Ms. Margo Schulter
                                     5901 Newman Ct. #35
                                     Sacramento, CA 95819-2618
                                     Telephone: 916/457-8935
                                     e-mail: mschulter@calweb.com


          -----------------------------------------------
                   California Without Executions:
                   The Right Choice for Our Future
          -----------------------------------------------

The California Commission on the Fair Administration of Justice
(CCFAJ), in its report on the operation of the death penalty in our
state, raises rather than resolves vital questions for the Legislature
and people to address through informed dialogue and debate.

While the Commission had the limited task of examining the
administration of the death penalty in California rather than its
ultimate wisdom or morality, its members have set an admirable example
in focusing our attention on the concrete realities and consequences
of our public policy decisions. It is from this perspective that we
may best do what the Commission invites and indeed challenges us to do
as human beings and as engaged citizens: to weigh the ultimate moral
issues in context, and thus arrive at a criminal justice system which
is at once fairer and more effective in promoting the security and
humanity of all whom it touches.

As the Commission's report also reminds us, we are all involved in the
administration of California's criminal justice system, whether it
operates with or without a death penalty, and whatever our views may
be on the issue of capital punishment. It is my purpose to seek out a
common ground which may draw legislators, law enforcement authorities,
and the general public in social solidarity to address the menace and
tragedy of criminal violence while upholding the imperatives of human
rights for victims and offenders alike in a responsible and fiscally
sustainable manner.

This present report grows out of my original intention to draft a
written statement for submission to the Commission, having been
helpfully directed by its most able and friendly Executive Assistant
Chris Boscia to a set of "Focus Questions" which persons or
organizations making such submissions were encouraged to address.
Although it soon became clear to me that the lengthy process of
writing would take me beyond the timeframe of the Commission, and also
beyond the scope of its mandated inquiry, I nevertheless hope that
this document may offer some recompense for the wise and courteous
responses that Mr. Boscia extended to my letters of inquiry. It goes
without saying, of course, that while he has played a catalytic role
in contributing some of the framework for whatever virtues this
document may have, the views here expressed are solely my own, and
likewise the responsibility for any errors, flaws, or misjudgments.


           *                      *                     *


Taking the Commission's "Focus Questions" on the administration of the
death penalty in California as an excellent starting point, I will
concentrate especially on the three themes of special circumstances,
comparative proportionality review, and executive clemency, viewing
these themes from a perspective that may place them in a new light. 

From this perspective, interestingly, special circumstances were
introduced into California's law of murder in 1973 for the wrong
reason; but in the legislation of 1977 (SB 155) and voter initiative
of 1978 (Proposition 7), took on an additional mission which remains a
valid and vital one as we strive to shape a criminal justice system
fit for the 21st century. When used for this appropriate purpose, the
current special circumstances may need no major changes in their scope
or breadth, although a bit of tweaking and refining by the Legislature
and voters might not hurt, a process in which our prosecutors can lend
a helpful hand based on their experience so far.

Unlike special circumstances for first degree murder, which have
become an integral part of California law and are rightfully here to
stay, the question of comparative and informed proportionality review
of death sentences by the California Supreme Court may best be
approached as a worthy "thought-experiment," as Albert Einstein might
call it, or "what-if" exercise. We'll do that thought-experiment, and
see that a good proportionality review system leads sooner or later to
a logical conclusion. Rather than attempting this experiment in real
life and incurring its immense human and administrative costs, we can
instead chart a plan to reach the same goal more directly and
gracefully.

The question of executive clemency for Death Row prisoners, when
closely examined, points us in this same direction. Our last three
governors, most regrettably, have operated in an institutional culture
that seems essentially to dismiss or discount the unique mitigating
factors presented by each person facing execution, and most especially
mental illness or emotional disturbance short of legal insanity, with
the cases of Manuel Pina Babbitt and Donald Jay Beardslee as tragic
illustrations. Suppose we return to an earlier tradition of clemency
on which our revered Governor Edmund G. "Pat" Brown has literally
written the book[1], giving these factors particular weight and
carefully examining geographic disparities in sentencing.[2] As with
proportionality review in our Supreme Court, we find that the more
informed and discerning the system becomes, the more and more closely
we approach a logical conclusion or destination. Again, we can arrive
at this same policy destination without subjecting the people most
intimately involved and our state as a whole to the drama and trauma
of more clemency decisions in the face of impending executions.

The logical conclusion or destination of which I speak is an official
moratorium on executions in California leading to abolition of the
death penalty by the Legislature and voters, leaving in place a
sentence of life imprisonment without possibility of parole (LWOP) as
the mandatory penalty for all crimes now subject to a possible
punishment of death.

While the Commission's focus questions don't expressly raise the
issues of a moratorium and abolition, I can consider them a welcome
invitation to look at these issues from a systemic point of view.
After presenting an overview of the policy recommendations here
proposed, I'll focus as promised on the main themes of special
circumstances and the knotty problem of felony murder with its many
shades of culpability; comparative proportionality review of death
sentences; and executive clemency in capital cases. Thinking
systemically means, for example, exploring how a California criminal
justice system with LWOP as the maximum punishment might approach the
felony-murder special circumstance. 

As we proceed, I'll try to keep two very important things in mind. The
first is that death penalty law is much too important to be left to
the specialists, whether attorneys, or lay advocates like myself who
sometimes get into the act. This means a responsibility on the part of
those of us who are specialists to explain the law, and the values
which have shaped it, in terms we can all understand and discuss
together.

Yet more importantly, those of us who favor a death penalty moratorium
leading to abolition have an obligation to focus on how Californians
who differ on this issue yet might join in shaping a criminal justice
system without executions that a healthy majority of voters will
embrace as overall a better road to the future, even if many of them
continue to regard execution as a just fate for certain criminals.
What follows is intended as one step in that direction.


----------------------------------------------------------------------
1. Overview of recommendations: The better part of discretion is valor
----------------------------------------------------------------------

         "The better part of Valour, is Discretion"
                               -- Falstaff
                                  Shakespeare, _King Henry IV, Part I_
                                  Act V, Scene 3

Reading Shakespeare's familiar words, we may wonder how the Bard would
view the high drama enacted four centuries later in the courtrooms of
California centering on the most awesome from of discretion exercised
in our criminal justice system: the choice by a trial jury or judge of
life imprisonment without possibility of parole (LWOP) or death for a
defendant convicted of a capital crime. Such a decision demands not
only "discretion" in Falstaff's sense of prudence or caution, but the
highest moral valor. As Justice Harry F. Blackmun wrote in what might
be called the early middle portion of his long and distinguished
judicial odyssey, doubtless speaking for trial jurors and judges as
well as state and federal judges who must review death sentences on
appeal: "Cases such as these provide for me an excruciating agony of
the spirit." _Furman v. Georgia_ (1972) 408 U.S. 238, 405 (dissenting
opinion).

Today this agony afflicts not only the immediate decisionmakers in
capital cases, but California's criminal justice system at large,
draining it of the human and fiscal resources needed to fight crime
more effectively, clear unsolved homicide cases, and provide more
adequate supports to victims of crime and their families. Over the
past 40 years starting with 1968, only 13 executions have taken place
in our state, in contrast to the 669 prisoners now on Death Row. The
title of Burton H. Wolfe's book _Pileup on Death Row_ (1973)[3] indeed
describes a state of affairs which has prevailed through these last
four decades, except for brief respites following landmark decisions
in 1972 and 1976 overturning California's death penalty statutes under
state or federal constitutional law. In 1973, and again in 1977-1978,
new capital statutes were enacted, and the "pileup" resumed apace.[4]

To end this agony, and resolve a pileup on Death Row that has become a
judicial logjam interfering with the ability of our state Supreme
Court to address other criminal and civil cases, Californians of
differing views on the death penalty can and should unite in a
recognition that the drama of capital sentencing has largely played
out. Rather than maintaining what David McCord[5] has termed an
"anemic" death penalty system in which relatively few prisoners are
executed while many languish on Death Row for decades, we can join in
supporting a robust system of swift, certain, and consistent
punishment for first degree murder with special circumstances and
other crimes now subject to a possible sentence of death.[6]

Reversing Shakespeare's adage, we should muster the political will to
recognize that sometimes "the better part of discretion is valor."
The relevant act of legislative and electoral valor -- for in
California, it requires the approval of the voters -- is to exercise
the highest prudence or discretion by fixing the punishment for all
currently capital crimes at life imprisonment without possibility of
parole (LWOP). This punishment is a promise which the law can keep,
and indeed has kept in California over the three decades since LWOP
became a standard part of our homicide law in 1977. Society can thus
decisively denounce the worst crimes by declaring their perpetrators
unfit ever again to live within its free precincts, while giving more
of its attention to the needs of crime victims and their families.

One of the problems of the capital sentencing drama is precisely that
it puts the offender at center stage, a place in the limelight often
resumed during the long process of direct and collateral appellate
review, and finally, if this point is reached, the Governor's clemency
decision. Deciding which persons guilty of capital crimes are worthy
of execution -- "the worst of the worst" -- focuses attention on the
mitigating human frailties and redeeming qualities of each offender.
The family and friends of murder victims may rightly feel upstaged, or
even relegated to a media sideshow in the most negative sense as the
public's attention is rivetted on the fate of the condemned prisoner.

In contrast, the valorous discretion of LWOP sets things in a more
balanced proportion. Rather than being litigated repeatedly in our
state and federal courts, the extenuating human qualities of the
defendant are taken as a given, and assessed more closely by the
Department of Corrections and Rehabilitation in order to maximize the
offender's opportunity for human development and restitution in a
lifelong custodial setting. There is no life-or-death decision to
distract attention from murder victims and their families, from the
tragic loss of life which has already taken place at criminal
hands. While no earthly tribunal can offer "closure" to the families
of homicide victims, the system can at least offer the "legal closure"
of a defendant placed safely and permanently behind prison walls.

Very importantly from a practical administrative standpoint, a
sentence of LWOP can be served while it is being appealed, with such
appeals processed, as now, by our District Courts of Appeal. The
California Supreme Court would remain free, of course, to review LWOP
cases or other criminal cases which it finds of timely interest. This
would unencumber our Supreme Court while putting an end to a
phenomenon highly destructive of public trust in the justice system:
"the illusion of impunity," in which prisoners living on Death Row for
long years or decades appear from a certain point of view to be
"getting away with their crimes." A uniform penalty of LWOP for the
most serious offenses will communicate a clear message of swift and
reliable moral accountability for these offenses, with appellate
review then taking place, if sought, in a calm, dignified, and duly
expeditious manner.

Fortunately, we can implement such a policy, for the most part, simply
by removing the death penalty from California law while otherwise
retaining our current statutory scheme regarding criminal homicide. 
Thus the Legislature in 1977 (SB 155) established a mandatory minimum
penalty of LWOP for first degree murder with special circumstances and
all other potentially capital crimes. In 1978, the voters in their
rewriting and revision of this statute (Proposition 7, the Murder
Penalty Initiative or "Briggs Initiative") expanded the list of
special circumstances. Additionally, Proposition 7 increased the
punishment for first degree murder without special circumstances to a
prison term of 25 years to life; and for second degree murder, to a
term of 15 years to life.

To implement the policy here advocated, the following steps are
recommended:


        (1) The California Legislature should enact a moratorium on
            execution to remain in effect for a term of at least five
            years, a period during which there would be a public
            process at statewide and local levels to bring together
            stakeholders including law enforcement officers and
            citizens at large to shape a fairer and more effective
            criminal justice system worthy of the 21st century.

        (2) At the conclusion of this moratorium period, there will be
            a voter referendum or initiative to abolish the death
            penalty for all crimes in California, leaving in place a
            mandatory sentence of LWOP for first degree murder with
            special circumstances and all other offenses now capital
            (e.g. treason, trainwrecking, malicious assault by a life
            term prisoner).

        (3) When used in the new statutory scheme without the death
            penalty to define those categories of first degree murder
            subject to mandatory LWOP, the current and rather broad
            set of special circumstances may call for little change.
            However, one suggestion is presented and explored in
            Section 3 below:

            (a) The felony-murder special circumstance[7] might be
                revised so as to apply to actual killers and other
                major participants in a specified felony resulting in a
                death who act with intent to kill; intent to inflict
                great bodily injury; or a conscious and wanton
                disregard for human life of the kind shown by
                intentionally shooting into a crowded room or driving a
                vehicle at high speed on an urban sidewalk, knowing
                that these acts are extremely likely to cause death.

        (4) Abolishing the death penalty in California would render
            the crime defined in Penal Code Section 128 "impotent and
            obsolete," to borrow a phrase from our former Governor and
            President Ronald Reagan: that is, perjury resulting in
            "the conviction and execution of any innocent person."
            This provision might therefore be retired from the code.

        (5) While three decades of experience in California have shown
            that executive clemency for prisoners serving LWOP is an
            extraordinarily rare event except in cases of exoneration,
            the public may wish to reassure itself on this point. Thus
            Article V, Section 8 (a) of the California Constitution
            might be amended to provide that the Governor may not
            grant a "pardon or commutation" to a person under sentence
            of LWOP -- as likewise now holds for a person "twice
            convicted of a felony" -- except "on recommendation of the
            Supreme Court, 4 justices concurring."

From a social perspective, these steps offer the basis for a
constructive truce between death penalty proponents and opponents in
our state. While a substantial majority of Californians have been
ready to voice support for the death penalty as a general principle,
and indeed to vote accordingly, this majority seems substantially to
diminish when LWOP is offered as a specific alterative. At the same
time, a substantial minority of Californians are strongly opposed to
capital punishment, and regard this practice as a fundamental
violation of human rights. The swift, consistent, and economic use
of LWOP as a sanction for our most serious crimes such as aggravated
murder may provide a common ground which can unite rather than divide
us in the task of societal self-defense and generous support for our
law enforcement officers who serve us all.

From the perspective of federalism, a California criminal justice
system with LWOP as the maximum penalty will minimize the scope of
intervention by the federal courts in the administration of our
homicide laws. Unlike capital punishment, LWOP can be constitutionally 
applied across the board to offenses such as murder with special
circumstances: without the need for a separate penalty trial, and
without the extra legal and psychological baggage of the irrevocable
act of execution. The result is a more rational, streamlined, and
efficient system for bringing our most serious offenders legally to
book.

The moral debate as to whether capital punishment is right or wrong
will doubtless continue. However, if Californians can reach a
consensus that LWOP as a robust and expeditiously applied punishment
can serve many of the same penological purposes as the death penalty
while avoiding its socially divisive and fiscally intensive qualities,
we have a basis for uniting in the struggle against violent crime even
while retaining and mutually respecting our philosophical differences. 

We now turn first to a closer look at the role of special circumstances
in a system with LWOP as the maximum punishment; then considering how
the comparative proportionality review of death sentences and the
careful weighing of mitigating factors as an integral part of
Governor's process of deciding clemency for Death Row prisoners are
vital safeguards pointing toward the logical conclusion of such a
system.


----------------------------------------------------------
2. Special circumstances: a familiar tool in a new context
---------------------------------------------------------- 

         "Whatever be the punishment inflicted on the higher
          degrees of murder, it ought to be widely different
          from that of every other crime. If not different in
          its nature, at least let there be some circumstance
          in it calculated to strike the imagination -- to 
          impress a respect for life -- and to remove the
          temptation which the villain otherwise has, to
          prevent the discovery of a less crime, by the
          commission of a greater."

          -- Justice William Bradford, Supreme Court of Pennsylvania
            _An Enquiry, how far the Punishment of Death is
             Necessary in Pensylvania_ (1793)[9]

When our state arrived at a crossroads of criminal justice policy on 18
February 1972 with the decision of the California Supreme Court in
_People v. Anderson_ (1972) 6 Cal.3d 628 that the death penalty
constitutes "cruel or unusual punishment," the advice offered by
Justice William Bradford of the Supreme Court of Pennsylvania in 1793
might have shown the way to a constructive resolution of the situation
consistent with the Court's landmark decision. Quite likely that
legislative response to _Anderson_ would have involved the invention of
special circumstances, or something very much like them. Some 35 years
later, having learned through experience the costs and consequences of
having proceeded otherwise, we are now in a position to consider and
adopt "the road not taken" in 1972-1973. This means retaining the
special circumstances to first degree which have in fact become an
integral part of California homicide law, and using them exclusively
for the right purpose: to define those killings subject to a mandatory
and uniform punishment of life imprisonment without possibility of
parole (LWOP).

Before looking at the history and use of special circumstances in
California, we should briefly become acquainted with William Bradford,
who served as Attorney General of Pennsylvania during a great epoch of
criminal law reform (1780-1791), then became a Justice of the state
Supreme Court (1791-1794), and concluded his career by serving until
his death as Attorney General of the United States (1794-1795).
Writing a report to the Pennsylvania Legislature in 1793 on the
administration of the death penalty at the request of Governor Thomas
Mifflin, Bradford may have been one of the first jurists of the new
Nation to suggest that this penalty, even for murder, likely violated
the constitutional provisions of Pennsylvania and many sister States
against excessively "sanguinary" or "cruel" punishments. If a modern
prison system like that then taking root in Pennsylvania sufficed to
restrain convicted criminals and deter others, then "to take away life,
in such a case, seems to be an unauthorized act of power."[10]

However, it is another innovative aspect of that report, _An Enquiry,
how far the Punishment of Death is Necessary in Pennsylvania_, which is
probably more familiar: the concept of dividing the crime of murder
into degrees. Bradford's purpose was to distinguish between the crime
of "deliberate assassination" and all other forms of homicide as well
as lesser offenses.[11] In the first step of his plan for reform,
capital punishment would be restricted to fully "willful and
premeditated" murder, with immediate abolition for all other crimes.
Then, after some years of experience had demonstrated the success of
the new penal system, abolition for these most serious murders could
follow: "the legislature of Pennsylvania, putting the key-stone to the
arch, may triumph in the completion of their benevolent work."[12] 
In a society without executions, as Bradford observes in the quotation
at the opening of this section, the "higher degrees of murder" should
remain subject to a punishment which sets them apart from all other
crimes, in order both to instill a respect for human life, and to
dissuade robbers and other felons from killing their victims in order
to "prevent the discovery" of their offenses.[13]

As it happened, Bradford's degrees of murder were quickly adopted in
Pennsylvania (1794), and became a mainstay of homicide law in many
sister States. His suggestion that the death penalty might constitute
unconstitutionally "cruel" punishment, however, did not gain widespread
notice in our state and federal courts until the era of the 1960's.[14]

By considering the development of special circumstances as a new
element of California homicide law in the wake of the _Anderson_
decision, we can tie together these two threads of Bradford's thought,
and in this intertwining shape a criminal justice system better meeting
the needs of the early 21st century and realizing the practical vision
of this most worthy law enforcement official and jurist.

Writing for the Court in _Anderson_, Chief Justice Donald R. Wright
interestingly adopted as one basis for the decision a line of reasoning
much like that presented by Bradford 179 years earlier. At California's
Constitutional Convention of 1849, an attorney delegate from the
Sacramento District named L. W. Hastings proposed a resolution that
"death shall never be inflicted as a punishment for crime in this
state." However, it was objected that "as California is situated at
present, it is impractical. The construction of penitentiaries would be
enormously burdensome..." _Anderson_, 6 Cal.3d 628, 642 n. 22. In the
California of 1972, however, with its extensive prison system where the
most serious offenders could if required be confined for life, the
death penalty was not "necessary" to achieve the state's purposes of
punishment, and therefore was unconstitutionally "cruel," _id._, 
6 Cal.3d 628, 651-653. This, of course, was precisely Bradford's point
in 1793.[15]

By overturning the death penalty as a "cruel or unusual punishment"
under the state Constitution, however, the _Anderson_ decision left
more clearly exposed what many proponents and opponents of capital
punishment might consider a major flaw in the law of murder. Under
that law, the jury or trial judge which had convicted a defendant of
first degree murder had a choice of two punishments in the penalty
phase which followed: either death, or life imprisonment with parole
eligibility after 7 years.[16] With the death penalty now excluded,
the maximum punishment on the books for first degree murder was a life
sentence with possible release in as little as 7 years, even for the
most heinous slayings of a kind all too prominently featured in the
headline news of the times.

Bradford, as we have seen, urged that crimes involving "deliberate
assassination" should continue after the total abolition of the death
to be punished in a way which would set them apart from all others. His
words apply with special force to the tragic assassination of Senator
Robert F. Kennedy in Los Angeles on 5 June 1968, immediately after his
victory in California's presidential primary, by Sirhan Sirhan; and
likewise to the murderous rampages masterminded by Charles Manson and
his "family" of followers. Originally sentenced to death, these and
other perpetrators of the most egregious murders were resentenced to
life imprisonment with parole eligibility in 7 years, hardly a result
exemplifying Bradford's wise policy.[17]

Also, a life sentence with a minimum term of 7 years might not appear,
either in 1972 or today, a dramatically greater penalty than that
applying to many serious felonies not involving the taking of life.
Bradford, who had had much experience with crime during his long term
as Attorney General of Pennsylvania, and had also surveyed the laws of
other nations, was especially concerned that if robbery and murder
carried comparable punishments, robbers might become accustomed to kill
their victims in order to reduce the risk of "discovery."[18]

While Bradford did not specify precisely how these most serious murders
should be punished after the death penalty was totally abolished, he
hinted that their punishment might have the same basic "nature" as that
of other grave crimes, thus suggesting some form of imprisonment, but
with some distinctive element to "strike the imagination." Perpetual
imprisonment without any substantial chance of pardon -- or, we might
add today, the later option of parole -- would seem admirably to meet
this requirement.

It is important to emphasize that while the _Anderson_ Court had
faithfully and ably discharged its responsibility to review the death
penalty, the Court had no power to revise or reform the valid
provisions of homicide law that remained. It did note that prisoners
then under sentence of death might have their sentences reduced to
either "life imprisonment" or "life imprisonment without possibility or
parole" depending on the offenses for which they had been convicted,
_Anderson_, 6 Cal.3d 628, 657 n. 45. However, LWOP was then available
in California for only a few crimes, with aggravated kidnapping (Penal
Code Section 209) the most familiar.

Thus the Court's decision provided a precious opportunity for the
Legislature and voters of California to fashion a new system of
homicide law without the death penalty which would at once express
society's denunciation of the worst murders, and strive to maximize the
deterrence of intentional killings in the course of robbery or other
dangerous felonies by making the punishment for such felony murders
dramatically greater than for the felony itself.

While the simplest approach would have been simply to make the then
rather rare sentence of LWOP applicable to all first degree murders,
almost two centuries of experience since Bradford's report of 1793 and
Pennsylvania's statute in 1794 had shown that the category of "willful,
premeditated, and deliberate killing" still spread a rather wide net. 
This net could include a murder and attempted suicide by a defendant
"desperately in love," _People v. (Agustin) Ramos_ (1935) 3 Cal.2d
269; or "killings arising out of domestic difficulties" which might
meet the language of the statute but seemed more like emotional
outbursts than rationally calculated acts, _People v. Brust_ (1957), 
47 Cal.2d 776.

Thus, in the wake of _Anderson_, the Legislature and electorate might
have engaged in a calm and reasoned dialogue leading to something very
much like our system of special circumstances: narrower categories of
first degree murder where the maximum punishment of LWOP may serve
either to communicate to offenders and others the utmost reprobation of
a civilized society (e.g. murder by torture), or to deter killings
where rational calculation may have more of an influence (intentional
felony murder); or for both purposes (murder for hire).

Additionally, while leaving open eventual parole possibilities for
other first degree murders, California's lawmakers and voters might
have decided to increase the minimum prison term for these killings
also, as actually happened in 1978 (Proposition 7).

Unfortunately, what actually transpired in the wake of _Anderson_ was
not a reasoned and reflective process, but rather a prompt political
campaign to amend the California Constitution so as to overturn the
Court's decision and reinstate existing death penalty laws. Criminals
such as Sirhan and Manson were quickly conscripted as "poster children"
in this campaign for what became Proposition 17, enacted in November of
1972 by 67.5% of those voting.

