim dies within a year, treason against the state, and first-degree murder under specific conditions (for hire, of a peace officer, of a witness to prevent testimony, if committed during a robbery or burglary, if committed during the course of a rape by force, if committed during performance of lewd and lascivious acts upon children, by persons previously convicted of murder).
In late 1976, the California Supreme Court, basing its decision on a United States Supreme Court ruling earlier that year, held that the California death penalty statute was unconstitutional under the Federal Constitution because it did not allow the defendant to present any evidence in mitigation. Following this ruling, 70 inmates had their sentences changed to other than death.
Capital Punishment Reinstated
The California State Legislature re-enacted the death penalty statute in 1977. Under the new statute, evidence in mitigation was permitted.
The death penalty was reinstated as a possible punishment for first-degree murder under certain conditions. These "special circumstances" include: murder for financial gain, murder by a person previously convicted of murder, murder of multiple victims, murder with torture, murder of a peace officer, murder of a witness to prevent testimony and several other murders under particular circumstances.
In 1977, the Penal Code also was revised to include the sentence of life imprisonment without the possibility of parole. At that time, the punishment for kidnapping for ransom, extortion, or robbery was changed from death to life without parole. Treason, train derailing or wrecking, and securing the death of an innocent person through perjury became punishable by death or life imprisonment without parole.
Proposition 7, on the California ballot in November 1978, superseded the 1977 statutes and is the death penalty statute under which California currently operates.
Under state law, cases in which the death penalty has been decreed are automatically reviewed by the State Supreme Court. The Supreme Court may:
Affirm the conviction and the death sentence;
Affirm the conviction but reverse the death sentence (which results in a retrial of the penalty phase only); or
Reverse the conviction (which results in a complete new trial).
Even if the California Supreme Court affirms the death sentence, the inmate can initiate appeals on separate constitutional issues. Called "writs of habeas corpus," these appeals may be heard in both state and federal courts.
Although the death penalty was reinstated in 1978, no executions were carried out in California until April 1992 when Robert Alton Harris was put to death in the San Quentin gas chamber. This was the first execution in more than 25 years.
In January 1993, a new law went into effect allowing inmates to choose lethal injection or lethal gas as the method of execution. In August 1993, condemned inmate David Mason was executed after voluntarily waiving his federal appeals. Because Mason did not choose a method of execution, he was put to death by lethal gas, as the law then stipulated.
In October 1994, a U.S. District Judge, Northern District (San Francisco) ruled that the gas chamber was cruel and unusual punishment, barring the state from using that method of execution. That ruling was upheld by the U.S. Ninth Circuit Court of Appeals in February, 1996.
That same year, the Penal Code was modified to state that if either manner of execution is held invalid, the punishment of death shall be imposed by the alternative means. The law further stipulated that lethal injection become the "default" method of execution should an inmate fail to choose. Serial killer William Bonin was executed on February 23, 1996 by lethal injection, the first California execution using that method.
In February 2006, condemned inmate Michael Angelo Morales’ execution was stayed because of his claim that California’s administration of its lethal injection protocol violated the Eighth Amendment’s prohibition of cruel and unusual punishment. On December 15 of that year, the U.S. District Court held that “California’s lethal-injection protocol – as actually administered in practice – create[d] an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eight Amendment.” The Court also stated that “Defendants’ implementation of lethal injection is broken, but it can be fixed.”
In January 2007, the Governor’s Office submitted a response to the Court’s December 15, 2006 Memorandum of Intended Decision. The Court had identified five specific deficiencies in California’s lethal injection protocol arising from the case of Morales v. Tilton. The specific deficiencies identified were:
Inconsistent and unreliable screening of execution team members;
A lack of meaningful training, supervision, and oversight of the execution team;
Inconsistent and unreliable record keeping;
Improper mixing, preparation, and administration of sodium thiopental by the execution team; and
Inadequate lighting, overcrowded conditions, and poorly designed facilities in which the execution team must work.
The Governor immediately directed CDCR to undertake a thorough review of all aspects of its lethal injection protocols. CDCR informed the court it would undertake a thorough review and submit to the Court by May 15, 2007 a revised process.
On May 15, 2007 CDCR released a report to the Court proposing revisions to the lethal injection protocol. In order to address the Court’s concerns and improve the lethal injection protocol, the State:
Established a screening process for selection of execution team members and a periodic review process for team members.
Established a comprehensive training program for all execution team members. The training regimen focused on custody and care of the condemned inmate, the infusion process, intravenous application and vein access, characteristics and effects of each chemical used in the process, proper preparation and mixing of chemicals, the security of the lethal injection facility, proper record keeping and other areas.
Developed standardized record keeping to ensure there are complete and reliable records of each execution. The State developed specific forms, processes and formats to ensure completeness, accuracy and consistency and provided specialized training.
Developed training processes for the proper use of sodium thiopental. Training processes were developed for proper mixing, preparation and administration of sodium thiopental.
Recommended improvements to the lethal injection facility at San Quentin State Prison, including steps to ensure adequate equipment, lighting and space. Current law requires that all executions be conducted within the walls of San Quentin State Prison. In 2007, a lethal injection facility was constructed to address the U.S. District Court’s concerns.
Proposed revisions to the lethal injection protocol, including modifying the procedures used to administer the lethal injection. The State consulted with experts and visited other jurisdictions. The revised protocol will ensure the procedure does not create an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment’s prohibition against cruel and unusual punishment.
In November 2007, the Marin County Superior Court held that the Administrative Procedure Act required CDCR to promulgate the protocol as a regulation. A lethal injection protocol had been in effect since 1993. No court had required it to be promulgated as a regulation.
In April 2009, CDCR submitted draft lethal injection regulations to the Office of Administrative Law (OAL). On May 1, 2009, CDCR posted the notice of proposed regulations in the OAL Register and provided public notice on its Internet website. The public comment period began on May 1, 2009. On June 30, 2009 CDCR held a public hearing regarding the proposed regulations. In January 2010 CDCR issued a notice of modification to the text of the proposed lethal injection regulations. The changes in the re-notice were in response to comments received regarding the originally proposed regulation text.
On April 29, 2010 CDCR submitted its final rulemaking package for the lethal injection regulations to the OAL. On June 8, the OAL notified CDCR that it was disapproving the regulations submitted on April 29. On June 11, CDCR published a second re-notice to the public addressing the issues raised by the OAL, and after accepting and responding to public comments, re-submitted its regulations on July 6, 2010.
On July 30, 2010, the OAL notified CDCR that it had approved and certified for adoption the regulations for lethal injection. The rulemaking record was filed with the Secretary of State the same day. August 29, 2010 is the permanent effective date of the regulations.
Inmates on Condemned Status
All male prisoners on condemned status are housed at a maximum-security custody level in three units at San Quentin State Prison. Females are housed in a maximum-security unit at Central California Women’s Facility in Chowchilla. The number of condemned inmates has increased steadily since 1978. A current statistical summary of all condemned inmates currently under supervision and related material about capital punishment is available on this website.
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