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 by hanging were conducted at both San Quentin State Prison and Folsom State Prison. 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.
On August 27, 1937, the California State Legislature replaced hanging as the method of capital punishment with lethal gas. 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 92 were hanged at Folsom.
The gas chamber was installed at San Quentin State Prison in 1938. On December 2, 1938, the first execution by lethal gas was conducted. From that date through 1967, 194 people – including four women – were executed by gas, all at San Quentin.
Legal Challenges and Changes
Beginning in 1967, as a result of various state and United States Supreme Court decisions, there were no executions in California for 25 years.
In February 1972, the California Supreme Court found that the death penalty constituted cruel and unusual punishment under the California state constitution and 107 condemned inmates were resentenced to life with the possibility of parole and removed from California’s death row.
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.
In November 1972, the California electorate amended the state constitution and in 1973, legislation was enacted making the death penalty mandatory in specified criminal cases. 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 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 U.S. Constitution because it did not allow mitigating circumstances to be admitted as evidence. 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 specified 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.
California voters approved Proposition 7 in November 1978, reaffirming the death penalty in California. It 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 California Supreme Court which 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 and can be used to introduce new information or evidence not presented at trial.
Although the death penalty was reinstated in 1978, executions did not resume in California until April 21, 1992, when Robert Alton Harris was put to death in the San Quentin gas chamber.
In January 1993, California law changed to allow condemned inmates to choose either lethal gas or lethal injection as a method of execution.
San Quentin State Prison developed lethal injection protocols based on protocols from other jurisdictions (Operations Procedure or OP 770).
On August 24, 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 the use of cyanide gas was cruel and unusual punishment and barred the state from using that method of execution. The ruling was upheld by the U.S. Ninth Circuit Court of Appeals in February 1996.
That same year, the California 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.
Legal Challenges to the Administration of Lethal Injection
On February 21, 2006, condemned inmate Michael Angelo Morales’ execution was stayed because of his claim that California’s administration of its lethal injection protocol – San Quentin State Prison’s OP 770 – would subject him to an unnecessary risk of excessive pain and violate the Eighth Amendment’s prohibition of cruel and unusual punishment. Morales is on death row for the kidnap, rape and murder of Terri Winchell.
On December 15, 2006, 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 Eighth 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 the California Department of Corrections and Rehabilitation (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.
CDCR assembled a team to conduct its review. In addition to reviewing and revising OP 770 and focusing on the deficiencies identified by the court, CDCR sought to identify other improvements to the lethal injection protocol. The team consulted with experts and visited other jurisdictions.
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 including supervision and oversight. 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, construction of a lethal injection facility began to address the U.S. District Court’s concerns. It was completed in March 2008 at a cost of $853,000.
- Proposed revisions to the lethal injection protocol (OP 770), including modifying the procedures used to administer the lethal injection. A one-drug protocol and a three-drug protocol were both considered. The revised protocol was created to ensure the procedure did not create an undue and unnecessary risk that an inmate would suffer extreme pain.
In November 2007, the Marin County Superior Court held that the Administrative Procedure Act required CDCR to promulgate the protocol (OP 770) 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 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 to take effect with the force of law in 30 days. August 29, 2010, was the permanent effective date of the regulations.
The execution of condemned inmate Albert Greenwood Brown, Jr., convicted in Riverside County of first-degree murder with the special circumstance of murder committed during a rape, was set by Riverside County Court order for September 29, 2010. It was rescheduled to September 30 after the governor issued a temporary reprieve to allow inmate Brown to exhaust all appeals under the law and to allow the California Supreme Court time to review lower court decisions in the various legal challenges surrounding the scheduled execution.
On September 29, 2010, CDCR removed the scheduled execution of inmate Brown from the calendar after the California Supreme Court denied the state’s request to move the execution forward as scheduled. Although the State prevailed in the Court of Appeal, it could not carry out the execution until the California Supreme Court proceedings were final. The California Supreme Court indicated that more time was needed to review legal challenges by the involved parties.
Lethal Injection Regulations Invalidated
On February 21, 2012, The Marin County Superior Court in Mitchell Sims v. CDCR, et al., issued a judgment and held that CDCR failed to comply with the Administrative Procedure Act (APA) when it promulgated its lethal injection regulations. The court issued an injunction prohibiting CDCR from executing anyone until such time as new lethal injection regulations were promulgated in compliance with the APA.
CDCR appealed the ruling and the injunction on April 26, 2012, to the First District Court of Appeal. On May 30, 2013, the appellate court affirmed the trial court’s judgment in the Sims case and held that CDCR’s lethal injection regulations were invalid for substantial failure to comply with the requirements of the APA. The court permanently enjoined CDCR from carrying out the execution of any condemned inmate by lethal injection unless and until new regulations are promulgated in compliance with the APA.