Tragically, the opportunity was missed in 1972 to consider mandatory
LWOP as a consistent punishment for the most aggravated categories of
murder, however defined, a choice at once honoring the powerful
insights of _Anderson_ and answering to the concerns of death penalty
proponents that the perpetrators of such crimes should be permanently
removed from free society. Today, the citizens of California can
resolve that this opportunity not be missed again.

Proposition 17 added to the California Constitution a new provision
(Article I, Section 27) which declared that the death penalty should
not be deemed to violate the Cruel or Unusual Punishments Clause (now
Article I, Section 17), nor any other section of the Constitution. It
further purported to reinstate as valid the death penalty statutes in
effect at the time of _Anderson_.

However, by the time this measure was passed, another landmark
constitutional decision had intervened: _Furman v. Georgia_ (1972) 408
U.S. 238, in which five members of the United States Supreme Court had
struck down virtually all state and federal death penalty laws. In
this 5-4 decision, each concurring or dissenting justice had written a
separate opinion, leaving open the question of whether and how
lawmakers might draft new statutes that could pass constitutional
muster under the Cruel and Unusual Punishments Clause of the federal
Eighth Amendment.

Justices Marshall and Brennan, much like their counterparts
interpreting the California Constitution in _Anderson_, found that the
death penalty itself constituted a "cruel and unusual punishment" under
the United States Constitution[19].

Legislators seeking to devise new capital punishment schemes, however,
focused their attention on the other three justices voting to strike
down existing laws: Justices Douglas, Stewart, and White. These
justices left open the question of whether the death penalty might
inherently violate the Eighth Amendment, and premised their decisions
on the problems of inviting juries or judges to apply this penalty to
rather broad categories of crime (e.g., as in California, any first
degree murder) for which in practice most offenders received some
variety of life imprisonment. Justice Douglas emphasized the theme of
opportunities for "discrimination" by race or economic class, for
example.[20] Justice Stewart focused on the sheer random or "arbitrary"
nature of the punishment when one prisoner received death and other
walked the prison yard for substantially similar crimes -- much like
being "struck by lightning."[21] Justice White highlighted the theme of
"infrequency," reasoning that if the death penalty were so rarely
imposed, it could hardly contribute much to the penological purposes
such as deterrence which it was intended to serve.[22]

For policymakers in many States including California, Justice Stewart
seemed to drop a hint when he contrasted the rather broad scope of the
statutes being overturned with laws defining a narrower crime such as
the assassination of the President or Vice-President of the United
States, and imposing a mandatory death penalty.[23] 

Justice Blackmun, one of the four dissenters along with Justices
Burger, Powell, and Rehnquist, cautioned that Justice Stewart's
language might well lead legislatures to enact mandatory death penalty
statutes for "specified crimes," without any option for the jury or
judge to choose an alternative punishment such as some form of life
imprisonment. "This approach, it seems to me, encourages legislation
that is regressive and of an antique mold, for it eliminates the
element of mercy in the imposition of punishment."[24]

The legal history of California nicely illustrated Justice Blackmun's
points: since 1874, the jury or judge trying a first degree murder case
had been entrusted with the discretion to choose a penalty of death or
life imprisonment. In the wake of Proposition 17, however, which
signalled the strong preference of the electorate for a valid death
penalty, the Legislature evidently sought out to write whatever type of
statute seemed likeliest to pass federal constitutional muster after
the seismic upheaval of _Furman_.

In 1973, the Legislature accordingly enacted SB 450, and in the process
invented that now familiar fixture of California homicide law: special
circumstances. The crime of first degree murder would carry a mandatory
penalty of death if one or more of eight "special circumstances" listed
in the new statute (Penal Code Section 190.2) were charged and then
found to be true beyond a reasonable doubt. These circumstances defined
rather narrow categories such as murder by agreement for a "valuable
consideration"; the intentional killing of a peace officer; and a
"willful, deliberate, and premeditated" killing in the course of
certain serious felonies, or to prevent the testimony of a witness in a
criminal proceeding. First degree murder without special circumstances
would be punished, as it had been since _Anderson_ and _Furman_, by
life imprisonment with parole eligibility after 7 years.[25]

One wonders how the history of California might have unfolded if the
public dialogue and legislative process following _Anderson_  had taken
a different turn, producing a statute much like SB 450 with its special
circumstances, but with one critical difference: a mandatory penalty
for special circumstances offenses of LWOP rather than death. This
untried solution would have respected not only the humane spirit of
_Anderson_, but also the evident concerns of the three "swing justices"
(Douglas, Stewart, and White) in _Furman_. The special circumstances
would provide clear and reasonable standards for sorting out
California's most serious homicides from the others; and LWOP was a
penalty very widely acceptable to juries and judges, so that it would
be imposed with a high degree of frequency and consistency for these
offenses, thus serving in practice as well as theory its intended
penological purposes.

On 2 July 1976, the next chapter of the special circumstances saga
unfolded when the United States Supreme Court announced its decision in
_Gregg v. Georgia_ (1976) 428 U.S. 153 and four companion cases
reviewing the constitutionality of the death penalty in itself and the
validity of a range of new state capital statutes passed in the
aftermath of _Furman_. By 7-2, the Court found capital punishment not
to be in itself a "cruel and unusual punishment," with Justices Brennan
and Marshall dissenting and reaffirming their conclusion in _Furman_
that the death penalty invariably violates the Eighth Amendment, a
dissent they would adamantly repeat during the remander of their terms
on the Court in every case upholding or declining to review a sentence
of death.

While these two justices showed the courage of dogged persistence, some
of their brethren evinced a different kind of moral and intellectual
courage: the courage to reexamine their first impressions as voiced in
_Furman_, or to vote in favor of upholding statutory schemes which they
found constitutionally permissible although quite likely personally
repugnant. This time, the three justices defining what seemed to be the
controlling principles of the law would be Justices Stewart and Powell,
and a new Member of the Court: Justice John Paul Stevens.

Although legislators in California and many other States had supposed
that mandatory death penalties were the constitutionally ordained wave
of the future if capital punishment were to be retained at all, these
three justices struck down such statutes in _Woodson v. North
Carolina_ (1976) 428 U.S. 280; and _Roberts v. Louisiana_ (1976) 428
U.S. 325.  The _Roberts_ decision was especially relevant to
California's 1973 statute, because the Louisiana statute likewise made
death mandatory for a set of narrowly defined categories of murder,
much like our special circumstances.

As the three pivotal justices explained, these statutes were cruel and
unusual because they precluded a consideration of "compassionate or
mitigating factors stemming from the diverse frailties of humankind."
Rather, they inevitably treated defendants convicted of the specified
offenses "not as uniquely individual human beings, but as members of a
faceless, undifferentiated mass to be subjected to the blind infliction
of the penalty of death," _Woodson_, 428 U.S. at 304.

In the view of these three justices, States such as Louisiana and
California had in fact done the constitutionally correct thing in
narrowing eligibility for the death penalty to a few carefully defined
categories of murder. This being done, however, an additional
ingredient was required for consitutionality. Even for defendants who
fell within this narrow net of "death-eligibility," as it would come to
be called, there must be a process of informed and individualized
discretion in which the jurors or judge focus on mitigating as well as
aggravating factors relating to the circumstances of the crime and the
character and record of the offender, and on this basis decide between
the death penalty and some alternative penalty (typically, as before
_Furman_, some variety of life imprisonment).

The lead case of _Gregg v. Georgia_ illustrated one type of valid
system, with a set of "aggravating circumstances" which made a murder
death-eligible, and a separate penalty trial after a defendant's murder
conviction in which the jury or trial judge would determine whether one
or more of these circumstances (comparable to California's special
circumstances) was present, and, if so, take into account any
mitigating circumstances that might militate against capital punishment
before reaching a verdict of life imprisonment or death.

The companion cases of _Proffitt v. Florida_ (1976) 428 U.S. 242, and
_Jurek v. Texas_ (1976) 428 U.S. 262, presented somewhat different
statutory arrangements which appeared to include the same cardinal
features required under the Court's new test for constitutionality. 
Death-eligibility was restricted to a few relatively narrow categories
of murder, with a separate penalty trial to weigh aggravating and
mitigating factors so that the jury or judge reached an informed and
individualized decision on the question of life or death.

The _Gregg_ Court having spoken, our California Supreme Court had the
straightforward task of applying these federal decisions to our 1973
statute. As was now clear, the Legislature had made an educated but
ultimately mistaken guess as to what the Eighth Amendment might require
after _Furman_, making death mandatory for special circumstances crimes
rather than providing a penalty trial for defendants convicted of these
especially serious murders, with an informed and individualized choice
between life and death. Thus, if legislators wished to have a valid
death penalty, they would need to go "back to the drawing board" and
draft a new statute accordingly.

Announcing this rather obvious result in _Rockwell v. Superior Court_
(1976) 18 Cal.3d 420, the California Court thus left the next move to
the Legislature. In fact, while some lawmakers may have been frustrated
at the prospect of once again revising the state's capital statutes --
unless they wished to join Governor Edmund G. Brown, Jr. ("Jerry"
Brown) in opting for a California without the death penalty -- the
requirements of the new _Gregg_ line of cases were in line with state
tradition.

During the period 1957-1972, California law called for a separate
penalty trial for defendants convicted of first degree murder and a few
other crimes carrying a discretionary penalty of either death or some
form of life imprisonment. This penalty trial, instituted by the
Legislature in 1957 (Chapter 1968 of that year), served for the most
part precisely the purposes now constitutionally mandated after
_Gregg_. The jury or judge could hear evidence on the character and
record of the offender often not admissible in the trial of guilt, and
could carefully ponder matters of "aggravation" and "mitigation," with
a focus directed squarely upon the fateful life-or-death decision.

Thus keeping the special circumstances more or less as defined in 1973,
but providing a traditional California penalty trial for those coming
within this circumscribed net, looked like a formula for success in
fashioning a valid statute. As to the penalty trial, there was one more
point for fine tweaking. Before 1972, while a penalty jury or judge was
clearly intended diligently to weigh and consider the aggravating and
mitigating circumstances which might emerge in the course of the
proceedings, there was no legal requirement that the verdict be based
on these factors. At least in theory, jurors might simply decide that
the outrageous nature of the crime merited death without weighing any
mitigating factors such as mental illness. Or, reacting to a recent
series of well-publicized crimes in their community or county
unconnected to the case at hand, they might decide that "an example had
to be set," regardless of the particulars of the crime and the offender
at the bar. The remedy was simple: directing that in California's new
version of the familiar penalty trial, the jury or judge not only hear,
but take into account and be guided by, the aggravating and mitigating
factors as presented in each unique case.

The legislative process in early 1977 in fact produced a bill very much
along these lines: SB 155 by Senator George Deukmejian, who was later
to become Governor. The special circumstances were defined much as in
1973, with considerable restraint and caution: the defendant in a
felony-murder case, for example, needed to be "personally present" and
to participate in a "willful, deliberate, and premeditated" killing.
At the conclusion of the guilt phase of a first degree murder trial
where one or more special circumstances had been charged, the jury or
judge would, if it found the defendant guilty, all decide whether one
or more the alleged "specials," as they would be called, had been
proven true beyond a reasonable doubt. If not, the defendant would
receive the traditional life sentence for first degree murder, with
parole eligibility in 7 years.

If one or more specials had been found true, however, then the penalty
trial in its new version would follow. After hearing evidence as to
aggravation or mitigation, the jury or judge would be guided by a list
of some relevant factors in reaching a verdict of death or life
imprisonment _without possibility of parole_ (LWOP). For the first
time, LWOP was made the mandatory minimum penalty for a significant
number of homicides, and thus a regular feature of California law.

At the time, this feature of the new stature seemed largely
overshadowed by the death penalty provisions, which were, of course,
the main purpose of the bill and the point of moral and political
conflict that engaged Californians of good will, dividing the Governor
and Legislature. On 11 August 1977, the statute was enacted over
Governor Brown's veto.

The one remaining major step in the evolution of special circumstances
in California was the passage in November 1978 of Proposition 7, the
Briggs Initiative. While much of the debate regarding this measure and
the changes it made to SB 155 focused on the death penalty, the
official title "Murder Penalty Initiative" proved accurately
descriptive. In fact, Proposition 7 changed the sentencing structure in
noncapital murder cases, and ironically enough may have made a valuable
contribution to the task now at hand of developing a criminal justice
system without the death penalty which can effectively speak to the
values and concerns of death penalty proponents.

Most notably, Proposition 7 dramatically expanded the number and scope
of special circumstances subject to a punishment, as in SB 155, of
death or LWOP. For example, while SB 155 restricted the felony-murder
"special" to persons present at the scene who participated in a
"willful, deliberate, and premeditated" killing (that would have
qualified as first degree murder even apart from the felony), the new
law seemed merely to require a listed felony plus a killing.
Unintentional or indeed sheerly accidental killings (the distinction
will be explained below) might be taken as falling within the net,
with level of criminal intent required for accomplices or accessories
not present at the killing also left open.[26]

Also, while new specials devoted to crimes such as the assassination of
elected officials very cogently defined murders with an obvious element
of aggravation, a circumstance like "lying in wait" seemed merely to
state a traditional variety of first degree murder where the offender's
"watching and waiting" was taken as showing a state of mind equivalent
to premeditation. In a _death penalty_ context, the latter type of
special circumstance could augur serious constitutional problems, since
a major theme of the United States Supreme Court in _Gregg_ was the
importance of limiting death-eligibility to rather narrow categories of
murder, with meaningful standards for distinguishing the few cases
within this net from the many which were not.

In a 21st-century without the death penalty, however, these features of
the Briggs Initiative become less of a problem, because there seems no
constitutional bar to making LWOP a mandatory punishment for most or
even all first degree murders. Indeed, once executions are no longer
part of the equation, legislators and voters are quite free to prefer
broader definitions and interpretations of LWOP-eligible crimes. The
main constraints may be psychological and fiscal. Psychologically, if
an important purpose of special circumstances is to express society's
outrage at especially heinous crimes, then these categories should
"stand out" in some readily understandable way from first degree
murders in general. Also, while LWOP is notably less expensive than the
death penalty process, it nevertheless has substantial costs which we
will probably not want to incur for every convicted first degree
murderer.

Thus, all in all, the special circumstances system enacted in Briggs,
when applied to an LWOP-based system of the kind that largely holds in
practice today and should become tomorrow's deliberate policy, have a
rather broad scope -- a not necessarily undesirable quality when the
constitutional complexities of the death penalty are no longer at
issue. A bit of trimming and refining may be in order here and there,
in part to assist prosecutors when they face charging decisions. At the
same time, the adoption of voluntary prosecutorial guidelines may help
clarify how, for example, the rather broad special circumstance of
"lying in wait" is applied in practice to offenses such as murders of
strangers by sniping or stalking, rather than to what are essentially
crimes of passion which may technically come within the circumstance
but do not seem significantly more blameworthy than premeditated
murders of the same variety.

Proposition 7, in addition to expanding the number and scope of the
special circumstances, made significant changes in the law of the
penalty trial to decide between the punishments of death or LWOP,
changes which, by comparison to the original procedure as carefully and
cautiously defined in SB 155, often seemed to invite constitutional
challenges, which indeed occupied state and federal courts in the
following years. However, in a system where the death penalty is no
longer a complicating factor, these debatable provisions of the measure
become moot.

As the "Murder Penalty Initiative," Proposition 7 also increased the
penalty for first degree murder without special circumstances to a term
of 25 years to life, or a minimum with good time of 16-2/3 years; and
for second degree murder to a term of 15 years to life, or a minimum of
with good time of 10 years. Previously, as has been discussed, a first
degree murderer become eligible for parole in 7 years; while, under the
Determinate Sentencing Law (DSL) enacted in 1976, second degree murder
was subject to a term of 5, 6, or 7 years.

In short, while Proposition 7 was presented and debated largely as a
death penalty measure, many of its provisions retain full force in a
system without capital punishment, and indeed help make it possible to
shape such a system so as to satisfy at least in good part the
concerns of death penalty proponents. The rather broad scope of the
special circumstances applies society's maximum constitutional
sanction of LWOP to a range of murders which may call for the highest
measure of retribution or deterrence. Also, the very substantial
minimum prison terms imposed for first and second degree murder
communicate the message that the taking of human life is indeed a
matter of the highest gravity, a crime which stands apart from other
serious felonies.

After 1978, the framework of special circumstances as approved by the
voters in Proposition 7 has been modified mainly by the addition of
certain offenses which have become focuses of public concern: for
example, drive-by shootings; gang-related murders; and felony murder in
the course of a carjacking.[27] Such a process is typical of the
criminal law in a changing society. Thus the emergence of carjacking as
a salient category of dangerous offense, albeit one often overlapping
with the more traditional offenses of robbery and/or kidnapping, has
led to its inclusion in the Penal Code both as a substantive crime
(Section 215) and as an enumerated felony for purpose of the felony-
murder special circumstance (Section 190.2(a)(17)(L)).

An advantage of a streamlined criminal justice system without the death
penalty is that such additions to the list of special circumstances
will no longer bring into play possible Eighth Amendment concerns about
whether "death-eligibility" is perhaps being extended too broadly to
satisfy the requirements of _Gregg_ and subsequent cases. With LWOP as
the uniform and mandatory penalty for special circumstances murders the
standard of federal review would appear much less exacting, with great
deference shown to state law. Indeed, the United States Supreme Court
has sustained the constitutionality of mandatory LWOP as a punishment
for certain serious offenses not involving homicide, as in _Harmelin
v. Michigan_ (1991) 501 U.S. 570 (possession of 650 grams or more of
cocaine). It seems highly desirable that the development of special
circumstances law in California should be determined by our Legislature
and voters rather than by the federal courts.

Having surveyed the history of California's special circumstances, we
now turn an area of particular interest: the scope of the felony
murder special circumstance.


---------------------------------------------------
2.1. Felony murder and the continuum of culpability
---------------------------------------------------

Killings in the course of a serious felony can range from freak
accidents involving an unarmed perpetrator to coldly premeditated
slayings of witnesses in order to prevent identification or testimony. 
Just how, where, and why to draw lines in categorizing and punishing
these homicides is a knotty problem, and has been throughout the
history of our Nation.

Under the English law, there had evolved by the late 18th century a
felony-murder rule holding that any killing in the course of a felony,
even if unintentional or purely accidental, would be deemed murder. In
a scheme of criminal justice where virtually any felony carried the
death penalty, to find the defendant additionally guilty of murder
(also capital, of course) might seem somewhat of an academic question,
although there was the possible practical distinction that prisoners
condemned for felonies such as burglary or robbery were more likely to
be reprieved and escape the gallows than convicted murderers.

One possible line of reasoning to support the felony-murder rule might
be found in the common-law concept of murder as an unlawful killing
"with malice aforethought." While malice might consist of an intent to
kill, it additionally encompassed unintentional killings where the
offender nevertheless had, as one classic formulation puts it, "a
malignant and abandoned heart, regardless of social duty, and fatally
bent on mischief." Textbook examples of acts evincing such a state of
mind include dropping a heavy object from the upper floor of a building
above a heavily-travelled city sidewalk; or shooting a gun into a
randomly selected dwelling, neither knowing nor caring whether any
human beings might be inside and in the line of fire.

It could be argued, similarly, that one setting out to commit a serious
felony, and more especially an inherently dangerous felony, is likewise
"fatally bent on mischief," and thus should be deemed to harbor malice,
making any killing that results a case of murder. Or, we might simply
assert that people who set dangerous felonies in motion should be held
strictly accountable for the consequences of their criminal acts, even
when these consequences are unintentional or indeed unforeseeable.

Whatever the precise logic proposed for the felony-murder rule, in the
first years of our Republic it was both a familiar fixture of the law
and a lively topic of controversy. Thus in 1793, Bradford reports a
proposal to reform the law in Virginia "as relates to homicide,
accidentally happening in consequence of a felonious or unlawful act,"
and quotes the proposed measure:

             "That, in future, no such case shall be deemed
              man-slaughter, unless man-slaughter was intended,
              nor murder, unless murder was intended."[28]

Bradford himself advocated this type of reform, citing, for example, a
case where "A. shooteth at the poultry of B., and, by accident,
killeth a man. If his intention was to steal the poultry, it will be
murder." In the absence of this felonious intent, however, the same
killing "will be barely manslaughter."[29] His argument for reform may
have a familiar ring to those acquainted with more recent proposals to
do away with, or dramatically curtail the scope of, the felony-murder
rule:

              "I am sensible how delicate a step it is to break in
               upon the definition of crimes formed by the accumulated
               care of ages; but, when we consider how different, in
               their degree of guilt, these offenses are, from the
               horrid crime of deliberate assassination, it is
               difficult to suppress a wish, that some distinctions
               were made in favor of homicides which do not announce
               extreme depravity."[30]

Two centuries later, with all the changes in law and society which have
intervened, the debate regarding the felony-murder rule continues,
often focusing on the same moral distinctions and dilemmas. In _People
v. Dillon_ (1983) 34 Cal.3d 441, 477, Justice Mosk writing for three
Members of the Court noted that felony murder

              "encompasses a far wider range of individual culpability
              than deliberate and premeditated murder. It includes not
              only the latter, but also a variety of unintented
              homicides resulting from reckless behavior, or ordinary
              negligence, or pure accident; it embraces both calculated
              conduct and acts of panic or rage, or acts committed
              under the dominion of mental illness, drugs, or alcohol;
              and it condemns alike consequences that are highly
              probable, conceivably possible, or wholly unforeseeable."

Whatever its merits, the felony-murder rule remains the law in
California, although in rare cases such as _Dillon_ an appellate court
may reduce the degree of the homicide so as to avoid what is seen as
grossly disproportionate, and thus unconstitutionally "cruel or
unusual," punishment.

Thus any killing in the course of a felony deemed "inherently
dangerous" to human life, although accidental or negligent rather than
intentional, constitutes second degree murder in California, punishable
by a term of 15 years to life; the question of whether a felony is
"inherently dangerous" is an issue of law which looks to the nature of
the felony "in the abstract," based on its necessary elements, rather
than the specifics of the offense in a given case.[31]

Further, a felony murder is raised to first degree murder if the
underlying felony -- the offense being committed or attempted which
results in a death -- is included as one of the crimes listed in Penal
Code Section 189: arson, rape, carjacking, robbery, burglary, mayhem,
kidnapping, train wrecking; torture (Penal Code Section 206); or
certain specified forms of sexual assault or molestation. Thus, if one
of these enumerated felonies results in a death, however accidental,
under Section 189 the punishment for first degree murder applies: a
term of 25 years to life.

In approaching the issue of the felony-murder special circumstance, we
take this legal backdrop for granted. Thus the question is not whether
any killing in the course of a felony listed in Penal Code Section 189
should be subject to very serious punishment: as a case of first degree
murder, it already is.

Rather, the question is at what level of culpability this first degree
felony murder, already calling for life imprisonment with a mininum
term of 16-2/3 years even allowing for good time, should additionally
come within the net of a special circumstance escalating the penalty to
mandatory LWOP.

As noted above, the felony-murder special circumstance as originally
introduced in 1973 had the purpose of defining a crime subject to a
mandatory death penalty (later found to be unconstitutional), with the
scope limited to a defendant who actually committed a "willful,
deliberate, and premeditated" killing in the course of a specified
felony. Such a crime, in Bradford's language a "deliberate
assassination" in the course of such felony, clearly involved
heightened culpability as compared with either an unintentional felony
murder, or a premeditated first degree murder (e.g. stemming from a
personal quarrel) not occurring in the course of another serious
felony.

The 1977 statute, SB 155, had a very similar felony-murder special
circumstance, or "special" for short, with the defendant being
"personally present" and directly participating in a "willful,
deliberate, and premeditated killing." Under this statute, as discussed
above, the penalty was made discretionary and determined in a penalty
trial: either death or LWOP.

With this kind of narrowly drawn special, the rationale for the
heightened penalty in comparison with usual first degree felony murder
is quite clear from a viewpoint of either retribution or deterrence.
From the standpoint of retribution or denunciation, the planned
killing of a storekeeper during a robbery to avoid identification is
an especially heinous offense in its calculated violence; more so, for
example, then even an intentional but unpremeditated killing when a
robber meaning only to rob is surprised by a shot the storekeeper
suddenly fires in perfectly lawful resistance, reacts by returning
fire, and unfortunately inflicts a fatal wound.

From a viewpoint of deterrence, also, the robber who contemplates
killing any and all victims as part of the advance planning for a crime
might be more likely to consider the legal penalty for this killing
than a robber who intends only to rob, albeit while carrying a firearm,
and so may be less likely to weigh the consequences if the robbery
"goes bad" with fatal results.

While it remains an open question how often or to what extent criminals
actually make such decisions in a rational way, the assumption that
they sometimes do so has been a commonplace among judges and law
enforcement officials throughout our Nation's history. 

Thus in 1793, Bradford cautioned that abolition of the death penalty
must be done in the right way, with the penalty for a deliberate murder
in the course of a robbery remaining dramatically higher than that for
robbery itself. As a cautionary tale, he relates how, through much of
the century, Russia under the Empresses Elizabeth and Catherine the
Great imposed the same noncapital penalty for robbery and murder, with
robbery "constantly attended by murder." A "discrimination in the
punishment" of these crimes was therefore prudent.[32]

In the _Gregg_ decision of 1976 upholding the constitutionality of the
death penalty, 428 U.S. 153, 186, the Court similarly reasoned that in
certain "carefully contemplated murders, such as murder for hire," the
possible penalty "may well enter into the cold calculus that precedes
the decision to act." A carefully planned burglary, robbery, or sexual
assault where the death of the victim is part of the criminal's agenda
might likewise make consideration of legal consequences more likely.

Thus in a 21st-century system of criminal justice with LWOP as the
maximum penalty, retaining at least the narrow 1973 or 1977 version of
the felony-murder special circumstances requiring "a willful,
deliberate, and premeditated killing," would serve the same retributive
and deterrent purposes as in a system with capital punishment.

In 1978, however, Proposition 7 broadened this special circumstance by
removing the requirement for a "willful, deliberate, and premeditated"
killing. or indeed any criminal intent beyond that required for the
underlying felony that resulted in the killing. In other words, any
first degree felony murder under Penal Code Section 189 might
automatically bring into play this special circumstance -- including a
crime where the killing was unintentional, or even purely accidental.
Such a crime could thus be subject to a penalty of either LWOP or
death.

The California Supreme Court, in _Carlos v. Superior Court_ (1983) 35
Cal.3d 131, reached what was probably the most logical and reasonable
result, given the possible penalty of death: this special circumstance
should be interpreted to require "intent to kill," or "to aid in a
killing." Thus, unlike the 1973 and 1977 statutes, Proposition 7 did
not require premeditation: an intentional but quite unpremeditated
killing, as in a spur-of-the-moment reaction to the initiation of
deadly force by a resisting robbery victim, would now be subject to a
penalty of death or LWOP. An unintentional robbery-murder, however,
would be treated as under the earlier statutes as drawing the basic
penalty for first degree felony murder under Penal Code Section 189: 25
years to life.

In _People v. Anderson_ (1987) 43 Cal.3d 1104, however, Court
overruled _Carlos_, preferring an interpretation that under
Proposition 7, the felony-murder special circumstance required an
intent to kill on the part of an aider or abettor, but not an actual
killer. Thus, at least in theory, a felony-murder defendant could be
sentenced to LWOP or even executed for an accidental killing. The
majority based their rejection of the more cautious interpretation in
_Carlos_ upon recent changes in federal constitutional law as declared
in decisions of the United States Supreme Court holding that the death
penalty was not invariably a cruel and unusual punishment for felony
murder in the absence of an intent to kill. Forcefully and eloquently
dissenting from this portion of the opinion, Justice Broussard
observed that quite apart from the question of what the federal
Constitution might or might not permit, many Californians "would think
such an execution disproportionate to the culpability of the
defendant," id, 43 Cal.3d at 1166. Thus the Court might wisely had let
_Carlos_ stand.

While the _Anderson_ decision left in place the _Carlos_ requirement of
intent to kill for participants in a felony other than the actual
killer, Proposition 115, the "Crime Victims Justice Reform Act" adopted
by the voters on 5 June 1990, reduced the degree of intent required for
these offenders to "reckless indifference to human life" (Penal Code
Section 190.2(d)), a standard which the United States Supreme Court had
approved in _Tison v.  Arizona_ (1987) 487 U.S. 137, a case discussed
below. In _People v. Estrada_ (1995) 11 Cal.4 568, 580, the California
Supreme Court concluded that "reckless indifference to human life"
should be interpreted to mean "knowingly engaging in criminal
activities known to carry a grave risk of death."

In a death penalty context, limiting the felony-murder special
circumstance to defendants with an "intent to kill" as in the _Carlos_
interpretation of Proposition 7, or even to a "willful, deliberate, and
premeditated killing" as in the 1977 law, is the best (i.e. least
unjust) policy. 

When LWOP is society's maximum sanction, however, a somewhat broader
scope might be considered for the felony-murder circumstance. This
penalty, while enormous in its severity, allows room for rehabilitation
in a custodial setting, and also for correction of any miscarriages of
justice. In addition to providing a nonlethal replacement for the death
penalty when the atrocity of a crime calls for the highest level of
retribution, LWOP might also serve a deterrent purpose for less
atrocious but still highly dangerous crimes where many death penalty
proponents as well as opponents might find execution disproportionate
to culpability.

Attorney General and then Governor Pat Brown nicely sums up an argument
which, although directed to the death penalty, might apply more aptly
to LWOP:

         "If the death penalty deters any kind of crime at all
         (and in the literally hundreds of studies I've read over
         the last forty years, I must say that I've never found
         any convincing evidence that it does), it should be the
         crime of murder committed while carrying a loaded gun
         during a robbery. This was a message I always tried to
         make very clear: take a loaded gun along on a robbery
         that results in a death and you'll go to the gas chamber
         for sure."[32]

The Governor's illustrations of his policy disfavoring clemency in such
cases involve the robbery of an auto parts store where the offender
noticed that a customer had "handcuffs on his belt," the mark of an
off-duty police officer, and "shot him down in cold blood"; and an
offender who "in 1962 shot a Los Angeles cab driver in the head while
robbing him of four dollars."[33] Both cases sound like intentional
killings, with the first, at least, quite likely premeditated.

A fine point is that while Governor Brown's words underscore his
disclination to intervene in such cases despite his strong personal
opposition to capital punishment, a convicted defendant would not
necessarily "go to the gas chamber," because the jury or trial judge
might exercise its discretion to show mercy and impose a sentence of
life imprisonment (with parole possibilities). In contrast, a system
with mandatory LWOP could accurately assert that any defendant
convicted of such a crime falling within a felony-murder special
circumstance _would_ receive that awesome sentence "for sure."

While the two cases he relates both seem to involve intent to kill, his
remarks about the second case might have a wider relevance: "[T]o my
mind, he sealed his fate when he slipped his bullets into that gun and
set out to commit a crime."[34]

The Governor's words might lead one to a conclusion that a severe
penalty for felony murder may serve not only to encourate at least some
offenders to think twice about intentionally killing people in the
course of a crime, but also to consider choices which might minimize
the chance of either an intentional or unintentional killing, such as
using a toy gun or a real one that is unloaded -- if they must commit
the felony in the first place!

In a statutory scheme like the one now in effect in California, but
without the death penalty, there are two grades of punishment available
for first degree murders in the course of a felony enumerated in
Section 189. Any killing, even an accidental one, is subject to a
sentence of 25 years to life. The question before us is how and where
we should draw the line between such a "usual" felony murder and one
additionally coming within the felony-murder special circumstance with
its mandatory penalty of LWOP.

A few actual or hypothetical cases will give some sense of the
continuum. Exactly where we would draw the line between a "typical"
first degree murder felony punished by 25 years to life and an
"aggravated" crime falling within the special circumstance and punished
by LWOP, and how we would formulate that line in wording a statute,
remain knotty problems.

Let us begin with the famous case of _People v. Stamp_ (1969) 2
Cal.App. 3d 203, in which the defendants robbed a business called the
General Amusement Company, armed with "a gun and a blackjack." The
employees were ordered to the front of the premise, as was the owner
and manager Carl Honeyman. These victims were "required to lie down on
the floor" as the robbers proceeded to take the money and then "fled
out the back door." The crime took place over a period of about "10 or
15 minutes," with the victims instructed to remain on the floor for an
additional five minutes "so that no one would 'get hurt'." _Stamp_,
id. at 207-208.

This seems like a fairly typical armed robbery, and if we would like to
make the point of this case yet more emphatic, we can imagine that the
gun carried by one of the defendants was actually a toy, or at least
was unloaded or otherwise inoperative. As Governor Brown has reminded
us, this would have eliminated the _risk_, often substantial, of either
an intentional or unintentional shooting.

Reading the facts of _Stamp_ so far, we might take it as a typical
robbery. However, after the robbers left, the owner Carl Honeyman
suffered the increasing symptoms of what proved to be a heart attack. 
When the police arrived some minutes later, he complained of chest
pains, collapsed, and died on the way to the hospital.

At the trial, there was medical testimony that Honeyman, at age 60, had
"an advanced case of atherosclerosis, a progressive and ultimately
fatal disease." He was under considerable occupational stress, as
we might now call it, given "the intensely competitive nature of his
business," was "obese," and "did not take good care of his heart."
However, the doctors concluded that "there must have been some
immediate upset to his system which precipitated the attack."
Therefore, "but for the robbery there would have been no fatal seizure
at that time." _Stamp_, 2 Cal.App.3d at 208.

Accordingly, the defendants were correctly convicted of first degree
murder since Honeyman's death was the result of their robbery, one of
the felonies enumerated in Penal Code Section 189. They received life
sentences with parole eligibility in 7 years. Today, the penalty would
be a term of 25 years to life.

The _Stamp_ case is a classic example of a felony murder involving an
accidental and essentially unforeseeable killing. The defendants meant
only to rob, and in the course of their crime did not do anything that
appears notably brutal or reckless -- beyond the inherent risk and
danger of a serious felony which requires a wrongful taking
"accomplished by means of force or fear" (Penal Code Section 211). 
Unfortunately for Honeycut, "[t]he fright of the robbery was took much
of a shock to [his] system," id., 2 Cal.App.3d at 208. As the Court
remarked, "the robber takes his victim as he finds him," id. at 211.

To explain how this type of accidental killing may nevertheless be
taken to have been done with "malice aforethought," and thus constitute
murder (then being raised to the first degree under Penal Codd Section
189), the _Stamp_ Court follows the traditional view that the law
"presumes" such malice "on the basis of the commission of a felony
inherently dangerous to human life," id. at 210. The later _Dillon_
case, however, adopted the more stark and spare legal doctrine that in
California "malice is not an element of felony murder," 34 Cal.3d 441,
475. A third possible approach, which might combine certain attractions
of both the traditional _Stamp_ and the modern _Dillon_ doctrines, is
to say that in effect the intent to commit a dangerous felony itself
constitutes a kind of "malice aforethought": that is, it evinces "an
abandoned and malignant heart" which is "fatally bent on mischief." 

Under a felony-murder special circumstance without any intent
requirement beyond that required for first degree murder under Penal
Code Section 189 -- intent to commit the underlying felony, here
robbery -- this accidental and essentially unforeseeable killing would
carry a penalty not merely of 25 years to life, but of mandatory LWOP.
At least to this author, this seems rather disproportionate, and might
dilute the moral force of LWOP as a denunciation of the most serious or
aggravated homicides. Also, while the possibility (however unlikely) of
a first degree murder conviction for a purely accidental death might
exert some deterrent force in discouraging the basic crime of robbery,
we might want to reserve LWOP as a sanction targetted at conduct more
reckless or blameworthy than that required for this underlying felony
itself.

We next come to one of the most influential felony-murder cases of the
20th century, although it is better known for the constitutional issues
it raised that for its facts. William Henry Furman was burglarizing a
residence in Georgia when he was detected, and according to his own
account which was taken by the courts to reflect the facts, then
attempted to leave the scene when he tripped over a wire, fell, and the
gun he was carrying went off. Unluckily, the bullet penetrated a closed
door and hit a resident, inflicting a fatal wound. Furman, who rose
and ran off after this accident, said that he was unaware anyone had
been hurt or killed until the police informed him of the consequences
of his unintended shot. See Furman, supra, 408 U.S. 238, 294
(concurring opinion of Justice Brennan); and Steven F. Shatz, "The
Eighth Amendment, the Death Penalty, and Ordinary Robbery-Burglary
Murderers: A California Case Study," 59 Fla. L.Rev. 719 (2007).

His victim was William Joseph Micke, Jr., a father of five. Here the
criminal intent was simply that of burglary, a felony which in
California is not only regarded as "inherently dangerous" but which,
like robbery, is one of the enumerated felonies in Penal Code Section
189 which will elevate any killing committed in its course to first
degree murder.

In _Furman_ we do have a relevant element of intent or risk beyond that
inherent in a residential burglary itself, which by nature may both
alarm any dwellers present and also invite dangerous confrontations
between the invader and these victims: the carrying of a loaded gun, as
Governor Brown might again remind us. If Furman had instead brought
along a knife or club, in his tripping and fall, he might at most have
hurt himself, rather than haplessly killing an unseen victim behind a
closed door. Or, if his firearm had been unloaded, the same statement
would apply.

If we regard this as a "simple" or unaggravated first degree
burglary-murder, Furman tried under California law would get 25 years
to life. While felons seem rather routinely to carry loaded firearms,
there is an argument that we might want to send a message that such
conduct will not be taken as so "routine" by the law by bringing this
type of killing within the felony-murder special circumstance. We might
set the standard as that of a "reckless" killing, since attempting
hurriedly to escape from a presumably unfamiliar dwelling while
carrying a loaded weapon is conduct carrying a rather tangible risk to
human life. Or, we could more specifically say that a killing caused by
the discharge of a firearm used by a defendant in the course of the
felony falls within the special circumstance, and thus carries a
sentence of mandatory LWOP.

If we want LWOP to carry a message of blameworthiness or dangerousness
substantially beyond that of a "usual" first degree murder, then this
still seems a bit of a stretch: the killing resulted from the presence
of the weapon plus a violation of some basic rules of gun safety, but
remained accidental, with an intent only to burglarize. One might argue
that the first degree felony murder statute itself, with its penalty of
25 years to life, is about the right level of deterrence -- especially
if such cases are cleared reliably and swiftly, and this becomes well
known in criminal circles.

A higher level of blameworthiness is illustrated by another type of
unintentional killing: the tragic death of Myrna Opsahl in a Sacramento
bank robbery committed by a violent urban guerrilla group known as the
Symbionese Liberation Army (SLA) on 21 April 1975. This group had
previously attracted attention by such acts as the assassination of
Oakland School Superintendent Marcus Foster and the kidnapping of
Patricia Hearst.

While accounts of the killing somewhat vary, we will take the scenario
to be as follows. Ms. Opsahl arrives at the bank with two friends in
order to deposit the proceeds from a collection by her church; the
robbers enter at about the same time. Then everyone is brusquely
ordered to hit the floor, with obscenities and other signs that this
may be a crime of the SLA, a group with a reputation for bank robbery.
Likely because Ms. Opsahl is carrying an adding machine, she is slower
in getting down -- and one of the robbers, Emily Harris, impatiently
prods her with a loaded shotgun, which discharges, inflicting wounds
which cause death from massive loss of blood. We will accept Harris's
statement that she never meant for the weapon to fire.

Here we have not only a robbery, plus the decision to commit it while
carrying a loaded firearm, but the act of pointing it at Ms. Opsahl and
using it to prod her -- rather imminently dangerous conduct which might
meet the standard discussed by the United States Supreme Court in
_Tison v. Arizona_ (1987) 487 U.S. 137 of "reckless indifference to the
value of human life." In a 5-4 decision, the majority ruled that this
test of "reckless indifference," even without an intent to kill, could
suffice to justify the death penalty in a felony-murder case. 

The _Tison_ case, while tried in a jurisdiction with the death penalty,
raises issues of accomplice liability which could also arise in
California under system with LWOP as the relevant penalty. Gary Tison
was under a sentence of life imprisonment for an escape during an
earlier prison term in which he had killed a guard. Tison and his
family planned his escape, which he insisted must also include his cell
partner Randy Greenawalt, "also a convicted murderer," id., 487 U.S. at
139 (Justice O'Connor writing for the Court). Among the Tison family
members participating were Gary's sons Raymond and Ricky, who along
with their brother Donald carried into the prison "a large ice chest
filled with guns."

The three brothers, together with their father and his cellmate,
brandished the guns and herded some guards and visitors into a storage
closet, which was then locked, escaping the grounds without any shots
being fired. The group spent two nights at an isolated house, and had
trouble with flat tires on a car they were using. A decision was made
to flag down and steal the vehicle of some unsuspecting motorist. A
family passing by did stop, and were robbed of their car and kidnapped:
"John Lyons, his wife Donnelda, his 2-year-old son Christopher, and his
15-year-old niece, Theresa Tyson." _Tison_, id., 487 U.S. at 139-140.

Eventually the victims were driven into the desert, where John Lyons
begged not to be killed. Gary Tison replied that he was "thinking about
it." Lyons suggested that he and his family might be left there with
some water, "and you all go home." Tison then directed his three sons
to go the vehicle of the Lyons family and get some water. Exactly what
happened at this point was told somewhat differently by the two brother
defendants, and recounted a bit differently in the majority opinion,
id., 487 U.S. at 141, and Justice Brennan's dissent, id. at 165-167.
While brother Raymond said that he was still filling a jug with water
when he started to hear shots, Ricky said that either they were
returning to their father and were a short distance away, or had just
handed the jug to him, when their father and his prison companion
Greenawalt began the shooting, brutally killing the family with
repeated shotgun blasts. The evidence at the scene suggested that
Theresa Tyson, although severely wounded, had managed to crawl away and
died in the desert after the departure of the perpetrators, id. at 141
(majority opinion).

Here it was uncontested that the two brothers on trial -- their brother
Donald had been killed in the shootout with the police in which they
had been apprehended along with Greenawalt, while their father had fled
into the desert and eventually died of exposure -- had not themselves
killed, attempted to kill, or intended that anyone be killed. As
related in Justice Brennan's dissent, they had an agreement with their
father "that nobody would get hurt"; although this was arguably one of
the least reliable assurances offered in the history of the 20th
century, the brothers evidently relied upon it and were surprised and
shocked by the shootings of the innocent and unresisting victims, id.,
487 U.S. at 166-167.

Thus the accidental robbery-murder of Myrna Opsahl by Emily Harris
involved pointing and prodding with a loaded shotgun by the offender
herself which seems to meet a standard of "reckless indifference to
human life," an act escalating the risk of causing a death considerably
beyond that inherently involved in a robbery, or even an armed robbery
such as that committed by Furman.

The two Tison brothers, in contrast, had no part in the evidently quite
premeditated slaughter of the four kidnap victims, although they were
very active participants indeed in the series of felonies (prison
escape, robbery, kidnapping -- and, under current California law, also
carjacking). Nor did they at any point counsel or agree that the victims
be killed; rather they had agreed with their father, however improbably, 
that "nobody would get hurt." The "reckless indifference" was rather
their willingness to provide guns and otherwise participate in an armed
escape with their father and his cell partner, both known murderers.

Under California law as established in Proposition 115 and interpreted
in _Estrada_, both Emily Harris and the Tison brothers would appear
subject to LWOP. For Harris, this result seems intuitively cogent if
not persuasive, since her prodding of Ms. Opsahl with a loaded shotgun
rather obviously brought into play risks to human life considerably
greater than those necessarily involved in a robbery. For the Tison
brothers, however, their only intent was to participate in the
underlying felonies, not to commit additional acts which would escalate
the risk to the lives of the victims -- or, indeed, to kill them in an
intentional, and very likely willful, deliberate, and premeditated
manner.

Further, under either the _Estrada_ decision of 1995 or the _Anderson_
decision of 1987, William Henry Furman would also be subject to LWOP
for his accidental killing of William Joseph Micke, since if we assume
that his negligence when it came to the basics of gun safety would not
amount to "reckless indifference to human life" (the unlucky direction
of the unintended shot while he was fleeing the scene of his burglary
rather than confronting the victims seems quite different than Emily
Harris's confrontation with Myrna Opsahl), he was nevertheless the
actual killer, with no intent requirement beyond that of the underlying
felony!

While one could write volumes about just how undesirable this state of
affairs would be in a death penalty context, our topic here is a
system with LWOP as the maximum penalty. In that context, there is
something to be said for Governor Brown's approach that committing
certain dangerous felonies with a loaded gun should suffice to trigger
strict liability, and society's most severe penalty. From the facts of
the _Tison_ case, one might find the basis for a more specific
proposal: that anyone who becomes a major participant in an armed
prison escape or attempted escape by a prisoner under sentence for
murder should be held strictly liable for any death that results. Such
a rather narrow special circumstance would focus both on the
heightened danger to life posed by an armed prison escape, where the
authorities have not only the right but the duty to prevent the crime
if possible, even by the use of deadly force; and on the escalated
risk posed by the prisoner's known homicidal propensities, as with
Gary Tison and his cellmate Randy Greenawalt.

Suppose, however, that we take the position that Governor Brown's
deterrent purpose can be adequately served for accidental or negligent
killings by the first degree felony-murder of Penal Code Section 189
itself, espcially since 1978, when the punishment for first degree
murder (in the absence of special circumstances) was fised at 25 years
to life. What level of intent might require for the felony-murder
special circumstance, and LWOP?

Likely the best standard is suggested by the facts of another famous
case: _People v. Ramos_ (1984) 37 Cal.3d 136. Here we take the account
of the crime offered by the defendant Marcelino Ramos as accurate,
although the Court characterized it as "self-serving and implausible,"
id. at 148.

Ramos and codefendant Ruben Gaitan robbed a Taco Bell restaurant where
Ramos was employed as a janitor, and therefore recognized when he
arrived in the early morning, just before closing time, by Kevin
Pickrell, who was working there along with his colleague Kathryn
Parrott. Gaitan had already arrived and placed an order, presenting
himself as a customer. Ramos gained access to the work area by asking
to check his schedule, and soon returned with a rifle, ordering
Pickrell and Parrott into a walk-in refrigerator in the rear of the
restaurant. _Ramos_, id. at 143.

Ramos "then directed Parrott and Pickrell... to kneel on the floor,
remove their hats, and say their prayers." According to his own
account, the crime having proceeded to this fateful point, "at first he
simply hit each of the victims with a metal pipe and left them
unconscious in the refrigerator." When he returned to the front of the
restaurant, however, Gaitan "told him that the two must be killed to
prevent them from identifying him or Gaitan." Ramos then went back
again to the victims, and fired an angled shot at each of them with the
intent of only grazing their heads, making it look as if he had killed
them if Gaitan decided to check the scene. _Ramos_, id. at 143-145.

However, when Pickrell, who recalled hearing and feeling blows to
Parrott and himself but not any gunshot, "heard no movement in the
building," and called the police, they found that she was dead. Later
medical examinations showed that both victims had lacerations on the
backs of their heads, "apparently caused by a blow from a blunt, heavy
object." Parrott "had died of a gunshot wound to the head," while
Pickrell had "a piece of tissue missing from his right ear which could
have been caused by a glancing gunshot," id. at 143-144.

Taking the defendant's story, however plausible or otherwise, at face
value, we might conclude that Ramos, like the Tison brothers, had made
the mistake of choosing the wrong crime partner. There is, however, a
critical difference between the two cases. The two brothers, although
they placed a very major role in the robbery and kidnapping of the four
members of the Lyons/Tyson family, neither took part in the
cold-blooded murder of these four unresisting victims, nor intended
their deaths, nor inflicted any physical injuries on them; their father
had earlier agreed that "nobody would get hurt." While such an
agreement, if taken as a categorical prediction, could hardly be relied
upon given the inherently dangerous nature of the felonies on which
these associates in crime were embarking, the sons could reasonably
have construed their father to mean that unresisting victims would not
be intentionally hurt.