California Voters Retain the Death Penalty
Proposition 34, the Death Penalty Initiative Statute, was a ballot measure to repeal the death penalty as the maximum punishment for people found guilty of murder. On November 6, 2012, 52 percent of California voters voted against it. If the state’s voters had approved it, the initiative would have replaced the death penalty with life imprisonment without the possibility of parole and the 728 people on death row at the time would have had their sentences converted to life without parole.
California’s Death Penalty Ruled Unconstitutional; Ruling Overturned by Federal Appellate Court
On July 16, 2014, the U.S. District Court Central District of California ruled that California’s death penalty violated the Eighth Amendment’s prohibition against cruel and unusual punishment because of delays in the appeals process and vacated the death sentence of condemned inmate Ernest Dewayne Jones, the petitioner in the case. U.S. District Judge Cormac J. Carney wrote, “In California, the execution of a death sentence is so infrequent, and the delays preceding it so extraordinary, that the death penalty is deprived of any deterrent or retributive effect it might once have had. Such an outcome is antithetical to any civilized notion of just punishment.” On November 12, 2015, a three-judge panel of the Ninth Circuit Court of Appeals unanimously reversed the district court’s ruling in Ernest DeWayne Jones v. Ron Davis, Warden. The panel held that that petitioner’s claim sought to apply a novel constitutional rule and wrote, “Under Teague v. Lane, 489 U.S. 288 (1989), federal courts may not consider novel constitutional theories on habeas review.” The panel also said, “A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court.”
Relatives of Murder Victims Seek to End Execution Delays
On April 19, 2012, a Petition for Writ of Mandate was filed with the Third District Court of Appeal in Winchell v. Cate on behalf of Bradley Winchell. It asserted excessive delay in carrying out the judgment of death and asked the court to order CDCR to promulgate a single-drug lethal injection protocol for the execution of inmate Michael Morales, on death row for the kidnap, rape and murder of Terri Winchell. Bradley Winchell is the victim’s brother. In June of that year, the Third District Court of Appeal denied the petition.
On November 7, 2014, Bradley Winchell and Kermit Alexander, whose mother, sister and two nephews were murdered by condemned inmate Tiequon A. Cox, filed a Petition for Writ of Mandate in Sacramento County Superior Court. Winchell and Alexander v. Beard asserted that CDCR had abused its discretion, failed its duty and violated their rights because of unnecessary delays. They asked the court to order CDCR to promulgate lethal injection regulations and provide specific reasons for CDCR’s denial of the original petition.
CDCR filed its response to the petition in December 2014 and stated that Winchell and Alexander lacked legal standing and that the Legislature had given CDCR discretion over how and when to develop lethal injection regulations. The Sacramento County Superior Court denied in a tentative ruling in January 2015 against CDCR’s position. The judge allowed a hearing later that month and affirmed her tentative ruling on February 6, 2015.
On June 2, 2015, the State filed a stipulated settlement agreement in the Winchell and Alexander v. Beard case. The agreement stated that CDCR will promulgate a single-drug lethal injection regulation within 120 days after the U.S. Supreme Court issues its opinion or other disposition in Glossip v. Gross, a case involving Oklahoma’s lethal injection protocol. The Sacramento County Superior Court signed the judgment and the case was settled.
On June 29, 2015, the U.S. Supreme Court ruled in a 5-4 vote that the sedative midazolam may be a part of a lethal injection protocol. The justices heard the Glossip v. Gross case on April 29, 2015. Pursuant to the settlement in the Winchell and Alexander v. Beard case, CDCR agreed to file with the Office of Administrative Law draft regulations of its lethal injection protocol for review pursuant to the Administrative Procedure Act within 120 days.
CDCR submitted on October 27, 2015, its notice of proposed adoption of lethal injection regulations for publication in the OAL’s California Regulatory Notice Register. The OAL published it in its register on November 6, 2015.
California Voters Defeat Proposition 62; Pass Proposition 66
Two competing initiatives appeared on the November 8, 2016, ballot. Proposition 62, the Repeal of the Death Penalty Initiative, would have repealed the death penalty and would have effectively commuted the sentences of condemned inmates from the death penalty with life imprisonment without parole. The measure also had a requirement that condemned inmates work and would have increased the portion of their wages for victim restitution from 20 to 60 percent. A “yes” vote supported repealing the death penalty; a “no” vote opposed the measure. Proposition 62 was defeated with 53.1 percent voting “no” and 46.8 percent voting “yes.”
Proposition 66, the Death Penalty Reform and Savings Act, was also on the November 8, 2016, ballot in California and was approved by the voters. On Dec. 16, 2016, the Secretary of State certified the election results for Proposition 66: 51.1 percent of California voters voted for it and 48.9 percent voted against it.
This initiative keeps the death penalty in place, generally requires habeas corpus petitions to be filed in the court which imposed the sentence, sets time limits on legal challenges, and changes the process for appointing attorneys to represent condemned inmates.
Proposition 66 also added section 3604.1 to the Penal Code, which expressly exempts standards, procedures, or regulations promulgated by the California Department of Corrections and Rehabilitation pursuant to Penal Code 3604 from the Administrative Procedures Act (APA).