Ramos, in contrast, himself had deliberately wounded the victims both
by striking them on the head with a lead pipe, and by shooting at their
heads with his rifle. Either form of assault would obviously have a
high probability of causing death, even if Ramos did not intend this
result. Such acts dramatically raise a defendant's level of culpability
by comparison to that of a felon who does not intend actually to use
such life-threatening force against any victim -- even if a death
nevertheless results from improbable accident (_Stamp_); some degree of
negligence (_Furman_); or even gross negligence or recklessness (the
case of Emily Harris).

In _Ramos_, the Court applied the _Carlos_ standard of "intent to kill"
and reversed the felony-murder special circumstance for retrial by a
jury instructed in this standard which could determine whether such an
intent had been established beyond a reasonable doubt notwithstanding
the defendant's story; this was the correct result in a system with the
death penalty. However, with LWOP as the uniformly applicable penalty,
there is a powerful if not compelling case for adopting the somewhat
less exacting standard proposed by the Attorney General in that case.

As the Court noted, 37 Cal.3d at 148 n. 3, this standard would hold
that the felony-murder special circumstance may be triggered by "an
intent to inflict serious bodily injury under circumstances posing a
risk of death" -- a standard similar to that for "implied malice" which
"distinguishes involuntary manslaughter from second degree murder."

In other words, the felony-murder circumstance should be worded so as
to require either intent to kill, or an unintentional killing which,
apart from the underlying felony, would still qualify as second degree
murder by manifesting "implied malice," or "an abandoned and malignant
heart" (Penal Code Section 188).

This test could be satisfied, as in _Ramos_, by an act meant to
inflict and actually inflicting great or serious bodily injury.
Additionally, following the law of second degree murder in California,
the test could be met by conduct which, although it may not be
specifically intended to inflict death or great bodily injury, creates
such a heightened risk of such an outcome that we take it to indicate
"an abandoned and malignant heart."

Someone who attempts to practice upon another human being the legendary
feat of William Tell by using a bow and arrow or a modern firearm to
shoot an apple off the victim's head, instead causing death, would fall
in this category. While there have been various formulations over
recent decades of the best language to define the mental state for an
unintentional second degree murder, one good choice for a felony-murder
special circumstance would be "conscious and wanton disregard for human
life shown by an intentional act known to have a high probability of
causing death." 

The term "wanton," although disfavored in recent California Supreme
Court decisions, see _People v. Knoller_ (No. S134543, 31 May 2007) ___
Cal.4th ___, not only has a time-honored place in the jurisprudence of
"abandoned heart" murder but serves admirably to indicate a state of
culpability beyond that of mere "recklessness." Whlle "reckless" and
"wanton" are often used as synonyms, the latter term can convey
"extreme recklessness," or an act which is not merely reckless but
"wantonly reckless." The distinction may lie both objectively in the
presence of a notably higher probability that death will result, and
subjectively in the greater degree of callousness to this risk or
sometimes even positive enjoyment of it shown by the defendant.

In _People v. Thomas_ (1953) 41 Cal. 470, 480, Justice Traynor in his
concurring opinion, states a standard of "wanton disregard for human
life," and id. at 479, provides some examples of conduct meeting this
standard of "conscious disregard for human life": "striking the victim
with a knife"; "firing shotgun at trespassers"; "shooting with intent
only to wound"; "firing at random into crowded dance hall." In this
case, according to one of the defendant's own statements, the facts
were very much along the line of the William Tell scenario above:
Thomas had attempted with a .22 caliber rifle to shoot a woman's coffee
cup out of her hands while she held it close to her face, instead
hitting her in the ear and killing her outright, id. at 480. 

What these examples of Justice Traynor, one of the greatest jurists in
the history of our state, share, is that the defendants can in a very
real sense be said to have intentionally "used deadly force," not
merely to have threatened it or recklessly to have risked its
unintentional use. We might say that Furman's or even Harris's
negligent or reckless use of their guns "misfired" in a lethal way; but
Ramos's blows to both victims, and his fatal shot to Kathryn Parrott's
head, were not mis-fires but deliberate applications of patently deadly
force, even in the absence of a specific intent to kill. Thus the
traditional concept of "wanton indifference to human life," as glossed
in Justice Traynor's classic exposition in _Thomas_, is the best
standard for the felony-murder special circumstance even if this
language has become unfashionable in more recent California cases.

The New York case of _People v. Sanche_ (2002) N.Y. Ct. App.,
<http://straylight.law.cornell.edu/nyctap/I02_0086.htm>, illustrates
the essentially equivalent concept of a murder committed "under
circumstances evincing depraved indifference to human life," New York
Penal Law Section 125.25(2). The defendant Oswaldo Sanche had killed
his friend Timothy Range by shooting him at close range from behind a
"partly-closed" door. As the lead opinion of Judge Levine explained,
the two men "were friends," and "had engaged in activities together
and socialized" because of their intimate relationships with two women
who were sisters. "The shooting itself appeared to have been sudden,
spontaneous, and not well-designed to cause imminent death." The jury
convicting Sanche of "depraved indifference" murder may thus have
concluded "that this was an instantaneous, impulsive shooting --
perhaps to disable or frighten Range, rather than to kill him."

Under this scenario, the Court found that although the jury had found
the killing unintentional, "defendant's shooting into Range's torso at
point blank range presented such a transcendant risk of causing his death
that it readily meets the level of manifested depravity" required for
murder under the New York statute. (This shot, fired intentionally from
behind a partly-closed door at the victim's torso, contrasts with
Furman's shot fired by accident as he tripped while trying to flee the
scene, which fortuitously and unfortunately happened to take a
direction sending it through a closed door to hit and kill Micke.)

A rather similar standard may have been suggested for interpreting the
intent requirement for California's felony-murder special circumstance
in _People v. Purcell_ (1993) 18 Cal. App.4th 65, 74, when it read the
_Tison_ standard of "reckless indifference to human life" adopted in
Proposition 115 to "refer to a mental state which includes subjective
appreciation, or knowledge, by the defendant that the defendant's acts
involved an extreme likelihood that such acts could result in the death
of an innocent human being."

As the Supreme Court accurately observed in _Estrada_, 11 Cal.4th at
79, "a close reading of _Tison_ fails to disclose the high court's
intent to set the degree of risk posed by a defendant's conduct at the
level of `extreme likelihood.'" Thus the _Estrada_ Court disapproved of
this language in _Purcell_. However, it is here asserted that while the
_Purcell_ Court had indeed gone beyond _Tison_ as it was actually
decided, it aptly stated how _Tison_ should have been decided, and how
the felony-murder special circumstance should be framed.

Interestingly, the _Tison_ Court, 481 U.S. 137, 157, gave some examples
of "reckless indifference to the value of human life" which would also
meet the advocated standard of "conscious and wanton disregard for
human life," and likely also the "extreme likelihood" of causing death
proposed as an appropriate guide for a jury in _Purcell_:

            "[S]ome unintentional murders may be among the most
             dangerous and inhumane of all: the person who tortures
             another, not caring whether the victim lives or dies, or
             the robber who shoots someone in the course of the
             robbery, utterly indifferent to the fact that the desire
             to rob may have the unintended consequence of killing the
             victim, as well as taking the victim's property."

These examples illustrate the kind of conduct which, unlike that of
the Tison brothers who not did themselves use, intend, or counsel the
use of deadly force against their victims and whose father had agreed
that "nobody would get hurt," does intentionally use such force,
albeit without a specific intent to kill.

Under the recommended standard of "conscious and wanton disregard of
human life," the felony-murder special circumstance will require intent
to commit the underlying felony plus additional acts done with an
intent satisfying the classic "abandoned and malignant heart" standard
for unintentional murder.

Reserving the maximum punishment of LWOP for these crimes will help to
communicate the unique degree of moral reprobation signified by this
penalty, and to affirm that special circumstances are indeed "special."
However, this policy does not prevent society from imposing other
escalated penalties on first degree felony murders who kill by the
accidental, negligent, or reckless but not "wanton" discharge of their
firearms like William Henry Furman or Emily Harris. Such offenders,
under California Penal Code Section 12022.53(b), are subject to an 
"additional and consecutive term of 10 years" for personal use of a
firearm. 

Possibly these increased penalties might be carefully graded according
to the degree of culpability involved in the killing: simply carrying a
loaded gun which causes death through a truly "freak" accident;
negligence such as that shown by Furman's hasty flight, leading to the
death of William Joseph Micke; or recklessness shown by intentionally
pointing the weapon at another human being, or even prodding a victim
with it albeit without intent to fire, as Harris did with fatal results
to Myrna Opsahl. These situations seem somewhat intermediate in their
degree of culpability between that of a defendant who merely "uses" a
firearm, as addressed in Section 12202.53(b); and that of a defendant
who "personally and intentionally" discharges a firearm, as addressed
in Section 12202.53(c), which imposes an "additional and consecutive
term of 20 years."

It might also be noted that Section 12202.53(d) imposes upon any person
who personally and intentionally discharges a firearm and causes "great
bodily injury..., or death, to any person other than an accomplice"
shall "an additional and consecutive term" of 25 years to life" -- equal 
to that for first degree murder without special circumstances. Thus if 
one chose to make the felony-murder special circumstance more clearly 
"special" by applying the _Carlos_ requirement of a specific intent to 
kill, then many cases of an unintentional first degree felony murder 
with a firearm coming within the broader test of "conscious and wanton 
disregard for human life" would likely involve the intentional discharge 
of that firearm, effectively carrying a sentence of 50 years to life, 
or a minimum of 33-1/3 years with good time before eligibility for parole. 
An advantage of this alternative scheme is that it recognizes the 
distinction between an "intentional" and a "wanton" killing by leaving 
open the possibility of parole for the latter offense but certainly 
imposing one the most severe sanctions short of LWOP.  


---------------------------------------------------------
3. Comparative Proportionality and Appropriateness Review
---------------------------------------------------------

          "Legislators feel themselves elevated above the commission
           of crimes which the laws proscribe; and they have too
           little personal interest in a system of punishments, to be
           critically exact in restraining its severity. The degraded
           class of men, who are the victims of the law, are thrown at
           a distance which obscures their sufferings, and blunts the
           sensibilities of the legislator. Hence sanguinary
           punishments, contrived in despotic and barbarous ages, have
           been continued, when the progress of freedom, science, and
           morals, renders them unnecessary and mischievous; and laws,
           the offspring of a corrupted monarchy, are fostered in the
           bosom of a youthful republic."

           -- Justice William Bradford, Supreme Court of Pennsylvania
             _An Enquiry, how far the Punishment of Death is
              Necessary in Pensylvania_ (1793)[35]


As William Bradford recognized over two centuries ago, legislative
policy may not always keep pace with "the progress of freedom,
science, and morals" -- or what the United States Supreme Court more
recently termed "the evolving standards of decency which mark the
progress of a maturing society," _Trop v. Dulles_ (1958) 356 U.S. 86,
101. When progressing "morals," or "standards of decency," come into
tension with the state of the criminal law, that tension is felt
especially by those who must apply the law to concrete cases: our
jurors and judges.

Bradford, in assessing the effects of an act of 1786 in Pennsylvania
which replaced death with penal labor as the penalty for the serious
felonies of robbery and burglary, observed that convictions of
defendants as charged were more frequently obtained under the new law,
while acquittals or "partial acquittals" (in today's parlance,
convictions for lesser offenses) occurred in a smaller proportion of
cases: "in this... I see nothing but the humane struggles of the jury
to save the offender from death." He cites the results obtaining under
the old capital statutes as "[a] proof how much the severity of the
law tends to defeat its execution."[36]

In California today, the "humane struggles" of the jury to do
equitable justice occur within the framework of the law during the
penalty phase of a capital case. Jurors who are quite willing in the
abstract to vote for ballot measures legitimating the death penalty
(e.g. Proposition 17, passed in 1972) or expanding its applicability
to a wider range of crimes (e.g. Proposition 7, passed in 1978), or to
elect public officials committed to these policies, may find it more
difficult to vote for a death penalty verdict against a specific human
being after learning something about that person's history and human
qualities.

Further, as William Bradford noted, penal legislation may be
especially difficult to revise in an ameliorative direction because,
to state the problem in contemporary terms, Death Row prisoners rarely
enjoy the support of the most powerful lobbies. In such situations,
under a system of government like ours which includes a court system
charged with interpreting and applying constitutional guarantees, the
appellate courts have a role to play when legislative inertia or
misdirection infringes on these guarantees.

Thus in _United States v. Carolene Products Co._ (1938) 304 U.S. 144,
152 n. 4, the Court, having declared its policy of deferring to the
legislative judgment of Congress and state legislatures in regulating
such matters as commerce as long as such judgment has a "rational
basis," left it as an open question

               "whether prejudice against discrete and insular
                minorities may be a special condition, which tends
                seriously to curtail the operation of those political
                processes ordinarily to be relied upon to protect
                minorities, and which may call for a correspondingly
                more searching judicial inquiry."

In the field of capital punishment, the California Supreme Court most
admirably fulfilled its duty to undertake that "more searching
judicial inquiry" in _People v. Anderson_ (1972) 6 Cal.3d 628, a
decision in which, as discussed near the beginning of Section 2 above,
Chief Justice Wright and five other Members of the Court most
logically and persuasively found the death penalty to be "cruel or
unusual punishment" under the California Constitution.

Following the salutary principles of _Anderson_, the legislators and
voters of California had open a number of alternatives available in
imposing for some or all first degree murders a penalty greater than
the existing sanction of life imprisonment with parole eligibility
after a minimum term of 7 years. One such possibility is suggested by
the present state of California law: a term of 25 years to life for
first degree murder, raised to a mandatory sentence of LWOP if one or
more special circumstances are found.

Most tragically, rather than operating within the wise and just
framework of _Anderson_, a majority of the voters proceeded to
overturn it as best they could through Proposition 17, a measure
seriously interfering with the ability of the California Supreme Court
zealously to protect our inestimable rights.

From this perspective, any system for the proportionality review of
individual death sentences, no matter how carefully and
conscientiously applied, must serve as a partial, piecemeal, and
immensely more expensive substitute for the straightforward wisdom of
_Anderson_: any death sentence imposed in California is an excessive,
and therefore disproportionate or "cruel or unusual," punishment.

It must nevertheless be emphasized that a death penalty system without
such review will be significantly more cruel and inequitable than one
with it; but to speak of "the fair administration of the death
penalty" is to speak of an oxymoron or self-contradiction -- unless
the standard of review is exacting enough to result in a total
moratorium on executions followed by abolition, in which case it
merely provides a more circuitous course to the safe harbor reached
directly and economically by _Anderson_.

The concept of "proportionality review" may actually be used to denote
two somewhat different approaches for reviewing a death sentence in an
appellate court, both of which are essential in seeking the least
unjust result. In "comparative proportionality review," a court seeks
to compare a death sentence in a given capital case with the penalties
imposed by juries and trial judges in similar cases: either death or
LWOP, if we look to the universe of cases where one or more special
circumstances have been found to be true.

In a somewhat different but related method, an appellate engages in
what will here be termed "appropriateness review," reweighing for
itself the balance of aggravating and mitigating factors in a given
case, and evaluating how a sentence of either LWOP or death may
satisfy applicable purposes of punishment such as retribution or
denunciation of the crime; deterrence of other potential offenders;
incapacitation of the convicted offender from doing further harm; and
rehabitation, albeit in a lifelong custodial setting.

Two vital considerations today would make both forms of appellate
review imperative if the death penalty were to be retained at all. The
first is the frequent gap, noted by Bradford in 1793 and by many
jurists since, between the written criminal law and the community
values applied in practice by jurors who are called upon to judge of
the lives and liberties of their fellow citizens. The second is the
law's solemn mandate, recognized first by custom and tradition, and
since 1976 as a constitutional command under the federal Eighth
Amendment, that the life or death decision in capital cases be a fully
individualized and informed one.

Let us consider first the imperative of individualization. In the case
of _People v. Morse_ (1964) 60 Cal.2d 631, 637, the Court spoke words
which proved to be prophetic of later constitutional developments in
the United States Supreme Court:

                 "The jury decides whether the individual should be
                  permitted to live upon the basis of a complete and
                  careful analysis of that person as a human composite
                  of emotional, psychological, and genetic factors. 
                  The jury looks at the individual as a whole being
                  and decides if he is fit to live."

In _Woodson v. North Carolina_ (1976) 428 U.S. 280, 304, as already
noted in Section 2 above, the High Court rejected as unconstitutional
the mandatory imposition of capital punishment under statutes which
precluded a consideration of "compassionate or mitigating factors
stemming from the diverse frailties of humankind." Such statutes
treated those capitally convicted

                  "not as uniquely individual human beings, but as
                   members of a faceless, undifferentiated mass to be
                   subjected to the blind infliction of the penalty of
                   death," _Woodson_, 428 U.S. at 304.

In the decision two years later of _Lockett v. Ohio_ (1978) 438 U.S. 
586, 604, the Court amplified this principle of individualization to
require that a jury or trial judge deciding the penalty in a capital
case 

                  "not be precluded from considering, as a mitigating
                   factor, any aspect of a defendant's character or
                   record and of the circumstances of the offense that
                   the defendant proffers as the basis for a sentence
                   less than death."

What is here termed "appropriateness review" calls for an appellate
court to retrace the steps of the jury or trial judge, carefully
itself weighing aggravating and mitigating factors and considering any
circumstances which might call for sparing the defendant's life. In
fact, the California Supreme Court has been known to engage in this
kind of review -- although, sadly, as a mostly academic exercise,
since it was the doctrine of the Court that it had no power to reduce
an unwise but legally error-free death sentence to life imprisonment.

Interestingly, two cases exemplifying such appropriateness review were
decided before _Morse_ and _Woodson_, and indeed antedate the
procedure of a separate penalty trial for capital cases which
California was to adopt in July of 1957, so that a jury which had
already found a defendant guilty of first degree murder or another
offense subject to a punishment of either life imprisonment or death
could focus squarely on the aggravating and mitigating circumstances,
and on details regarding the personal history of the defendant often
inadmissible in a trial of guilt. Rather, both of these cases were
tried under the earlier "unitary" system where, after a usual trial
focused mainly on issues of guilt or innocence, the jury returned a
single verdict declaring whether the defendant was guilty as charged
of first degree murder -- and, if so, the penalty should be death or
life imprisonment.

In _People v. Danielly_ (1949) 33 Cal.2d 364, the defendant Ewell Lee
Danielly shot and killed his former wife and in the same incident
attempted to kill one of her friends, Ms. Elva Sams, who was also shot
but survived. As the Court explained, Danielly had served in the
United States Navy, participated in the Second World War, and suffered
wounds "from an anti-personnel bomb" in 1944, id. at 381-382. In the
aftermath, he was diagnosed with "battle fatigue," showing symptoms
which would in more recent decades suggest the condition known as
Post-Traumatic Stress Disorder or PTSD. In the majority opinion by
Justice Schauer, four justices rejected defendant's claim that he
should have been permitted to present evidence that his psychological
condition precluded the premeditation and deliberation required for
first degree murder -- but nevertheless commented on the issue of his
death sentence.

                  "That by the standards of law the defendant has not
                   been rendered insane and that he is still legally
                   accountable for his actions seems reasonably
                   certain. But that he is a victim of war in the
                   sense that his original emotional stability and
                   ability to cope with the vicissitudes and demands
                   of living in normal society have been to some
                   extent impaired seems also reasonably certain. 
                   Under such circumstances, regardless of what
                   compassion might suggest, we are bound by the law
                   of this state to affirm the judgment of conviction;
                   that law does not vest in us the power of
                   commutation of sentence. Only in the governor is
                   that power reposed." Id. at 383.  

Such an exercise was not wholly academic however, because it could be
read as a discreet but tangible hint to the Governor that clemency
might be well advised. The dissenting views of three justices that
reversible error in fact occurred in excluding the defendant's
proposed mental defense would further signal a cautious Governor that
a commutation to life imprisonment was in order.

In _People v. Brust_ (1957) 47 Cal.2d 776, 780, the prisoner Oscar
Hugo Brust "fatally shot his wife, Mildred Brust, and his stepson,
Curtis Johnson, aged 16, and wounded his stepson, Kay Marie Johnson,
aged 14. The shootings were the culmination of long-continued domestic
difficulties."

After recounting the circumstances of the crime and finding the trial
free of prejudicial legal error, the Court found revealed in the
record "a tragic story of antagonism flaming from the tinder of
emotional immaturity." Noting that the crime had grown out of the
"cumulative" effect of domestic altercations, Justice Schauer, again
writing for the majority, commented on Brust's previous good
character. "Until that fateful night of crime defendant apparently had
been a law-abiding and industrious member of society, well-regarded in
the community where he worked and lived." Id. at 791.

Interestingly, Justice Schaeur then presented what we might term a
detailed appropriateness review of the death penalty with a focus on
the purposes of punishment, id. at 791-792:

                  "In a case such as the present one, it is difficult
                   to understand upon what theory the jury could have
                   based its selection of the death penalty other than
                   the view that defendant's crimes were so
                   disproportionate to his reasons therefor that he
                   should receive a penalty equal to the fate which he
                   inflicted on his estranged wife and stepson. The
                   theory that others will be deterred from like
                   crimes and that society will thus be protected
                   seems to have little practical application to
                   killings arising out of domestic difficulties of
                   the sort depicted by the record here. When a person
                   such as defendant (with inadequate spiritual
                   resources) has determined that the law-provided
                   method for solving his difficulties (the divorce
                   proceeding) is inadequate for his purpose, it seems
                   that he would usually be unconcerned with the
                   effect of his killings upon society or particular
                   other persons or himself. For example, defendant
                   here exposed his own 5-year-old son to a scene of
                   carnage without hesitation although he expressed
                   concern and love for the boy. And it does not
                   appear likely that the death penalty is necessary
                   for future protection of society against the killer
                   here, for the probability of recurrence to the
                   individual of a set of circumstances such as those
                   which caused defendant to kill appears extremely
                   remote.

Such an analysis was not merely academic, for the Court suggested that
it might be useful in guiding future juries weighing the question of
life or death, id. at 792:

                  "Not only do we mention the foregoing factors as
                   reasonable explanation of the selection of the
                   extreme penalty by the jury here; also we mention
                   the various generally accepted purposes of
                   punishment as matters of which the jury might
                   appropriately be advised in connection with their
                   selection of penalty for first degree murder."

However, as in _Danielly_, the Court finds itself bound to the
doctrine that it has no power to reduce a death sentence to life
imprisonment, and in the absence of prejudicial legal error is
likewise unable to grant other relief:

                  "While at least some of us may doubt that this
                   defendant exemplifies the type of criminal who
                   should be put to death for his crimes, we find in
                   the record no legal basis for concluding that the
                   proceedings in the trial court were invalid or that
                   there was prejudicial error which caused a
                   miscarriage of justice." Id. at 792.

This type of appropriateness review focuses mainly on the facts of the
case at hand, although it implicitly draws upon the perspective which
seasoned jurists can bring to it based on their experience in hearing
or reviewing many murder cases and other criminal matters. Especially
vital is a keen appreciation of the many forms of mental illness or
impairment falling short of legal insanity which nevertheless militate
against the irrevocable penalty of death.

Ironically, the separate penalty trial instituted by the California
Legislature in 1957 may have served not only to focus the Court yet
more profoundly on the issues of the life or death decision, as in
_Morse_, but to reinforce the traditional doctrine that the justices
were powerless to reduce an inappropriate but "legally correct" death
sentence to the alternative penalty of life imprisonment. Instead, the
justices tended to be strict in scrutinizing the penalty trial for any
error which might have influenced the outcome, reversing and ordering
a new penalty trial rather than exercising the forbidden prerogative
of itself imposing a life sentence and thus more economically arriving
at a result with legal finality.

This appellate inhibition, whatever its merits in that era, becomes
much more dubious when transferred to the different constitutional
terrain obtaining after the Eighth Amendment decisions in cases such
as _Gregg v. Georgia_ (1976) 428 U.S. 153. These cases not only
mandate the restriction of eligibilty for the death penalty to
narrowly defined categories of murder (e.g. as defined by California's
special circumstances), and the use of carefully informed and
individualized discretion in choosing between life and death for
defendants within this narrow net, but some kind of meaningful
statewide appellate review to guard against excessive or arbitrary
sentences of death.

Basic appropriateness review as discussed above, if diligently and
sensitively applied, would have prevented, for example, the execution
of Manuel Pina ("Manny") Babbitt on 4 May 1999, a tragedy which might
be described as California's judicial Chernobyl, since it represents a
catastrophic system-wide failure on the part of the prosecution, trial
court, state and federal appellate courts, and Governor to consider
overwhelming evidence of mental illness as a mitigating factor. This
catastrophic failure was in tragic contrast to the humane judgment and
high professionalism of the Sacramento police officers who joined
together with William or "Bill" Babbitt, the defendant's brother, in
arranging for Manny's peaceful arrest.

After discovering items in his brother's possession which could be
linked to the recent murder of Leah Schendel, a 78-year-old woman who
died in her apartment after an intruder brutally beat her, causing a
heart attack (her injuries might otherwise not have proven fatal),
Bill Babbitt acted as a courageous citizen by calling the police to
seek help for Manny and to protect other potential victims of his
violent acts. The police happily were able to make the arrest without
incident, and explained that Manny "wouldn't go to the gas chamber or
anything like that," although whether he was detained in a medical or
correctional setting would have to depend on the courts. This is, of
course, precisely the kind of community-police cooperation that
California needs to prevent needless homicides, clear outstanding
cases, and lay the foundations for a safer society.

Like Ewell Lee Danielly, Manuel Pina Babbitt was a combat veteran
suffering from some degree of PTSD in the aftermath of his war
experiences -- which for Babbitt included the terrible 1968 siege of
Khe Sanh in Vietnam, in the course of which he suffered head trauma,
having sustained an earlier head injury in a bicycle accident at the
age of 12 when he has hit by a car and hospitalized for a severe
concussion. While in Vietnam, he also had a history of dissociative
episodes.

After his return, he deteriorated and became involved in criminal
activity in Massachusetts, eventually being convicted for burglary in
1972 and two armed robberies in 1973, resulting in a commitment to
Bridgewater State Hospital for the Criminally Insane. There he was
diagnosed as showing "Schizophrenic Reaction, Paranoid Type," with
tendencies toward "self-destruction" as manifested in several suicide
attempts.

This history of mental disturbance and criminality led ultimately to
the tragic and violent death of Leah Schendel on 18 December 1980, and
a similar assault the next evening on Mavis W., another Sacramento
resident who fortunately survived her injuries.

From a diligent prosecutor's perspective, assuming that despite
Babbitt's known history he was sane and responsible at the time of his
crimes, the killing of Leah Schendel in the course of the burglary of
her apartment and robbery of her property (including the item that led
his brother to call the police) would constitute first degree murder
with the special circumstances of robbery-murder and burglary-murder.
Even if we assume that Babbitt did not specifically intend her death,
the great bodily injury intentionally inflicted would meet the
standard of culpability suggested in Section 2.1 above on the
felony-murder special circumstance.

Thus a prosecutor, although taking into account some suggestions by
the arresting police that Manny Babbitt might receive a shorter term
of years in either a prison or mental institution of some sort, could
have concluded that justice and the public safety demanded the sterner
penalty of LWOP for first degree murder with special circumstances.
This penalty, although most severe, would have fulfilled the most
important assurance of the police that Babbitt would not "go to the
gas chamber or anything like that," recognizing the abundant
psychological mitigation and also the heroism that Babbitt had showed
at Khe Sanh, while at the same time providing dramatic retributive
justice for the victims and their families, and decisively
incapaciting him from further wrongdoing while recognizing his
rehabilitative potential in a highly supervisored environment.

At Babbitt's trial, as at Danielly's, the defense zealously sought to
advance a theory of diminished capacity which would, if not establish
the perpetrator's legal insanity, at least negate some of the elements
of intent required in order to find the accused guilty as charged. It
was suggested that Babbitt may actually have acted in some kind of
dissociative state going to the issue of intent, but the jury returned
a verdict of first degree murder with special circumstances; there was
also a separate sanity proceeding in which he was found to have been
legally accountable for his acts.

As the Court noted in _People v. Babbitt_ (1988) 45 Cal.3d 660, 700,
certain remarks of the prosecution on the issues of guilt and sanity
"approached misconduct," and could be judges as "skirting the edge of
propriety" -- but not to the point of clearly unprofessional conduct
or prejudicial error.

In a sane and reasonably humane system of justice, the logical result
based on this severe but legally correct verdict of first degree
murder with special circumstances would then follow as a matter of
course: LWOP. The prosecutor could have brought about this result by
charging Babbitt with the applicable special circumstances but
declining to seek the death penalty. The trial jury could have
returned a penalty verdict of LWOP. The trial judge, showing a due
appreciation for the mitigating factors adduced at the trial, although
incompletely as latter investigation revealed, could have modified a
jury death verdict to LWOP upon a motion for new trial.

However, once a sentence of death had been imposed at the trial level,
the California Supreme Court could have averted an egregiously
improper execution by the simple expedient of appropriateness review:
weighing and reweighing the aggravating and mitigating factors, and
finding a reduction of the sentence to LWOP the equitably mandated
result under the values of _Morse_, _Gregg_, _Woodson_, and _Lockett_.

It must be emphasized that this basic type of appropriateness review
does not require any comprehensive database of California special
circumstances cases, or intricate comparative method -- although such
an approach would also have a vital role to play in appellate review,
as explained below. Rather, all that is demanded is that the Court
independently examine the aggravating and mitigating circumstances
revealed by the trial record, or brought to light through other
sources on collateral review; and be in a position assertively and
decisively to act by reducing a death sentence to LWOP where the
interests of equitable justice require.

The failure for this process to take place in the _Babbitt_ case can
only be called an example of virtual constitutional nonfeasance, at
least from a perspective which holds that mitigating factors must not
merely be formally "considered," but must make a difference in the
actual result. The _Babbitt_ Court was itself, one might say, the
victim of systemic and electoral duress. In 1972, Proposition 17 had
opened a juridical Pandora's box of evils by overruling the Court's
just decision in _Anderson_. The results of the 1986 election, in
which three justices had been denied continued tenure, reinforced the
message that too assertively exercising critical and independent
judgment in death penalty matters would be seen as a fault rather than
a high virtue.

We do not need to explore the more intricate art of comparative review
in order to see that any diligent and sensitive review of death
sentences has a logical conclusion. As _Woodson_ teaches us, in
capital penalty decisions we are confronted with "uniquely individual
human beings." From the initial realization that _some_ of these human
beings, however serious their crimes, will present sufficient
mitigation to justify LWOP rather than death, we can make our review
of each defendant's unique circumstances more and more comprehensive,
empathetic, and insightful -- until we discover that _any and all_ of
these human beings present such factors, although more obviously in
some cases than in others.

Thus just as a mathematical function approaches a limit, so
appropriateness review approaches a logical conclusion: LWOP as the
ultimate constitutional sanction of the law, as _Anderson_ correctly
proclaimed. 

Let us now consider comparative proportionality review. Here we are
interested in comparing not only the possible divergences of capital
penalty determination as influenced by race, gender, socioeconomic or
class status, and geographical patterns within the state, but the
"evolving standards of decency" as reflected by juries and trial
judges in applying the law to actual human beings convicted of capital
offenses.

As the first crude step in proportionality review, we examine the
narrow universe of cases where death sentences have been imposed at
the trial level. How does the case at bar compare as to special
circumstances or other aggravating factors with the spectrum of other
cases -- and also as to any reported mitigating factors, which may be
only very partially reflected on the record? For example, one might
note the rarity of death sentences where a killing in a "robbery gone
bad" is the only special circumstance[37], or likewise where the only
such circumstance is that the murder was an intentional killing "by
means of lying in wait," see _People v. Combs_ (2004) 34 Cal.4th 821,
869 (Justice Kennard concurring):

                  "I first expressed my concerns about the
                   lying-in-wait special circumstance in _People v. 
                   Ceja_ [(1993) 4 Cal.4th 1134]. In over 150 death
                   penalty cases decided since then, we have seen none
                   in which lying in wait was the only special
                   circumstance found true by the jury. This may well
                   reflect a view that lying in wait should not be the
                   sole basis for imposing the death penalty."

Suppose that, on the basis of Justice Kennard's observation, we wish
to review a death sentence which might constitute the exception to
this general pattern: _People v. Edwards_ (1991) 54 Cal.3d 787, 804,
where lying in wait was the only special circumstance found; see also
id. at 850 (Justice Mosk's dissent). While the rarity of death
sentences in California based on this special circumstance alone might
point to possible excessiveness, we could clarify statewide practice
further by searching for cases involving this sole special
circumstance which resulted in sentences of LWOP. One might search the
available decisions of each District Court of Appeal for such cases,
or query trial judges who might recall having tried first degree
murders falling in this category.

In fact, this case involved the killing by Thomas Francis Edwards of
Vanessa Iberi, age 12, and the attempted murder of her friend Kelly
Cartier, age 12, both of whom were shot in the head by defendant with
a .22 caliber pistol from a truck while they were "walking to a picnic
lunch from a campsite in the Blue Jay campground in Orange County."
_Edwards_, id. at 804. The evidence supported the theory that Edwards
followed the two victims in his truck until they reached a maximally
isolated area, called out "Girls" to gain their attention, and then
immediately shot Vanessa between the eyes, killing her. Because Kelly
had more time to react, the following shot which was aimed at her head
grazed her forehead, causing an epidural hematoma or "accumulation of
blood beneath her skull," id. at 805, but fortunately sparing her
life.

Although the defendant was not physically concealed to the two girls
immediately before or during the shooting, as would have been in true
in the most familiar type of "lying-in-wait" murder such as an ambush,
the majority followed recent precedents in California law that this
special circumstance can nevertheless be present if there is an
element of "concealment of purpose," plus a period of "watchful
waiting" which concludes with an attack on an unsuspecting victim from
"a position of advantage." Here Edwards had his period of watchful
waiting when he followed his walking victims in his truck to the most
isolated area (where witnesses would be least likely), and concealed
his purpose when he stopped his truck and called out "Girls" --
causing them to look in his direction, and thus placing himself in a
"position of advantage" to shoot these "unsuspecting victims" in the
head, given his skilled marksmanship. _Edwards_, id. at 821-826.

As the Court well summed up: "A senseless, random, but premeditated,
killing supports a verdict of first degree murder." Id. at 814.
Further, it is readily comprehensible why a prosecutor would allege
the special circumstance of lying in wait and seek LWOP. The random
killing of one stranger and attempted murder of another, both
12-year-old girls, in a public place, not only met the requirements of
the special circumstance as interpreted by the Court, but could be
considered a more serious crime than a typical first degree murder
(punished by a term of 25 years to life) because of the calculated
attack on the two girls, "who should have had their entire lives ahead
of them," id. at 141.

However, defendant in this case received the death penalty after the
third penalty trial in his case: the inability of the first penalty
jury to agree, and the willingness of the trial judge before this
third penalty phase to suggest a plea to LWOP (albeit evidently
because of doubts as to the scope of the lying-in-wait special
circumstances in cases without physical concealment), might indicate
some doubt in the community as to the proper penalty. 

The defense suggested that the crime may have been related to
"depression over defendant's recent divorce," _Edwards_, id. at 806,
but there seems to have been no exploration of any other psychological
factors which might have contributed to this episode of lethal
violence against two young girls who were walking to a picnic. The
Court observed that the motive was indeed "elusive" for what was
"apparently a random killing" -- while remarking that, of course, no
motive need be shown in order to convict the defendant as charged. 

Given the large number of comparably serious murders with one or
special circumstances which result in a penalty of LWOP, some of them
chronicled in decisions of the state District Courts of Appeal (many
unfortunately unpublished, although available on the Internet), one
might wisely conclude that the death sentence in this case must be
reduced to LWOP in order to serve the interests of equal justice.

It must be emphasized that looking only at cases with death sentences
is effectively seeing only the tip of the iceberg: if one carefully
enough surveys the full range of cases receiving LWOP, a likely
conclusion is that any defendant receiving the death penalty will
present aggravating and mitigating factors comparable to other
defendants who are serving this alternative punishment, the greatest
that a civilized society may impose.

In practice, appellate courts practicing appropriateness review and
comparative proportionality review might find themselves reducing a
higher and higher percentage of death sentences reviewed to LWOP as
the process proceeded over a period of years. Sensitivity to
psychological mitigating factors would become more and more finely
tuned. Preventing the execution of mentally ill offenders, see Amnesty
International, _United States: The execution of mentally ill
offenders_ (January 2006, AI Index AMR 51/003/2006), available at
<http://www.amnesty.ca/amnestynews/upload/AMR5100306.pdf>, would
become a top and active priority of the system.

The evolution of the law regarding the right to counsel in state
criminal cases under the Sixth and Fourteenth Amendments, as
interpreted by the United States Supreme Court, provides one possibly
analogous model. Thus in the highly controversial decision of _Betts
v. Brady_ (1942) 316 U.S. 455, the Court held that normally an
indigent state prisoner in a noncapital felony trial would not be
entitled to appointed counsel. Over the following two decades,
however, the Court was increasingly likely to find "special
circumstances" in a given case requiring the appointment of counsel
under the Due Process Clause of the Fourteenth Amendment. Finally, in
the landmark case _Gideon v. Wainwright_ (1963) 372 U.S. 335, the
constitutional right to appointment of counsel was held applicable to
all indigent felony defendants, thus overruling _Betts v. Brady_.

The most serious problems with such an incremental and piecemeal
process, apart from the judicial resources it would intensively
consume, are the risks of some executions taking place which in the
not-too-distant future will quite predictably be viewed as "cruel
and/or unusual"; and the psychological harm done by Death Row
confinement to prisoners and their families, as well as to the
families of murder victims who are trapped in a prolonged process. If
a firm moratorium on executions with a view to abolition is in place
throughout the process, then at least the most intolerable of these
harms may be alleviated.

However, the best approach is to recognize that as far as the death
penalty in California is concerned, our Supreme Court has already
completed the proportionality review to end all proportionality
reviews: the results of that process were most ably announced on 18
February 1972 in _People v. Anderson_, supra. A moratorium on
executions for a period of at least five years, followed by a voter
initiative to abolish the death penalty, would ratify the humane
wisdom of _Anderson_ while ending the danger of wrongful executions in
California and bringing our state into compliance with elementary
human rights standards recognized by much of the civilized world.


---------------------
4. Executive Clemency
---------------------

         "If I pardon Dodd, I shall have murdered the Perreaus."
            -- Attributed to King George III of England, 1777[38]

         "An execution in a republic is like a human sacrifice
          in religion."
                                       -- Benjamin Rush, 1792[39]

         "It was an awesome, ultimate power over the lives of
          others that no person or government should have."

               -- Former Governor Edmund G. "Pat" Brown, 1990[40]

In 1777, while weighing clemency for the Reverend William Dodd, who
had been convicted and sentenced to death for a forgery committed in a
desperate attempt to manage the debts incurred by a fashionable
lifestyle, King George III reportedly either himself observed or was
advised that if he were to spare the wayward clergyperson's life, then
Robert and Daniel Perreau would have been "murdered" -- twin brothers
who had been executed for the same offense the previous year. Neither
the convicting jury's recommendation of mercy, nor the influence of
popular petitions for clemency coupled with the intervention of
Dr. Samuel Johnson, availed to stop Dr. Dodd's hanging.[41]

The same year that the Perreau brothers were hanged, 1776, saw an
important landmark in penology in the state of Pennsylvania: the
adoption of a Constitution directing the Legislature, when it should
convene, "to reform the penal laws -- to make punishments less
sanguinary and, in some cases, more proportioned to the offences."[42]
By 1786, the Legislature had acted on this mandate by substituting a
punishment of hard labor for the death penalty for serious felonies
such as robbery and burglary; and by 1794, following William
Bradford's advice, it had restricted capital punishment to the newly
defined crime of murder in the first degree.[43]

In the Philadelphia of 1787 that would soon see the Constitutional
Convention creating a new federal government, Dr. Benjamin Rush, a
signer of the Declaration of Independence, gave a presentation at the
home of Benjamin Franklin calling for the abolition of the death
penalty, other corporal punishments, and public humiliations for
convicted criminals. He noted that a reasoned and proportionate scheme
of criminal law based on the imprisonment of serious offenders would
have the advantage of making executive clemency less necessary, and
punishment more certain:

                  "It has long been a desideratum in government, that
                   there should exist in it no pardoning power, since
                   the certainty of punishments operates so much more
                   than its severity, or infamy, in preventing
                   crimes. But where punishments are excessive in
                   degree, or infamous from being public, a pardoning
                   power is absolutely necessary. Remove their
                   severity and public infamy, and a pardoning power
                   ceases to be necessary in a code of criminal
                   jurisprudence."[44]

Although much has changed over the past 220 years or so, Rush's
perception that the pardoning power may properly play a radically more
circumscribed role in a criminal justice system without the death
penalty than in one retaining it has been championed by current
scholars also.

Thus Dan Markel, in his article notably entitled "Against Mercy," 88
Minn. L. Rev. 1421 (2004), suggests that the presence of unreviewable
sources of mercy in an otherwise sound and attractive scheme of
criminal justice may compromise the principle of "equal liberty under
law."

However, in the very different setting of the death penalty, Markel
asserts the compelling case for executive clemency in "State, Be Not
Proud: A Retributivist Defense of the Commutation of Death Row and the
Abolition of the Death Penalty," 44 Harvard Civil Rights-Civil
Liberties L. Rev. 407 (2005), available on the Internet at
<http://law.bepress.com/espresso/eps/372>, defending not only the
granting of clemency in individual cases, but the "blanket
commutation" of a state's entire Death Row population, as happened in
Illinois in 2003 at the conclusion of Governor George Ryan's term in
office.

Here we shall first consider the very modest and highly circumscribed
role that executive clemency has played in the past three decades
and be expected to play in the future when those committing the most
serious and aggravated murders are sentenced to LWOP, society's
maximum sanction in the system here proposed. Then we shall consider
some of the serious problems and dilemmas which arise when the death
penalty enters into the equation: problems which not only place
intolerable strains on those human beings most intimately involved in
the clemency decision, but which undermine the integrity of the
criminal justice system generally, both in reality and as perceived by
the public at large.


-----------------------------------------------
4.1. Executive clemency in an LWOP-based system
-----------------------------------------------

While Markel focuses his presentation in "State, Be Not Pround" mainly
on the death penalty rather than the proper scope of executive
clemency for prisoners sentenced to LWOP, his argument offers one
possible basis for concluding that the latter sentence is consistent
with the concept of retributive justice which he advocates, and so
might be commuted only in unusually compelling cases, with the
prisoner's actual innocence as an obvious example. It should be
emphasized that although Markel focuses on retribution as in his view
the best primary purpose of punishment in a democratic society, LWOP
can also serve such purposes often advanced for the death penalty as
deterrence and incapacitation of offenders -- as well as the vital
purpose of rehabitation, which execution excludes.

Since the term "retribution" can mean very different things to
different people, Markel refers to his understanding of this term as
the "Confrontational Concept of Retribution," or CCR for short.[45]
Here the "confrontational" aspect of the concept refers to a
confrontation -- or, one might say, encounter -- in which the state
holds an offender responsible for his or her criminal behavior and
asserts the sovereignty of the law by imposing an appropriate
punishment, but does so while maintaining the "modest posture"
appropriate to a democracy, respecting the humanity of the offender
and providing an opportunity for her or him to live in accord with the
very values which require an act of punishing.[46]

Markel's CCR reflects three principal themes of a democratic
society. The first is "moral responsibility for unlawful behavior."
Unlike mere revenge or retaliation, which might be directed at an
innocent or even randomly chosen person, retribution is directed only
at the guilty, To those convicted of crime, punishment "communicates
the ideal of moral accountability for unlawful actions."[47]

In other words, the kind of confrontation involved in the CCR requires
a moral dialogue with the offender: "Effective communication to the
offender is of fundamental importance to the practice of retribution."
It is vital that the offender "understand on what grounds" he or she
"is being punished." The state seeks through its punishment "to
communicate the value of moral responsibility," and to encourage the
offender in the future to internalize and act according to this value,
even though in practice an offender may or may not always be
"persuaded" to assent.[48] 

This communicative process with the offender as the central focus goes
hand in hand with an "expressive" message directed also to the wider
community: "the norm that our interests and our actions matter to the
state." By enforcing the criminal law, the state can send this message
even though it cannot achieve "complete enforcement and punishment"
every time the law is violated. From another perspective, this
"expressive" function of punishment might sound very much like
deterrence; but what Markel evidently wishes to emphasize is the moral
message that criminals will be treated as responsible moral agents at
once held accountable for their actions, and punished in a way which
respects their human dignity and potential to become better citizens.

Closely allied with moral accountability in Markel's concept of
retribution is the theme of "equal liberty under law." By committing a
crime which infringes on the liberties of others, the criminal is
effectively "rebelling" against the social compact, and declaring
"superiority" to others who remain within its bounds -- both any
specific victims who are harmed, and other citizens in general. 
Punishment serves to "reduce the plausibility" of such "false claims
of superiority. The state's coercive measures communicate the norm of
equal liberty under law and they are directed to the person most in
need of hearing it: the offender."[49]

The third principal theme of Markel's CCR is "democratic self-defense"
against the criminal's rebellion: the legal system, which represents
the society at large rather than merely some group or community within
it, takes responsibility for addressing the breach of equal liberty
under law. In other words, criminal sanctions are imposed by society
at large, rather than by some private or nongovernmental agency, or by
victims acting on their own authority.[50] 

Here I might add that it is quite possible to accept the main points
of Markel's analysis while favoring the active participation of
various community organizations in the corrections process, and also
championing a more victim-oriented system where "restorative justice"
encourages reconciliation between victim and offender. However, his
ideal of "democratic self-defense" requires that such policies be
implemented within a system where crime is recognized as a _public_
wrong, with the state itself taking responsibility for a process of
punishment which may constructively engage various other actors.[51]

Having explained these three primary elements of moral accountability,
equal liberty under law, and democratic self-defense, Markel presents
two vital cautions regarding the practice of retributive criminal
justice. The first is that the system must take care "to punish only
the guilty, and not the innocent."[52]

The second is that retributive punishment must focus not only on the
"defeat" of the offender's claim or message of superiority to
organized society and any specific victims of the offense, but also
"the potential internalization of correct values" that society strives
to affirm. This is necessary in order to advance rather than undermine
"the interest we have in recognizing each other as "dignity-bearing
moral agents capable of responsible decision making."[53]

                "In order to militate against the corrosive effect
                 punishment may have upon the offender and the public,
                 it is crucial that the denial of the offender's
                 message is explained and carried out in a way that is
                 conducive to the internalization of the values that
                 the retributive encounter is meant to uphold. The
                 encounter need not guarantee the internalization of
                 these values, but it cannot proceed without the
                 desire for that result, and the state ought not take
                 measures that would preclude it. Otherwise,
                 retribution would operate mechanistically, a practice
                 that devalues both the punished and the punishing
                 state. Consequently, the state must have as its hope
                 not just the denial of the offender's claim of
                 superiority, but also his transformation."[54]

In other words, "retributive punishment communicates certain
fundamental norms."