The measure also allows physicians to attend an execution to pronounce death and to provide advice to CDCR for the purpose of developing an execution protocol to minimize risk of pain to the inmate. It also allows identified individuals or entities to dispense drugs and supplies to the CDCR Secretary or designee without prescription, for carrying out the provisions of the chapter, and prevents licensing boards from imposing disciplinary action against any licensed health care professional for any action authorized by Penal Code section 3604.
Proposition 66 also allows prison officials to transfer condemned inmates to any state prison that provides the necessary level of security, requires that condemned inmates work as prescribed by the rules and regulations of CDCR, and increases the restitution deduction for condemned inmates to 70 percent, or the balance owing, whichever is less, from a condemned inmate’s wages and trust account deposits, regardless of the source of income.
Although California voters approved Proposition 66, on November 9, 2016, plaintiffs Ron Briggs and John Van De Kamp filed a lawsuit in the Supreme Court of California entitled Briggs et al. v. Brown et al. challenging the constitutionality of Proposition 66.
The California Supreme Court stayed the implementation of Proposition 66 on December 20, 2016, and heard oral arguments in the Briggs v. Brown case on June 6, 2017. The court upheld the initiative in a 5-2 ruling on August 24, 2017. The provisions of Proposition 66 became effective on October 25, 2017.
On January 29, 2018, CDCR gave notice to the Office of Administrative Law (OAL) that it would not be proceeding with the rulemaking action published in the California Notice Register on November 6, 2015, and submitted File and Print lethal injection regulations to OAL pursuant to the exemption to the APA procedures provided by Proposition 66.
There is ongoing state and federal litigation challenging CDCR’s execution protocol. At this time, no executions can take place.
Summary of ongoing litigation:
Michael Morales, et al., v. Gavin Newsom et al., United States District Court, Northern District of California
This case, filed in 2006 by condemned inmate Michael Morales, challenged the constitutionality of CDCR’s three-drug lethal injection protocol. Motions to intervene have since been filed and granted as to an additional 21 condemned inmates. The Court has issued stays of execution for all plaintiffs. The court’s recent order includes language staying “preparations for any execution.” The plaintiffs filed a Fifth Amended Complaint on February 27, 2019, which challenges CDCR’s one-drug File and Print regulations.
In actions related to the Morales case:
- District attorneys for San Bernardino, San Mateo and Riverside counties filed motions to intervene in Moralesand to lift the stays of execution, which were denied. The DAs have appealed to the Ninth Circuit.
- On January 22, 2019, family members of murder victims filed a Petition for Writs of Mandamus or Prohibition with the Ninth Circuit, in Alexander v. U.S. District Court (N.D. Cal.), Michael Morales, et. al. Real Parties in Interest-Plaintiffs, Ralph Diaz, et al., Real Parties in Interest-Defendants. The petition requests the Court find that all stays of execution and bars on preparations for executions in the Morales case are no longer in effect, or must be lifted.
- On February 19, 2019, the same family members filed a motion with the Court, in Cooper v. Newsom, asking for a partial stay to the extent that they enjoin only preparatory activities needed for CDCR to comply with Penal Code 3604(e), which was denied on March 7, 2019.
Los Angeles Times Communications LLC, et al., v. Ralph Diaz, et al., United States District Court, Northern District of California
Plaintiffs Los Angeles Times, KQED, and the San Francisco Progressive Media Center allege a First Amendment right of access to view the preparation of the lethal injection chemical, the administration of the lethal injection chemical, and provision of medical care to a condemned inmate after an execution is stopped.
Jay Jarvis Masters et al. v. Ralph Diaz et al., Marin County Superior Court
This lawsuit was filed by the ACLU on behalf of plaintiff Masters, a condemned inmate, and plaintiff Witness to Innocence, a national nonprofit. The complaint alleges that portions of CDCR’s File and Print regulations exceed the scope of the exemption to the Administrative Procedure Act provided for in Penal Code Section 3604.1.
Sims, ACLU et al. v. Scott Kernan et al., Alameda County Superior Court
Petitioners claim that the California Legislature improperly delegated broad authority to CDCR to develop standards for executions under Penal Code section 3604. Petitioners claim the delegation is a violation of the separation of powers. The Superior Court sustained CDCR’s Demurrer to the Complaint without leave to amend. The Court of Appeal affirmed the trial court’s order. It also stated that several Penal Code sections, including 3604, provide adequate direction to CDCR in developing these standards. On January 23, 2019, Petitioners appealed this decision to the Supreme Court of California.
Governor Gavin Newsom Issues Executive Order to Halt to the Death Penalty in California
On March 13, 2019, California Governor Gavin Newsom signed an executive order instituting a moratorium on the death penalty in California in the form of a reprieve for all people sentenced to death. The executive order also calls for repealing California’s lethal injection protocol and the immediate closing of the execution chamber at San Quentin State Prison. The order does not provide for the release of any individual from prison or otherwise alter any current conviction or sentence.