                 "And the communication is itself insufficient if the
                  confrontational encounter fails to leave a chance
                  for the offender to internalize and live by the
                  ideals animating retribution (even if in a prison)
                  during or after the encounter."[55]

An interesting implication of this line of argument is that valid
retributive punishment in a democratic society -- as opposed to
"revenge"[56] -- must invite and provide opportunities for the
offender's moral reformation. While Markel notes that the term
"rehabilitation" has often been associated with a perspective "viewing
criminality as the product of sickness rather than of free choice,"
the term "moral rehabilitation" might nicely, like the older
"reformation," convey the idea of an offender accepting responsibility
for her or his actions and striving to live in accord with prosocial
and democratic values.[57]

Given that California's prison system is part of the Department of
Corrections and Rehabilitation, we might ask how Markel's concept of
retribution could be harmonized with a traditional rehabilitative
approach focusing on such services as psychological treatment,
education, and vocational training. Although Markel suggests that such
an approach, by deemphasizing the element of "free choice" in criminal
behavior, may undermine the offender's right to be held accountable
"as a dignity-bearing morally autonomous agent,"[58] we might well
view the availability of rehabilitative options and services as a
means by which offenders can take moral responsibility and improve
their ability to live in accordance with prosocial values.

Such an analysis fits neatly with the name of the California system.
By imposing an appropriate retributive punishment, the state imposes a
"correction" for the offender's crime, at once correcting the
offender's false message of superiority to the victim and organized
society at large, and providing an opportunity for her or his
reformation or moral rehabilitation. At the same time, it offers
constructive options and services -- psychological therapy,
educational opportunities, art programs, vocational training -- to
which the offender is entitled not specifically as a criminal, but
rather as a citizen. Surely an enlightened society would not require
that someone commit a crime in order to obtain mental health services,
take classes, or enter a vocational program! Indeed, the easy
availability of such options for all citizens would likely be seen as
a wise "ounce of prevention" against crime as well as a policy
otherwise promoting the general welfare.

Moreover, one can emphasize the theme of moral accountability for
criminals while recognizing that many offenders found legally sane may
suffer from various forms of mental illness or emotional disturbance
which can significantly impair or distort the process of free choice,
although not to the point of negating a person's responsibility. A
good system can, so to speak, "see with both eyes" in such cases, at
once treating the offender with dignity as a free moral agent who
requires "correction" and an opportunity for reformation; and
recognizing that he or she also manifests some of "the diverse
frailties of humankind," _Woodson v. North Carolina_, supra, 428
U.S. 280, 304 (see Section 3 above), and should be offered options and
supports to address these issues and thus enhance her or his ability
to exercise moral autonomy in a prosocial way -- in other words,
"rehabilitation" in a traditional sense of therapy or training.[59]

However we view the merits of these traditional rehabilitative
services, Markel's wording of one vital requirement for the
"encounter" of retributive justice is especially relevant to the
punishment of California's most blameworthy murderers: "a chance for
the offender to internalize and live by the ideals animating
retribution (even if in a prison) during or after the encounter."[60]

In other words, true retribution requires that we respect the moral
autonomy of the offender by holding him or her accountable through a
proportionate punishment, which in the worst cases of murder means
permanent exclusion from society at large; yet, at the same time,
albeit in the lifelong custodial setting mandated by society's
ultimate constitutional sanction of LWOP, we afford the offender an
opportunity to "live by the ideals" of a democratic society which
murder most drastically violates.

Markel, following in part the analysis of Jeremy Waldron[61], focuses
on the question of "just deserts" for a convicted murderer in a way
which may be especially attractive for a modern democracy. In such a
setting, murder may be considered especially heinous "because it
involves the intentional and radical disruption of an 'autonomous
life.'"[62] As Markel continues, quoting Waldron:

                 "Very well, then let us radically disrupt the moral
                  autonomy of the offender."[63]

In the most serious cases of murder, LWOP does this by permanently
revoking the offender's right to live in free society -- but, at the
same time, respects her or his human dignity and ongoing potential for
reformation, albeit in a prison setting.

Viewed more broadly, LWOP in such cases of first degree murder with
special circumstances and other comparably heinous crimes fulfills all
of the traditional purposes of punishment. The offender, who has
radically and permanently deprived his or her victim of all earthly
freedom, in turn is permanently deprived of the right to live in free
society, thus communicating both to the offender and the democratic
community at large that human life is indeed sacred and inviolable.
At the same time, this retributive punishment allows space and time
for the goals of reformation or moral rehabilitation on the offender's
part which may rightly be seen as integral to the retributive ideal
itself; and for rehabilitative services in the traditional sense
(e.g. psychological counselling, education, and vocational training).

Additionally, LWOP is a severe punishment which may have some
deterrent effect on at least some people who might be inclined to
commit heinous homicides -- although, as with capital punishment, the
extent of such deterrence may be somewhat problematic. Intuitively, we
might guess that the attempts of many special circumstances offenders
to avoid detection could indicate that they are aware of the possible
consequences of their acts, and strive more or less rationally to
avoid these consequences -- thus suggesting that a severe sanction
such as LWOP coupled with a high degree of swiftness and certainty of
arrest and punishment could have an appreciable deterrent effect. Such
an effect may not apply in every case: the "murder-suicide" phenomenon
all too familiar in recent mass shootings at our schools and colleges,
and the self-destructive tendencies of certain sociopaths, may
indicate that forces other than rational calculation are influencing
the tragic and deadly course of conduct, although the offender may
still be viewed as legally sane. It remains reasonable for society,
however, to act upon the truism that just about any significant
punishment is likely to deter at least some of the people some of the
time -- and that LWOP may do so with some degree of success in the
field of aggravated murder, while remaining within the retributive
bounds of human dignity.

Given the especially dangerous nature of the crime of murder,
incapacitation also becomes a vital purpose of punishment in these
cases, and especially in some involving known patterns of recidivist
violence. Here lifelong imprisonment, at whatever level of security may
be required to protect other prisoners and correctional staff, meets
this objective to a very high degree. It should be emphasized, of
course, that incapacitation is not the only factor making possible safe
and secure prison environments. Many "lifers," serving their sentences
with or without the possibility of parole, become model prisoners
seeing themselves as having a vested stake in a peaceful setting; in
such a setting there will be real empathy between prisoners and guards,
who in a real sense are "doing time" together. Further, a well-run
institution will have incentives for good behavior which may deter
rational prisoners from acts of violence. Where these prosocial values
and incentives fail, however, a modern prison system has sanctions up
to and including "supermax" confinement to incapacitate a prisoner from
harming others. Also, recent technological developments as well as the
wisdom of experience help prison administrators and staff to keep
abreast of the not inconsiderable ingenuity exhibited by prisoners
seeking to escape.

In addition to retribution, rehabilitation, deterrence, and
incapacitation, we have also the goal of restitution or restoration
for families of murder victims. While family members of murder victims
must be accorded the basic right to participate or not in any process
of reconciliation based on their own free and informed choice, some of
these family members have found the process both rewarding and
liberating. Whether or not such a process takes place, an offender
serving a sentence of LWOP has an opportunity for atonement and
restoration, making restitution to society at large.

Given society's very strong interest in swift, certain, and consistent
punishment for the worst murders, one could reasonably argue that
executive clemency should be invoked only rarely in cases where a
defendant has been sentenced to LWOP. Obviously, not only commutation
to a lesser sentence but a full pardon would be appropriate if a
defendant is shown to be innocent, and it happens that no legal remedy
is available. Otherwise, as California's practical experience since
1977, when LWOP was enacted (SB 155) as a mandatory minimum penalty
for special circumstances murders, shows, a commutation might be
granted only as the extraordinary exception proving the rule that
normally "life imprisonment without possibility of parole" means
precisely what it says.

Despite this practical experience over a period of three decades, one
psychological barrier to abolition of the death penalty may be the
fear that a single decisionmaker -- the Governor -- may unreviewably
compromise the finality of LWOP by granting unwarranted pardons or
commutations. The California Constitution, in Article V, Section 8(a), 
currently provides that the Governor "may not grant a pardon or
commutation to a person twice convicted of a felony except on
recommendation of the Supreme Court, 4 judges concurring." The
Legislature and voters of California might amend this provision to
read as follows:

                 The Governor may not grant a pardon or commutation
                 to a person twice convicted of a felony, or under
                 a sentence of life imprisonment without the
                 possibility of parole, except on recommendation
                 of the Supreme Court, 4 judges concurring.

Historically, one might add, the requirement that the Governor act
only with the concurrence of the Supreme Court sometimes resulted
in dramatic miscarriages of justice in death penalty cases. 
Possibly the most famous example is the case of Caryl Chessman,
executed on 2 May 1960 not for any homicidal offense, but for
two 1948 robberies in which the victims, Regina Johnson and Mary Alice
Meza, were forcibly transported a short distance from the vehicles
where they were accosted to another vehicle, where they were sexually
assaulted and then released. At this time, this movement of the
victims was sufficient to constitute aggravated kidnapping under Penal
Code Section 209, sometimes known as the "Little Lindbergh Law," which
fixed the penalty at death or LWOP.

Given Chessman's unwise decision to represent himself at trial, his
long record of serious offenses, and his less than ingratiating
attitude toward law enforcement officers and the court, it is not
surprising that the jury not only convicted him as charged but imposed
the death penalty. Over the next 12 years, while he fought for his
life on Death Row, many Californians and concerned individuals and
organizations throughout the world pointed to the obviously
disproportionate nature of this sentence in seeking clemency.

Governor Pat Brown, in his memoirs, confirms that it was the
requirement for Supreme Court concurrence that ultimately led him
reluctantly to permit Chessman's execution when he was unable either
to win legislative approval for a moratorium on capital punishment, or
to gain the approval of four Justices for a commutation. When he
"consulted privately" with the Chief Justice in early 1960, he learned
that the vote would still be "four to three" -- against Chessman, with
one Justice deferring retirement specifically in order to block
clemency for this prisoner.[64] Governor Brown, under his view at the
time of the constitutional responsibilities of his office, felt that
he had no basis to prevent the law from taking its course -- although,
as he later reflected in his memoirs, "I should have found a way to
spare Chessman's life."[65]

Under such a system with the death penalty, the Legislature and voters
might have wisely amended the Constitution to provide that the
requirement of Supreme Court concurrence for granting a commutation to
an offender "twice convicted of a felony" would not apply in one
special case: the commuting of a death sentence to LWOP, a penalty
where the offender remains permanently excluded from society at
large.

Happily, the excruciating moral dilemmas of life and death that
confronted Governor Brown become academic in a modern criminal justice
system without the death penalty. However, Governor Brown's memoirs
also provide a cautionary tale about the possible dangers of commuting
a sentence of LWOP to one with opportunities for parole. Edward Simon
Wein, known as "Eddie," had been convicted in 1957 for a series of
sexual assaults against victims in the Los Angeles area perpetrated
when he visited their residences to answer classified ads placed in
newspapers: hence his coverage in the press as "the Want Ad Rapist."

Since some of these attacks involved moving his women victims from
room to room, the prosecution successfully (as with Chessman)
convicted him of aggravated kidnapping under Penal Code Section 209,
with the jury again choosing death rather than LWOP. The Governor,
free to act since Wein had not previously been "twice convicted of a
felony," commuted Wein's sentence to LWOP, the alternative statutory
penalty for a violation of Section 209. So far, so good.[66]

In December of 1966, however, shortly before leaving office at the end
of the year, Governor Brown granted Wein the further clemency of
commuting his sentence of LWOP to life imprisonment with the
possibility of parole, following recommendations from the Warden of
San Quentin Prison and psychiatrists at that institution.[67]

Wein was released in 1974 -- and, much to the former Governor's
horror, by November of 1975 had been rearrested for crimes similar to
his earlier offenses, except for one critical detail. His earlier
crimes had included robbery, sexual assault, and, as California law
was then interpreted, also kidnapping. The new charges included
another crime: murder. Dorothy George, a resident of Westchester in
the Los Angeles area, had been stabbed, strangled, and drowned in the
bathtub of her home.[68] Another woman in the nearby community of
Palms had been "sexually attacked, bound, beaten, and stabbed" -- and
would likely have been killed, except for noise from a neighbor which
induced the perpetrator to flee the scene.[69]

Both these victims had placed ads on supermarket bulletin boards,
which led police to draw a connection with Wein's crimes of 1955-1956,
and apprehend this recently paroled suspect. In 1976, Wein was
convicted and sentenced to "three successive life sentences," with a
recommendation from the trial judge that he never be released.[70]

From this tragic story, Governor Brown drew a sombre moral:

                 "Totally removing a governor's power to change a
                  sentence from life without possibility of parole
                  sounds like a denial of his right to be humane and
                  compassionate, but I would suggest that it is more
                  humane and compassionate than forcing him to
                  constantly decide on the life or death of an
                  individual. If we could guarantee that nobody who
                  committed a capital crime would ever get out of
                  prison, there would be much less demand for the
                  death penalty. And all the energy and expense of
                  deciding whether an Eddie Wein should live or die
                  could instead be used to look more deeply and
                  carefully into the broader issue of whether he
                  indeed should ever be released back into society."[71]

While "totally removing" the Governor's power to commute LWOP to a
lesser sentence might be seen as too inflexible, requiring the
concurrence of a majority of the Justices on the California Supreme
Court would both in appearance and reality reinforce a policy that
this is an extraordinary decision to be made with due consideration
for the protection of society.

To sum up, in a criminal justice system with LWOP as the maximum
penalty, executive clemency might indeed take a rather narrow and
circumscribed role. In such a system, the normal course of the law
already respects the inviolability of each offender's life, and in
keeping with a proper understanding of retributive justice, affords
the offender an opportunity to live according to the very moral values
which punishment is meant to communicate -- even if in a lifelong
custodial setting. 

Since commuting a sentence of LWOP can involve very substantial risks
for innocent citizens, as Governor Brown's experience with the Wein
case illustrates, this clemency power calls for great circumspection,
and might well be made subject to a requirement for the concurrence of
a majority of California Supreme Court justices. The policy prevailing
in our state since 1977 that the penalty of LWOP should be modified
only in extraordinary cases would be further underscored by such a
constitutional amendment.


--------------------------------------------------------------
4.2. Executive clemency in capital cases: A deadly nonfeasance
--------------------------------------------------------------

As Governor Brown makes clear in his memoirs, a modern system of
corrections and rehabilitation has no place for the death penalty; and
such a system removes an enormous and indeed intolerable burden from
the shoulders of a chief executive bearing so many other
responsibilities for the people of California. However, this
Governor's experience is also instructive in showing how a
decisionmaker, confronted with the dilemmas of executive clemency in
capital cases, sought to give due consideration to individual
mitigation and also considerations of equal justice such as the
correction of geographic disparities.[72]

By his own reckoning, Governor Brown granted clemency in 23 capital
cases, and permitted 36 prisoners to be executed, thus commuting not
quite 40% of the death sentences that came before him during his two
terms in office.[73] 

Reading his memoirs, we are especially moved by his careful
consideration of mitigating factors such as mental illness or
emotional disturbance. In that era (1959-1966), there was not a body
of federal constitutional law mandating the consideration of such
factors short of legal insanity before a death sentence could be
imposed; indeed this mandate would come almost a decade after he left
office, in _Gregg v. Georgia_ and its companion cases (2 July 1976),
see Section 2 above. Thus Governor Brown often found himself
considering alternative standards of legal insanity while seeking
intuitively to do justice in each unique case.[74]

In California during the last two decades or so, a very different
state of affairs has prevailed: although there is an established body
of law requiring the consideration of mental illness and other
mitigating factors before the death penalty may be imposed, governors
seem to invoke such factors mostly to dismiss them. From 1992 to the
present, 13 Death Row prisoners have been executed while none have had
their sentences commuted.

A very helpful compendium of information on the history of clemency
proceedings in California, and the currently applicable procedures, is
provided in a report for this Commission by Professors Linda E. Carter
and Mary-Beth Moylan, _Clemency in Capital Cases_, available at
<http://www.ccfaj.org/documents/reports/dp/expert/Clemency%20Report.pdf>.
This study includes the texts of all capital clemency decisions since
1992, beginning with the case of Robert Alton Harris, who was executed
on April 21 of that year.

What these decisions reveal, when approached from the perspective here
advocated, is a tragically entrenched institutional culture of
nonfeasance when it comes to the individualized and independent review
of death sentences. This culture appears to transcend any specific
administration or political party, rather reflecting certain trends in
thinking and policy which serve not only to vitiate the potential
safeguards of the clemency process but to promote unhelpful and
distorted perceptions of the criminal justice system as a whole.

Before examining some of the main themes and problems of the present
system, we might begin by considering how a capital clemency system
could function in California to minimize the risk of unjust
executions, an experiment somewhat like our consideration of appellate 
proportionality review in Section 3. While, as Professors Carter and
Moylan discuss at some length in their study, there are few legal
constraints on the clemency process or the Governor's exercise of
discretion, we may nevertheless usefully ask how the system _should_
function.

From this perspective, once a defendant has been convicted of a
capital offense such as first degree murder with special
circumstances, the Governor is typically the last in a series of
several layers of decisionmaking as to whether the appropriate penalty
is death or LWOP. First, assuming that the prosecution chooses to
proceed to a penalty trial rather than agreeing to LWOP, a jury hears
evidence on the question of penalty and returns a verdict for life or
death. Then, if the verdict is death, the trial judge considers the
relevant evidence and either grants or denies a modification of that
verdict to LWOP as part of a motion for new trial. If the judge denies
such a modification and sentences the prisoner to death, then there is
an automatic appeal to the California Supreme Court, which considers
relevant constitutional and other legal issues relating to either the
conviction or the penalty. If this court affirms the death sentence,
then a series of appeals to federal and state courts typically
follows. Finally, at a point where these appeals have been exhausted
and the prisoner's execution seems close at hand, the clemency process
takes place.[75]

These layers of review to a very considerable extent address similar
issues: thus evidence of mitigating mental illness could well be
relevant at each stage of the process. While these multiple layers of
review might suggest a duplication of effort, this redundancy is a
great potential strength of the system: only if different
decisionmakers, applying different methodologies and styles of
decision, agree that death is the appropriate penalty can the
irrevocable act of execution take place.

Thus the penalty jury plays a unique role as "the conscience of the
community," a representative body of the defendant's peers, as
explained by the United States Supreme Court in the landmark case of
_Witherspoon v. Illinois_ (1968) 391 U.S. 510, 519. As the California
Supreme Court powerfully stated in _People v. Morse_ (Section 3
above), the jury "looks at the individual as a whole being and decides
if he is fit to live," 60 Cal.2d 631, 637. In making this awesome
decision, the jury is guided by the instructions of the trial judge,
which define a reasoned process for approaching what remains a
profoundly moral decision about the value of a human life.

As the California Court made clear in _People v. Moore_ (1960) 53
Cal.2d 451, the trial judge also has a special role to play in
reviewing a jury's verdict of death and considering whether the weight
of the evidence calls for its reduction to a penalty of life
imprisonment -- since 1977, more specifically LWOP. Like the jury, the
trial judge has personally observed the trial and had the opportunity
to evaluate at first hand the demeanor of the defendant and any
witnesses. Unlike the jury, the judge has the benefit of legal
training, and also likely a considerable experience with criminal
cases which lends a different perspective to the question of how
"aggravated" or "mitigated" a given capital crime or defendant might
be judged in context.

As discussed in Section 3, the California Supreme Court in its
automatic review of death sentences on direct appeal should focus
carefully both on the individualized appropriateness of the sentence
in view of aggravating and mitigating circumstances; and on a
comparative proportionality review of the case with, at a minimum,
other special circumstances cases where either death or LWOP was
imposed. Of course, the Court will also comprehensively review for
legal errors both the trial of guilt and the penalty phase. If the
Court affirms the death sentence, a direct appeal is available to the
United States Supreme Court, which however has free discretion as to
whether or not to hear the case by granting a writ of certiorari if
four or more justices so agree.

Ideally, collateral state and federal review would provide further
opportunities to review aggravation and mitigation, taking into
account both evidence not adduced at trial because of factors such as
ineffective assistance of counsel (all too common in capital penalty
trials), or because of new developments: for example, the defendant's
good behavior and positive contributions to the community while on
Death Row. Sadly, trends over the last two decades have severely
restricted the scope of federal collateral review, although the large
numbers of reversals which have occurred even under these increasingly
adverse conditions to capital defendants signals the great risk for
lethal miscarriages of justice in the absence of such diligent review.

The jury uniquely consists of laypeople, representing the commonsense
judgement of the defendant's community. The trial judge and appellate
judges, in contrast, reach their decisions by applying legal rules,
and are largely bound by certain precedents and patterns -- although
their decisionmaking process will itself subtly or even dramatically
reshape some of these precedents and patterns. A state of federal
court interpreting questions of constitutional law is rather like a
referee at a sporting event entrusted not only to call individual
plays, but if necessary to reinterpret or even modify the rulebook --
but always within the proper spirit of the game, and with a constant
eye to the interest of all parties in reasonably predictable and
consistent rulings.

The role of the Governor, often the last human being standing between
a capital defendant and the death chamber, is somewhat different from
that of either a juror or a judge. The clemency decision is not
subject to any legal rules or precedents, but invites the Governor to
consider evidence either from the various judicial proceedings which
have taken place, or from other sources, in seeking after a sense of
equitable justice and mercy. Like a juror or judge, the diligent
Governor will ponder the many aggravating and mitigating factors in
the case, and also look at the prisoner "as a whole being," to quote
the famous words of _Morse_. Like an appellate court, she or he will
consider matters of comparative proportionality -- the possible or
demonstrated disparities of race, gender, class, and geography.

As the chief executive of California, the Governor may also consider
human aspects of the decision such as the impact on affected family
members -- and on the administration of justice. The case of Manuel or
"Manny" Babbitt, discussed in Section 3, provides a special
illustration of this point.

Babbitt, it will be recalled, was a veteran of the battle of Khe Sanh
in Vietnam who subsequently had a history of repeated criminal
activity and serious mental illness. His brother Bill Babbitt,
finding a suspicious personal item in Manny's possession which he
feared might have belonged to the victim of a recent murder, Leah
Schendel, contacted the police and helped them to bring about his
brother's peaceful arrest. The police gave assuranaces that Manny
wouldn't get "the gas chamber," but wisely and accurately explained
that the legal system would have to decide whether he would be
spending time in a correctional or medical institution.

Although the police had added a comment that "you're not gonna spend
the rest of your life in jail, I'm sure...." the District Attorney
after examining all the evidence decided that the case called for
prosecution as a first degree murder with special circumstances. Here
one might rightly observe that it is prosecutors, not the arresting
officers, who are responsible for charging decisions. Assuming that
Babbitt was legally sane at the time of the murder, it would certainly
qualify as a killing in the course of the felonies of burglary and
robbery. Additionally, following the criteria presented in Section 2.1
above, Babbitt's brutal beating of the 78-year-old victim would
indubitably rise to the level of "conscious and wanton indifference to
human life." Thus a conscientious prosecutor, while fully appreciating
the various mitigating factors in the case, might well decide to try
the crime as a special circumstances case and seek LWOP.

Confronted with Babbitt's actual sentence of death, a diligent
governor unfettered by the institutional culture which has shackled
the hands of executive justice and mercy for the last two decades
would consider not only the compelling evidence of mitigating mental
illness which might have produced the proper result of LWOP at almost
any stage of the process, but also the impact on Bill Babbitt, the
defendant's brother, and on California citizens who may in the future
have the painful duty of facilitating the arrest of a family member or
friend on homicide charges.

In a civilized society, fulfilling such a duty is ultimately acting in
the best interests not only of potential future victims and of society
at large, but also of the suspected offender. When Bill Babbitt
made his courageous decision to call the police, he was saving not
only the lives of future victims, but also the life of his brother,
acting to minimize the possibility that either Manny or the officers
who would sooner or later arrest him would be injured or killed in the
process. A civilized criminal justice system could and would assure
Bill Babbitt that his brother, once safely arrested, would indeed
get help -- even if in the most severely retributive setting of an
LWOP sentence. As we have seen, a critical distinction between just
retribution and raw revenge is that the former actively invites and
provides opportunities for the offender's moral rehabilitation --
which, for a mentally ill offender such as Manny Babbitt, would imply
appropriate psychiatric supports and treatment also.

The Governor would readily recognize that letting Manny Babbitt be
executed could foreseeably have a strong deterrent effect -- upon
Californians in Bill Babbitt's situation who have reason to suspect
that a relative or friend has been involved in homicidal violence. It
is absolutely vital to the public safety that such a conscientious
citizen know that the State of California wishes to save the lives of
potential future victims, arresting officers, and the accused alike by
safely subduing the offender and then, if a criminal conviction
follows, imposing some adequate but humane and life-affirming
punishment. By making Bill Babbitt effectively an accessory before
the fact in the judicial homicide of his own brother, the state
imposed a cruel or unusual punishment on an exemplary citizen, and set
an "example" gravely endangering the general public safety.

Strictly speaking, Bill Babbitt's role in his brother's arrest would
not come within the usual legal category of a "mitigating factor,"
since it involves not any aspect of Manny Babbitt's crimes or of his
own personal character and history -- which, of course, also present
compelling mitigation. Rather, it is the kind of circumstance
especially within the Governor's ken, both in doing compassionate
justice to a family member who courageously assisted the authorities,
and in ensuring that future family members and friends in such a
situation will have every incentive to offer similar cooperation
without hesitation or reservation.

In Babbitt's case, a Governor would not need to conduct a comparative
proportionality review in order to conclude that a commutation to LWOP
was appropriate -- but might do so in order to use the case as an
opportunity better to appreciate patterns of law enforcement
throughout the state. Finding special circumstances cases of similar
or greater seriousness where the jury or trial judge chose LWOP would
lend an additional perspective not required to reach the right result
for Manny Babbitt, but useful for future clemency decisions.

Quite apart from the special factor of his brother's role in his
arrest, Manny Babbitt would have likely received a commutation to LWOP
on account of his mental illness and heroic service in Vietnam under
the clemency policies of a Governor such as Pat Brown. The case of
Erwin "Machine Gun" Walker, a veteran of the Second World War who upon
his return committed a series of crimes culminating in the wounding of
two police officers and then the killing of a third, California
Highway Patrol officer Loren Roosevelt, provides an interesting
parallel.[76]

Walker, like Babbitt, took part in an especially bloody theater of
battle: Leyte. After Japanese soldiers had killed many of his
comrades, he is reported by others in his unit to have singlehandedly
run off into the jungle in pursuit of the attackers, returning after
three or four days in a disoriented mental condition[77] perhaps
similar to that of the dissociative states experienced by Manny
Babbitt in Vietnam. After discharge, tragically, both psychological
casualties of war (Babbitt was also physically wounded, and received a
Purple Heart) proceeded in turn violently to victimize others.

In addition to a shootout in which two police officers were seriously
wounded, Walker's crimes included burglaries in which he would use
nitroglycerine to blow safes. He had also managed while still on
active duty to acquire a cache of weapons including "six machine guns,
twelve .45 automatic pistols, six .38 revolvers, holsters, ammunition,
and clips...."[78] His ultimate purpose, he explained, was "to invent
an electronic radar gun that would disintegrate metal into powder,
thus destroying all weapons of war."[79]

On 5 June 1946, Officer Roosevelt was fatally wounded when he saw a
man "acting suspiciously," stopped him, and requested identification;
"Walker pulled out a .45 automatic," Roosevelt "reached for his own
gun," and Walker shot him twice, then running away and abandoning a
car "later found to contain a loaded Thompson submachine gun, a bag of
burglar's tools, nitroglycerine, a blasting fuse and percussion caps."
Roosevelt "lived for several hours while fellow officers donated
blood," and was able to give a "detailed description" of his assailant
that eventually led to Walker's arrest.[80]

While at that time _any_ first degree murder was subject to either the
death penalty or life imprisonment as decided by the jury or judge
trying the case, Walker's crime would, of course, qualify today as a
special circumstances crime, since he intentionally killed a peace
officer who was "engaged in the course of the performance of his or
her duties" (California Penal Code Section 190.2(a)(7)). Governor
Brown, although an opponent of the death penalty, recalled in his
memoirs his general disinclination to grant clemency to a "convicted
cop killer."[81]

Babbitt's case, likewise, presented factors which to a conscientious
prosecutor would make it an especially serious one. Not only was the
killing of Leah Schendel committed in the course of a burglary and
robbery, and possibly also an attempted sexual assault; because of her
advanced age, she was an especially vulnerable victim to Babbitt's
brutal attack, as was also his victim Mavis W., who was fortunate
enough to survive.

With Walker, of course, the potentially aggravating factors would
include not only his shooting of three police officers, one fatally,
but also his cache of lethal weapons and use of explosives. Sentenced
to death by a trial judge after he waived a jury trial and made an
unsuccessful plea of insanity, Walker was spared in 1949 only because
of his deteriorating mental condition on Death Row, which brought him
to the point of legal insanity, thus requiring that the execution be
indefinitely postponed. After 11 years of psychiatric treatment, he
requested a new sanity hearing, thus placing his life in renewed
jeopardy. When found sane, he became a dilemma placed squarely in the
lap of the Governor. Should this execution of a convicted killer of a
peace officer now go ahead, or was it time to temper justice with
mercy?[82]

Cecil Poole, Brown's clemency secretary, emphasized in his
recommendation to the Governor that Walker's offenses themselves were
no less serious because of his mitigating history of mental illness:

                 "I believe this man should be commuted to life
                  imprisonment. He can still be extremely dangerous,
                  and based on that point of view as well as the
                  enormity of his criminal past I cannot now consider
                  the propriety of subjecting him to normal parole
                  procedures. I therefore recommend that he be
                  commuted without possibility of parole."[83]

A Governor commuting Manny Babbitt's death sentence to LWOP, likewise,
might place emphasis on the "enormity" of Babbitt's violent assault on
an innocent 78-year-old woman in the sanctuary of her own dwelling. It
is possible to appreciate the tragic ravages which military combat
sometimes visits on the human mind without in any way minimizing the
harm visited in turn by Erwin Walker and Babbitt on their victims such
as Officer Loren Roosevelt and Leah Schendel and their families and
friends. Seeing with both eyes, we must fully recognize the humanity
of offenders and victims alike.

Just as Governor Brown granted clemency to Walker and 22 other
prisoners while permitting 36 executions to take place during his two
terms of office, so a Governor might have commuted Babbitt's sentence
to LWOP while declining to intervene in many or even most other
capital cases. The brutal combat experiences endured by Walker and
Babbitt alike, and the fact that Walker was found to be insane during
his stay on Death Row (albeit not at the time of his crimes) while
Babbitt spent time in an institution for the criminally insane before
coming to California and committing his offenses, evidence a degree of
mitigation which makes these cases stand out.

For other Death Row prisoners, the degree of mitigation may not be so
obvious; or there may be aggravating factors such as murder for hire;
a history of previous murders; or murder by torture. Nevertheless, as
Governor Brown's clemency secretary Arthur Alarcon -- now a senior
Judge of the United States Court of Appeals for the Ninth Circuit --
remarked to him in discussing another case: "People who kill in ways
that make a jury sentence them to death are not normal people, by and
large."[84]

The case they were confronting was that of Elizabeth Ann Duncan, also
known in the press as "Ma Duncan," who had hired two young men with
extensive criminal records, Luis Moya and Augustine Baldonado, to kill
her daughter-in-law Olga Duncan. The decisions of the California
Supreme Court in these cases helpfully supplement the Governor's own
account: _People v. Duncan_ (1960) 53 Cal.2d 803; _People v. Moya_
(1960) 53 Cal.2d 819; and _People v. Baldonado_ (1960) 53 Cal.2d 824.

Duncan's motive was evidently a kind of pathological attachment to her
adult son Frank Duncan, an attorney. She was hospitalized in 1957 as a
result of taking an overdose of sleeping pills, which she explained to
her doctor she had taken out of fear that Frank would "leave her,"
_People v. Duncan_, 53 Cal.2d at 806. Visiting his mother, Frank met a
nurse, Olga Kupcyzk, and the two started dating -- much to
Ms. Duncan's disapproval. She ordered Kupcyzk to stop seeing her son,
and warned, "You'll never marry my son, I'll kill you first."[85]

When the two did secretly marry in 1958, Duncan sought to hire someone
to kill her new daughter-in-law. Initially unsuccessful in finding a
killer, she was eventually led to Moya and Baldonado. They agreed on a
plan to kidnap Olga Duncan, take her to Mexico, and kill her there. As
planned, the two hired assassins on 17 November 1958 went to Olga
Duncan's apartment in Santa Barbara, told her that her husband had
been injured and was in their car, and, as she was hurrying to the car
to help Frank, hit her over the head with a pistol. She was seven
months pregnant.[86]

Her resistance was so great that, in attempting to beat her into
unconsciousness with the gun, her assailants broke it, rendering it
useless as a murder weapon. Having trouble with the vehicle they were
using, Moya and Baldonado abandoned the original plan of driving to
Mexico, and instead, stopped at a location near Ojai in Ventura
County. There, being unable to use the pistol, they took turns
strangling Olga Duncan until they no longer detected a pulse, and
buried her body there. An autopsy indicated that the cause of death
could have been "head wounds, strangulation, or suffocation such as
would be produced by being buried alive," _Duncan_, 53 Cal.2d at 810.

Certainly it is understandable, given the brutality of the killing
itself and the fact of a murder for hire -- the latter a special
circumstance under the 1977 and 1978 statutes in California, as well
as under the invalid 1973 statute providing for a mandatory death
penalty -- that the District Attorney would choose to seek the death
penalty for all three defendants. In the summer of 1962, when their
scheduled executions on August 8 approached, the Govenor found himself
confronted with some special moral dilemmas in weighing the
intertwined fates of the three Death Row prisoners.

Clearly the impelling motive for killing Olga Duncan was different for
Elizabeth Duncan, who obviously acted from some kind of pathological
jealousy growing out of a bizarre attachment to her adult son, than
for Luis Moya or Augustine Baldonado, who evidently took on the "job"
as a commercial proposition, presumably without any such emotional
involvement. Thus for the defendant Duncan herself, one might say that
the murder was in a certain sense a "crime of passion" -- albeit also
a carefully premeditated one carried out by means of hired killers.

For Governor Brown, Elizabeth Duncan's case was a difficult one both
because of his reluctance to preside over the execution of a woman --
who would be only the fourth to be executed in California during the
20th century -- and because, from an intuitive or commonsense
perspective, she certainly seemed "crazy."[87]

A report from Alarcon had suggested for Duncan a diagnosis of
"character behavior neurosis, which is relatively synonymous to a
sociopathic personality," or "dyssocial reaction."[88]  As a
psychiatrist had testified in the case of her codefendant Luis Moya, a
sociopath "profits neither from experience nor punishment," _Moya_, 53
Cal.2d 819, 822; as has been recognized in more recent decades also,
such a person seems unable either to internalize social norms or to
develop relationships with others based on genuine empathy. Violent
behaviors destructive both to others and to self may result.

Curiously, at least from the "clinical psychological standpoint"
reflected in the report from Alarcon to the Governor, a sociopathic
personality (also known as "psychopathic personality," and more
recently as "antisocial personality disorder") was not, strictly
speaking, considered a "mental illness."[89] This was a widespread
clinical viewpoint, still current today, despite the commonsense
conclusion that many defendants with such a diagnosis are indeed
suffering from an abnormality of mind, albeit short of legal
insanity. Thus Alarcon's description of Elizabeth Duncan:

                 "There is no question that Mrs. Duncan is a bizarre
                  woman with an unhealthy love for her son and
                  abnormal thought processes. However, every
                  psychiatrist who has examined her could find no
                  evidence of psychosis or mental illness in the legal
                  sense sufficient to justify a commutation or an act
                  of clemency in this matter."[90]

Governor Brown, meeting with Alarcon to discuss the case, asked, "So
you don't think the lady is crazy?"[91] His question might have led to
a closer consideration of the vital distinction between legal
insanity, which it was generally agreed the condition of a
psychopathic personality did not meet, and mitigation for the very
limited purpose of commuting a death sentence to life imprisonment
without possibility of parole.

In fact, the Royal Commission on Capital Punishment in Great Britain,
_Royal Commission on Capital Punishment 1949-1953: Report_ (London:
Her Majesty's Stationery Office, September 1953, Cmd. 8932), had
studied the question of insanity and other mental abormalities as they
related to criminal responsibility and the death penalty, with special
attention to the question of "Psychopathic personality," pp. 135-140,
Paragraphs 393-402. Id. at 401, the Commission concluded that although
psychopaths would likely continue to be deemed legally sane, "the
available evidence justifies the conclusion that in many cases the
responsiblity of psychopaths can properly be regarded as diminished,"
thus providing at a least substantial ground for executive clemency in
capital cases.

Was the Governor or his advisors aware of the Royal Commission's
advice as to psychopathic or sociopathic personality -- and, if not,
might this information have changed the Governor's decision, by
reinforcing his intuitive sense that something was "crazy" about
Elizabeth Duncan? 

Even with an awareness of this opinion from a prestigious source
calling for the recognition of sociopathy as an important mitigating
factor, he would have had to overcome two daunting barriers in order
to grant clemency to Duncan.

The first is explicitly stated in his memoirs: if he was to commute
Duncan's sentence and at the same time remain faithful to his
commitment to promote equal justice in the use of the death penalty in
California, he would also have to commute the sentences of Moya and
Baldonado. As Alarcon, one of whose responsibilities was to assist the
Governor in monitoring for and correcting geographic or other
disparities in the administration of capital punishment, succinctly
put it: "[Y]ou certainly can't commute her and let the other two die
-- it's all or nothing."[91]

As Governor Brown recognized:

                 "Arthur was right, of course, Elizabeth Duncan was as
                  guilty of the savage murder of Olga Duncan as Luis
                  Moya and Augustine Baldonado were -- even more, in
                  that she brought about the crime by hiring them to
                  commit it."[92]

Interestingly, had the Governor been ready to consider clemency for
all three defendants, he would have found some mitigating evidence for
Moya and Baldonado as well as Duncan. They, like her, had both been
diagnosed as sociopaths; Moya, originally from Texas, had additionally
been a user of narcotics "consistently since he was 11 years old,"
_Moya_, 53 Cal.2d 821-822; and Baldonado "since early adolescence,"
_Baldonado_, 53 Cal.2d 825.

A psychiatrist, Dr. Donald R. M. Harvey, testified that Moya was an
offender with a potential for future violence -- but also, that he
"had at least an average chance for rehabilitation," _Moya_, 53 Cal.2d
822-823. An open question was presented by Moya's interest in religion
starting shortly after his arrest: Dr. Harvey testified that the
defendant's religious conversion would be "a good start toward
rehabilitation," but that the time period since that conversion was of
yet "too short" to permit a judgment as to the "validity of his
conversion," id. at 822.
 
With Baldonado, the Governor might have taken note of a legal error:
after this defendant had presented testimony that those convicted of
first degree murder are generally "better parole risks than other
prisoners," the prosecution deftly on cross-examination elicited from
the witness, an officer of the California Adult Authority (the body
then responsible for decisions regarding the release of prisoners),
that Baldonado had been sentenced to a term of ten years on a previous
narcotics offense and then paroled in one year, _Baldonado_, 53 Cal.2d
at 825-826. The California Court, while holding this testimony to be
"improper" since "Moya's prior offense was not first degree murder,"
found that the error was evidently harnless, "since it does not seem
reasonably probable" that the penalty phase jury might otherwise have
returned a verdict of life imprisonment rather than death, id. at 826.

The Governor might have reasoned that while jurors in Baldonado's
case, and also Moya's, could have been concerned by the possibility of
parole for these offenders with their long criminal records and
psychological potential for future violence, he had the power to
render this issue moot by commuting their sentences -- and also
Duncan's -- to LWOP.

By doing so, the Governor would have avoided the spectacle of what was
described as a "triple execution" on 8 August 1962 by lethal gas, the
method adopted by the state to replace hanging in 1937. Since the gas
chamber could only accommodate two prisoners at a time, Duncan was
executed in the morning, while Moya and Baldonado were executed
together that same afternoon.

Commuting all three sentences to LWOP would have raised an immediate
issue: was not this a murder for hire, one of the calculated forms of
killing -- or "deliberate assassination," to borrow the language of
William Bradford in 1793 -- for which the death penalty was widely
considered most appropriate, if it was to be used at all, both as a
potential deterrent and as an outraged community's response to the
most heinous crimes? The fact that Olga Duncan was pregnant, the
brutality of her death by bludgeoning and strangulation, and the
possibility that she might have still been alive when buried by her
assailants, lent a special edge to this question.

If one replies that prisoners with mental abnormalities such as
sociopathy should not be executed even for such crimes, then the same
considerations of equal justice requiring commutations for Moya and
Baldonado as well as Duncan would apply to a very large proportion of
the Death Row population. As Alarcon had remarked to the Governor:
"People who kill in ways that make a jury sentence them to death are
not normal, by and large."[93]

We thus reach the same kind of conclusion for executive clemency as
for the appropriateness and comparative proportionality review of
death sentences on appeal (Section 3): as the system becomes more
sensitive to individualized mitigating factors, the number of
executions will approach zero. A moratorium on executions with a view
to abolition reaches the same conclusion far more economically, and
with far less of a human cost to those most intimately involved.

As the Governor noted, he had briefly had a certain indirect
connection with Elizabeth Duncan almost 20 years earlier when he had
decided to sell an apartment building he owed in San Francisco, and a
real estate broker had gotten a "ridiculously high" offer from her as
a purchaser; ultimately, she had been "unable to come up with the
money," and Brown (then the elected District Attorney there) found
another buyer at a "more realistic" price.[94]

Looking back, Governor Brown reflected: "Our past personal connection,
as fleeting and insubstantial as it was, did make me think about her
as more than just a convicted criminal."[95] He added:

                 "This was something I tried to do in every clemency
                  situation, to give the subject human dimensions
                  outside the parameters of his crime, but I wasn't
                  always successful."[96]

The Governor's ideal of a humanized and individualized decision was
thus similar to that articulated during his second term of office, in
1964, by the California Supreme Court in its _Morse_ decision calling
for a capital penalty jury to look at the defendant "as a whole
being," 60 Cal.2d 631, 637; and also by the United States Supreme
Court in 1976 in the _Woodson_ decision holding that capital
defendants are "uniquely individual human beings" who must
constitutionally be considered in these terms, 428 U.S. 280, 304 (on
these cases, see Section 3 above).

If this view of executive clemency had continued to prevail -- and the
death penalty had not been abolished outright or subjected to some
kind of formal or informal moratorium -- then we might expect that
California governors during the last two decades would have granted
commutations to LWOP for a high proportion of Death Row prisoners
facing execution, likely a majority and very possibly something
approaching a policy of blanket clemency.

Quite to the contrary, however, actual clemency policies during this
recent period have involved something amounting to the blanket
endorsement, rather than commutation, of death sentences for prisoners
approaching execution: beginning with the gassing of Robert Alton
Harris on 21 April 1992, there have over the past 16 years been 13
executions (two by lethal gass and 11 by lethal injection), and no
commutations to LWOP.

This situation leads to two phenomena with a corrosive effect serving
to erode and undermine public confidence in the administration of
criminal justice, and to engender avoidance injustices of the most
fatal kind. First, the rhetoric of recent gubernatorial clemency
decisions promotes an "illusion of impunity," in which the public is
led to perceive that offenders who have their death sentences commuted
to LWOP are somehow "not being held accountable for their actions." 

Secondly, whether under a more enlightened clemency policy such as
that prevailing under Governor Pat Brown, or the policy of virtual
nonfeasance in effect since 1992, a death penalty system resulting in
actual executions will inevitably result in "retrospective
miscarriages of justice" where a prisoner will be executed under a
state of the law which within a relatively few years will have changed
so as to preclude the execution of similarly situated defendants.


-------------------------------
4.2.1. The illusion of impunity
-------------------------------

While a Spanish proverb proclaims that there is no royal road to
learning, California clemency decisions over the past 16 years show
that there is a kind of gubernatorial expressway to the indiscriminate
execution of Death Row prisoners: the illusion of impunity, an element
of institutional culture which seems to transcend the tenure of any
specific Governor during this tragic period.

A typical example is provided by Governor Pete Wilson's decision
denying clemency to Robert Alton Harris:

                 "Petitioner Robert Alton Harris argues that the death
                  penalty should not be imposed on him because it
                  would be inappropriate to hold him accountable for
                  the murders of which he was convicted 14 years
                  ago."[97]

The Governor -- and his successors Gray Davis and Arnold
Schwarzenegger, one might duly note -- thus frames the issue of
clemency as whether Harris should be "held accountable" for the
murders of his teenage victims Michael Baker and John Mayeski; or,
presumably, _not_ held accountable, and spared all punishment.

To punish or not to punish: that, of course, was _not_ the question
before the Governor. Rather the question, properly defined, was
whether Harris, although properly convicted of first degree murder
with special circumstances and found legally sane, nevertheless
exhibited mitigating circumstances indicating that he might be
punished more appropriately by LWOP rather than death. 

The most forceful mitigating evidence in Harris's case involved two
closely related factors. As explained by the Governor:

                 "Experts contend that Harris has suffered organic
                  brain damage both as a result of his mother's abuse
                  of alcohol during pregnancy and as a result of
                  trauma inflicted by his parents, mostly by an
                  especially vicious father."[98]

For Governor Wilson, the seriousness of fetal alcohol syndrome was a
major policy concern, as he noted in this decision[99]; and Harris's
evidence of extreme childhood abuse was persuasive:

                 "The record now before me in the application for
                  clemency adequately demonstrates that Mr. Harris's
                  childhood was a living nightmare. He suffered
                  monstrous child abuse that would have a brutalizing
                  effect on him. The material is worthy of the earnest
                  and careful consideration that I have given to
                  it."[100]

However, as the Governor also credibly concluded, these mitigating
factors did not impair Harris's capacity to conform his conduct to the
law to the point where he might be deemed legally insane:

                 "But though victimized he may have been, Harris was
                  not deprived of the capacity to premeditate, to
                  plan or to understand the consequences of his
                  actions. His conduct must be the test of
                  petitioner's capacity to exercise personal
                  responsibility. And for the protection of its most
                  vulnerable members, society must hold accountable
                  and hold to a minimum level of personal
                  responsibility Robert Harris and all members of
                  society -- excepting only those who have been
                  clearly shown to lack the capacity to meet that
                  minimum level of responsibility."[101]

Under the kind of retributive justice sketched in Section 4.1, the
Governor's observation would be precisely correct: many prisoners,
although they may suffer some degree of mental impairment or emotional
disturbance, will nevertheless be found legally sane and held
"accountable" through some form of punishment which at once
communicates society's disapproval and invites the convicted defendant
to live more responsibly according to society's values -- even if in a
lifelong custodial setting. Commuting Harris's sentence to LWOP would
have sent precisely this message.

Instead, however, the Governor's decision seems to reason that once a
capital defendant is found to be "accountable" -- or, in other words,
legally sane -- the only way to affirm the defendant's legal
"responsibility" is an execution. It is as if LWOP were equivalent to
legal impunity, a gubernatorial verdict of "not guilty by reason of
insanity," as it were.

In discussing Harris's case, it is important to note that Harris was
not only much abused, but also in his adult life much abusing. In
1975, he had been convicted of manslaughter for the beating death of
James Wheeler: as this crime was presented at the penalty phase of
Harris's later capital murder trial, he had systematically beat
Wheeler to death "while mockingly claiming to teach his victim self
defense," _People v. Harris_ (1981) 28 Cal.3d 935, 946. 

Harris's capital offenses were the robbery, kidnapping, and murder of
Michael Baker and John Mayeski in order to obtain a car for a bank
robbery: the case was one of the first tried under the 1977 death
penalty statute (SB 155), a law whose rather narrow felony-murder
special circumstance provision avoided many of the issues and
complications often arising under the broader provision of the
1978 initiative adopted by California voters, Proposition 7.

Under the 1977 statute, the felony-murder special circumstance
required a "willful, deliberate, and premeditated" killing in which
the defendant personally participated, as well as the intent to commit
the underlying felony. Harris's crimes abundantly met this standard,
as long as one assumes that he was indeed legally sane, an assumption
we shall here agree with Governor Wilson was correct.

Having carefully planned the bank robbery with his brother Daniel,
Harris on 5 July 1978 went to the vicinity of the bank they intended
to target, San Diego Trust and Savings Bank, and spotted a car in
which Mayeski, 15, and Baker, 16, were "eating hamburgers," _Harris_,
28 Cal.3d at 943-944.

Taking control of the car at gunpoint, Robert Harris drove the two
boys to a location near a fire trail that he and his brother had
visited the previous day; Daniel Harris followed in the defendant's
car. The two vehicles were parked, and the victims instructed to walk
up the trial toward the top of a hill, Robert Harris explaining that
their car would be used in a bank robbery, but that "no one would be
hurt." Id. at 944.

As the two boys walked on, having agreed to wait for a time at the top
of the hill and give a misleading description of the Harris brothers
when eventually reporting their car stolen, Robert Harris shot Mayeski
in the back with a pistol, and then hunted down Baker, killing them
both with multiple rounds. After the murders, the Harris brothers ate
what was left of the two boys' hamburgers. That same day, as intended,
they robbed the bank -- and were swiftly arrested, id. at 944-945.

Governor Wilson was confronted by the brutal crimes of an egregiously
brutalized offender. Given the serious aggravating circumstances,
including the premeditated nature of the felony murders (as required
by the 1977 law), the harmlessness and defenselessness of the young
victims, and Harris's previous killing of James Wheeler which at the
time had been deemed manslaughter but according to later accounts
might more accurately have met the definition of some degree of
murder, to decide for clemency would not be an easy decision.

More specifically, young Mayeski and Baker were not killed in a
"robbery gone bad" where the perpetrator, however dubiously, planned
and carried out the crime with an assumption that "no one would get
hurt." This was not a story of a firearm which discharged accidentally
(see Section 2), or even of a robber who killed in an unplanned but
intentional fashion when meeting unexpected although perfectly lawful
resistance from a victim, or from a peace officer who happened upon
the scene.

Rather the two victims were killed in a deliberate and premeditated
manner for the evident purpose of preventing their testimony: what is
often termed, interestingly, the "execution-style" killing of a
witness.

One approach for the Governor might be to do what a penalty jury or
trial judge does under the 1977 or 1978 California statute: to weigh
aggravating and mitigating factors against each other, and so seek to
reach a moral judgment as to the appropriateness of clemency. While
this approach, in principle, might lead to a decision either for or
against clemency, it would be a radically different procedure than
simply deciding that the defendant was properly found "responsible"
for his acts, and should therefore be executed.

In Harris's case, one taking the facts as Governor Wilson found them
might reason that the brutality of the defendant's three homicides are
to some degree reflective of the brutality of his upbringing and also
the developmental harm to which fetal alcohol syndrome may have
contributed. Commuting his death sentence to LWOP would have held him
fully accountable, since either sentence is a statutorily sanctioned
penalty for first degree murder with special circumstances, while
acknowledging society's failure to protect Harris in his critical
years of development for unspeakable abuse.

From one viewpoint, then, the kind of clemency decision written in the
Harris case evidences a basic misunderstanding that reducing a Death
Row prisoner's sentence to LWOP is synonymous with holding that person
"unaccountable" for her or his actions, as if the death penalty were
the only "real" punishment that society can inflict for murder or
other serious crimes. Such a misunderstanding would be especially
remarkable given both the tradition of individualized clemency
decisions as exemplified and expounded upon so masterfully by Governor
Pat Brown, and the analogous principle of individualized discretion in
capital penalty trials recognized in California by the _Morse_ Court
in 1964 and constitutionalized by the United States Supreme Court in
_Woodson_ and other cases in 1976. Governor Wilson weighed the fate of
Robert Alton Harris a full 15 years after these latter cases.

From another viewpoint, however, "the illusion of impunity" may have
evolved in an institutional culture where prevailing public opinion
was perceived to militate strongly against any assertively independent
exercise of the Governor's clemency power in capital cases. A policy
comparable to that of Governor Brown in the period 1959-1966, let
alone a more generous one informed by intervening developments in the
law and psychiatry, might be seen as an act approaching political
suicide. 

In such a setting, defining the defendant's criminal "responsibility"
or "accountability" as the pivotal clemency issue would provide a
convenient intellectual shortcut to a result perceived by governors
and their advisors as politically inevitable. At the same time,
whether as an intended or unintended result, clemency decisions
written in this fashion tend to reinforce public perceptions that the
choice is between executing offenders in order to "hold them
accountable," or to subject them to a sanction such as LWOP which is
really not a "punishment" in the full sense -- that is, a sanction for
wrongdoing by which the offender is, precisely, treated as a morally
responsible agent (see Section 4.1).

It should be emphasized that governors following this kind of
"accountability" outlook nevertheless can and do thoroughly review the
facts of each capital case before them: the issue is not their
willingness to hear or indeed to consider and even agaonize over
evidence of mitigating circumstances, but their ability in such an
institutional culture to give it practical effect in the decision
reached. From a psychological perspective, a Governor self-constrained
by this outlook is an position somewhat analogous to that of a trial
judge under the Ohio death penalty statute found invalid in _Lockett
v. Ohio_, 438 U.S. 586 (see Section 3): he or she may _hear_ a full
range of mitigating circumstances, but is not adequately empowered to
act on those circumstances as a basis for a sentence of less than
death.

While the outlook that "holding accountable" and "executing" a Death
Row prisoner are largely interchangeable concepts, with the first
implying the second, may serve interests of political convenience,
governors internalize it quite sincerely. A striking example is
provided by Governor Gray Davis's decision to deny clemency to Manny
Babbitt, the Vietnam veteran whose case we addressed in Section 4.2.

According to an article in the _San Francisco Chronicle_ prompted by
the later case of Stanley "Tookie" Williams under our present Governor
Schwarzenegger, "30 minutes to sway governor on clemency: Williams'
lawyaers argue today that he's too valuable to kill," 8 December 2005,
p. A1, <http://www.sfgate.com/c/a/2005/12/08/MNGEKG4O0S1.DTL>,
former Governor Davis in a discussion with reporters at the unveiling
of his portrait in the State Capitol "said that he came close to
granting clemency for Manuel Babbitt, a Vietnam veteran who argued
that he was suffering from war-related mental health problems when he
killed a Sacramento woman."  

As the Governor explained:

                 "Then I said to myself: `If I grant clemency on that
                  basis, I'd have to say to anyone who was in a war
                  that you're not responsible for your actions when
                  you get back into society, and I was not prepared to
                  do that,'" said Davis, also a Vietnam veteran. (Id.)

In one sense, the Governor faced a dilemma somewhat different from
that of George III, who in 1777 reportedly reasoned that if he
followed public sentiment by granting clemency to Dr. Dodd, he would
have then murdered the brothers Robert and Daniel Perreau who had been
executed the previous year for the same offense of forgery, as
discussed at the beginning of Section 4. For Governor Davis, the
issues posed by Babbitt's case related not so much to consistency with
past decisions as to possible consequences for future ones.

However, it is striking that the Governor should feel that commuting
Babbitt's sentence from death to LWOP would be equivalent to saying
that "you're not responsible for your actions."

By treating this illusion of impunity as if it were reality, Governor
Davis removed the last potential safeguard against what would become
California's judicial Chernobyl: the execution of Manny Babbitt. The
catastrophic proportions of that tragedy can be expressed in no voice
more eloquent than that of Bill Babbitt, the defendant's brother:

                 "As a citizen trying to do the right thing and help
                  ensure public safety, I was betrayed by a false
                  promise. When I suspected that my brother might have
                  had something to do with the death of Leah Schendel,
                  I made the difficult decision to go to the police. 
                  They promised me that Manny would get the help he
                  needed, but instead he was executed. I had agonized
                  over what to do, and in the end I turned Manny in to
                  the police because I couldn't live with the risk
                  that someone else might become a victim of Manny's
                  war demons. I wanted to prevent another killing, not
                  cause one." [102]


-----------------------------------------
4.2.1.1. The case of Donald Jay Beardslee
-----------------------------------------

The same institutional culture also seems to have played a significant
role in the case of Donald Jay Beardslee under Governor Schwarzenegger,
a more difficult case than Babbitt's, but one where clemency could
have and should have prevailed given the defendant's psychological and
possible neurological factors in mitigation, and the penalty jury's
deliberation process which evidently was tilted toward death by a fear
that Beardslee might not receive appropriate psychiatric treatment and
support in prison, and thus could pose a danger of future violence.

That the prosecution prominently raised the issues of future violence
is not so surprising, given that Beardslee personally participated in
the acts causing the deaths on 24-25 April 1981 of Paula "Patty"
Geddling, age 23, and Stacy Benjamin, age 19, very likely himself
inflicting fatal wounds on both victims; and that he had previously
been convicted and imprisoned for seven years in Missouri for the
second degree murder of Laura Griffin in December 1969. However, the
circumstances of these homicides, as well as other facts of
Beardslee's life, caused the jury to agonize over its penalty
decision, and should have caused a Governor, with the benefit in early
2005 of more information about the prisoner's character and
background, to commute this jury's reluctant death verdict to LWOP.

Especially salient to the clemency decision was Beardslee's actual
record of over 20 years of outstanding service and cooperation with
correctional staff during his pre-trial custody and on Death Row,
which led former Warden Daniel Vasquez of San Quentin Prison to
recommend a commutation in the strongest terms as promoting prison
safety and security.

The Beardslee case is worth reviewing in detail because it at once
illustrates the seductive power of the deadly "illusion of impunity"
in misdirecting an unwary Governor's discretion, and offers a warning
that proposals simply to limit the scope of the death penalty to a
smaller number of special circumstances will _not_ provide a reliable
shield against wrongful and disproportionate executions where the
institutional culture and political forces may cause decisionmakers to
disregard critical mitigating circumstances.

Specifically, Beardslee was evidently quite correctly convicted of
participating in the first degree murders of both Patty Geddling and
Stacy Benjamin, thus bringing into play the special circumstance of
multiple murder (Penal Code Section 190.2(a)(3)). Additionally, his
earlier conviction for second degree murder in the killing of Laura
Griffin would have qualified him for the death penalty or LWOP under
Penal Code Section 190.2(a)(2), "The defendant was convicted
previously of murder in the first or second degree" -- except that
this conviction in Missouri was obtained by unconstitutional means.

Since one or both of these special circumstances would be retained in
typical proposals to narrow the scope of California's death penalty, a
closer examination of the Donald Jay Beardslee case will dramatically
underscore the continuing risks of deadly and irrevocable injustice
raised by such a system, risks which should be morally intolerable to
the citizens and law enforcement officials of our state.

In reviewing the relevant mitigating factors, we should carefully bear
in mind that none of these factors constitutes a legal defense or
excuse for Beardslee's crimes, which indeed would amply justify a
prosecutor's decision to file special circumstances allegations and
seek the very severe penalty of LWOP. However, to execute this
prisoner was an act of overreaching which must be deemed a clear
miscarriage of justice -- a statement which might be made of any
execution, but which applies with special force to Beardslee.

An impressively comprehensive set of documents related to his case is
available at <http://www.hcrc.ca.gov/news/beardslee/>; these
documents, plus relevant court decisions and the Governor's statement
denying clemency, provide sources for the following discussion.

A consideration of possible mitigating factors in Donald Jay
Beardslee's case might begin with his childhood: family members
reported certain physical and developmental anomalies which, as
evaluated by licensed psychologist Ruben C. Gur, suggested congenital
or early childhood deficits in the right cerebral hemisphere of his
brain. While this conclusion was inferential and necessarily inexact,
Dr. Gur urged exploring these issues further through medical tests
of neurological structure and function such as an fMRI, or functional
Magnetic Resonance Imaging.

While the possibility of neurological deficits during Beardslee's
prenatal or early childhood development remained an open question,
there was uncontested evidence of two major accidents in which he
sustained significant head injuries. Born in 1943 in St. Louis,
Missouri, he was involved in August, 1961, in a car accident which led
to his extended hospitalization. The second accident, with its more
dramatic neurological involvement, took place at a work camp in a
wooded area near Taft, Minnesota on 20 January 1965.

Beardslee had joined the United States Air Force in 1962, and in
December of 1964, while serving in Duluth, had become involved with
another airman in a criminal misadventure. The two were arrested by
local police for tampering under the hood of an automobile at a used
car lot in an attempt to rig the ignition and steal the vehicle, thus
violating a local ordinance against "tampering with a motor vehicle." 
Both airmen received a sentence of 60 days at the county workfarm, and
Beardslee was awarded a reduction of ten days for his good conduct
while serving the sentence.

On his last day, he was working as a woodsman and watching a tree fall
when, unbeknownst to him or anyone else present, it evidently
interacted in its descent with a nearby dead tree, causing this tree
in turn to fall and strike him in the head, causing a skull fracture
with traumatic brain injury. He was unconscious for some time -- about
three hours, according to one report -- and was hospitalized until
February 11 in a civilian facility, then being transferred to an Air
Force dispensary. 

Later medical reports in following months document continuing
neurological symptoms such diplopia or double vision, and problems
with walking gait. Beardslee was honorably discharged in 1968.

His killing of Laura Griffin, a woman he evidently met in a St. Louis
bar, and who may have invited him to come with her to a "party" in her
apartment, remains mysterious. The fatal encounter evidently happened
on or around 26-27 December 1969. After the two entered her apartment,
where in fact no party was going on, at some point he attempted to
strangle her, and when he saw that she remained alive, got a knife
from the kitchen with which he inflicted fatal wounds in her throat,
then moving her to the tub in the bathroom, where he placed her head
under water until she stopped struggling. He himself described these
acts, for which he was convicted of second degree murder, as sudden
and inexplicable, possibly triggered by the effects of alcohol, to
which he felt very susceptible.

It is crucial that while some professional evaluations in the months
immediately after the murder found "no mental disorder," others
suggested a paranoid and/or schizoid or schizophrenic disorder, with
one expert also suggesting brain damage as a factor. It is significant
that Beardslee confessed to a lawyer, and then to the police, and pled
guilty with the understanding that he would get psychiatric help, an
agreement sadly left largely unfilled. He was sentenced in 1970 to 19
years in prison, with credit for pre-trial confinement, and began his
term that December.

The motive for the murder remained a mystery, and one important theme
of Beardslee's psychological evaluations in prison was that he needed
to explore this tragic episode in more detail and understand his
violent conduct, which might happen again after his release. During
his term he was a model prisoner, apart from two isolated disciplinary
infractions in November 1975, in a period when he experienced
"setbacks" or delays in his consideration for parole after friends,
impressed with his performance, built up his expectations that he
would be promptly released. He received a term of ten days in the
Adjustment Center for "contraband, money" -- that is, the forbidden
possession of regular U.S. currency. Both the seriousness of his
crime, and the continued mystery as to the motives or psychological
dynamics behind it, warranted this caution despite his fine record in
prison.

However, Beardslee was paroled to California in 1977 after serving
seven years, with a provision for counselling as he himself had sought
both in Missouri and as a part of his life upon release from custody.
Unfortunately the sessions began but were terminated because of the
unavailability of his current therapist, or another, to continue
them.

He maintained a good parole record, unfortunately so much so that he
was erroneously classified as in need of minimal supervision -- a
grave error considering his previous homicide with an unknown motive,
and especially the reports of serious mental illness both before and
during his incarceration with unresolved concerns about his ongoing
potential for violence in the wrong circumstances. Beardslee found a
position as a machinist at Hewlett-Packard, where he won commendation
for above-average performance. Only in the fateful late winter and
early spring of 1981 did his performance there begin to suffer.

In a random encounter, Beardslee had picked up a young hitchhiker
named Ricarda Sue "Ricki" Soria, as it turned out a person involved in
prostitution and drug use. Although the two had commercial sex, this
was not Beardslee's main motive, and their relationship after this
encounter was generally nonromantic, one of roommates at his apartment
in Redwood City. Rather, as Justice Stanley Mosk asserted in his
dissent to affirming this defendant's sentence of death, "he
befriended Soria and attempted to free her from drugs and the drug
underworld," _People v. Beardslee_ (1991), 53 Cal.3d 58, 119.  That
drug underworld included the cast of characters who would, instead,
set the stage for his participation in two new murders.

These associates of Soria included Frank Rutherford, known for his
statements that he would be difficult to convict for any offenses
because or his family would "take care" of any witnesses; Bill
Forrester; Patty Geddling and Stacy Benjamin, the victims, both known
for selling drugs and the latter for "ripping people off"; and Ed
Geddling, Patty's estranged husband.

There are two different accounts of the plot leading up to the crime,
possibly not mutually contradictory. In one version, Edgar (often
called Ed or Eddie) Geddling, Patty's estranged husband, unexpectedly
visited her residence and found her with her lover Stacy. Then
resolving upon revenge, he set in motion a plot in which Frank and
Ricki would "set up" these two women on his behalf. However, while the
authorities initially accepted this theory, charges against Ed
Geddling were eventually dismissed.

The other account ties the plot to a drug transaction with the two
victims where Bill Forrester felt he had been cheated, and sought
revenge through "setting up" Patty and Stacy.

Under either account, the location where the victims were to be
intimidated, robbed, or worse, was set as Ricki Soria's apartment --
meaning Beardslee's apartment where she was staying. Friends of
Beardslee were wisely cautioning that Soria's presence, itself a
violation of his conditions of parole however benevolently intended
(at one point he rescued her from a crisis due to her drug use), was
yet more dangerous because of her lifestyle and acquaintances.

Beardslee himself was evidently uninvolved in the plot until the
afternoon of 24 April 1981 when it was put into action, returning to
his apartment where he has asked to bring Frank over. He brought a
shotgun and a garrote, with which he occupied himself while waiting
for the victims to arrive. According to one version of the plot, the
murder of both women was intended; in another, Stacy was to be killed
and Patty "beaten." In still another version, the intent may have been
only to "scare" the victims and force them to pay Forrester back the
money from the disputed drug deal -- who, Soria hoped, would then
share some of this money with her that she felt he owed her.

Shortly after the two victims arrived, Frank confronted them with the
shotgun -- and it went off, wounding Patty in the shoulder, in one
account as an accident when Patty attempted to defend herself by
grabbing for the weapon. Ricki suggested telling Beardslee's landlord,
who soon appeared to complain about the loud noise, that she had set
off a firecracker in the apartment; she told this story herself, and
Beardslee told it also when he met the landlord outside, who warned
that such incidents would get him evicted. Ricki's presence had been
connected with loud noise from a stereo, uncharacteristic of Beardslee
himself.

Directed by Frank, Beardslee attempted to "clean up" the scene, and
also attended Patty, trying to stop the bleeding. There was discussion
about taking her to "the hospital," but given Frank's previous
statements about witnesses, it is not so surprising that a much more
tragic and heinous scenario ensued.

Beardslee was recruited along with Ricki and Bill Forrester to drive
Patty to a location which turned out not to be a local hospital, but a
stretch of Bean Hollow Road. Near Bean Hollow State Beach, the car was
stopped. Patty begged for her life. According to one account,
Forrester fired two rounds with the shotgun, fatally wounding her in
the chest but not immediately killing her. About 8-10 minutes later,
after having some trouble with the gun, Beardslee fired two additional
shots which inflicted promptly fatal head wounds. Bill then was taken
home.

Beardslee and Ricki then became part of the second act of this
tragedy; after returning to his apartment, they responded to a
telephone call from Frank early in the morning, and met him at the
apartment of his girlfriend Dixie Lee Davis, where he had brought
Stacy. She was assured that Patty was in the hospital, and was all
right. At Frank's direction, although she was obviously unhappy with
the situation, she left together with Soria and Beardslee.

After Ricki had obtained cocaine whic she shared with others, and
Frank had visited his brother in Sebastopol, where Beardslee heard him
discuss where to "drop off" Stacy, which took to mean killing her and
dumping her body somewhere. They then left and drove further north,
supposedly to obtain drugs, but stopped near a secluded area.

Stacy and the others exited the car, she reluctantly, and she asked if
Beardslee was now supposed to strangle her. Frank replied in the
negative, and soon went off with her. Beardslee heard a "commotion,"
and Ricki urged him to go and "help" Frank, People v. Beardslee, 53
Cal.3d at 84.

He found Frank strangling Stacy manually with his left hand, a wire
intended for this purpose having broken. He complained that she was a
"die hard bitch," and eventually Beardslee completed the killing by
cutting her throat twice, inflicting fatal wounds. Her body was then
left nearby, Beardslee at Frank's suggesting having pulled down her
pants to make the crime look like murder in the course of a sexual
assault. Then Frank returned to his girlfriend's apartment along with
Beardslee and Ricki.

That same morning, the police became aware of the case when joggers
found Patty Geddling's body, and got their first lead when there was
recovered from her clothing a "shoe repair claim ticket" with Donald
Jay Beardslee's telephone number. He was telephoned by Sergeant
Detective Robert Morse of the San Mateo County Sheriff's Office, and
agreed to come in and give a statement. The California Supreme Court
describes what happened next:

                  Morse began the interview by talking about the
                  difference between a witness and a suspect, and then
                  asked defendant if he were involved in the case. 
                  Defendant replied: "Well, Frank [Rutherford] shot
                  her but I guess I'm involved because I shot her in
                  the head twice myself. I was afraid." Defendant was
                  advised of his _Miranda_ rights and gave a detailed,
                  taped statement about both killings. From
                  defendant's directions, officers found Stacy's body
                  near the Hopland Grade Road in Lake County, as well
                  as numerous items of evidence in scattered
                  locations in San Mateo County. A transcription of
                  defendant's statement, as well as the tape itself,
                  became an exhibit at defendant's trial. People v.
                  Beardslee, 53 Cal.3d at 83-84.

Thus Beardslee, through his full cooperation with the authorities,
became a critical force in bringing himself and the other perpretators
to justice for these heinous murders. Indeed, his pivotal role became
the topic for what the reader might perceive as a moment of comic
relief in the Supreme Court's decision. Justice Armand Arabian, ably
writing for the Court, consider Beardslee's claim on appeal that a
jury instruction may have invited the jury unduly "to reject the whole
testimony" he gave if the jurors found that he had testified falsely
on a material point. As the Justice wryly explained, the possibility
that the jury might reject "the whole of his testimony" was really not
relevant, "because most of it, together with his testimony in a prior
proceeding and his statement to the police introduced by the
prosecution, constituted the backbone of the case against him." Id.,
53 Cal.3d at 94.

Beardslee's conviction for the murders of Patty Geddling and Stacy
Benjamin, like his earlier conviction for the second degree murder of
Laura Griffin in Missouri, thus rested largely on his own confession
and enthusiastic cooperation with the authorities. Beardslee's
forthcoming nature became the subject for a moment of humor in a
telephone conversation between Captain Jack Patty in St. Louis, who
had been involved in taking his confession in the Missouri case, and
Carl Holm, a Deputy District Attorney involved in prosecuting the
murders of Geddling and Benjamin[103]:

                  HOLM:  Beardslee has a tendancy [sic] to talk more 
                         than he should.

                  PATTY: True, true, true, true. We probably couldn't
                         shut him up if we wanted to.
                  
Not so surprisingly, Beardslee was convicted of first degree murder in
the killings of Geddling and Benjamin, with the valid special
circumstance of multiple murder (California Penal Code Section 190.2
(a) (3)). Another special circumstance found, that of killing these
women as witnesses to crime in order to prevent their testimony, Penal
Code Section 190.2 (a) (10), was held invalid by the California
Supreme Court, since the killings were part of "a single continuous
criminal transaction" which began with the arrival of the two victims
at Beardslee's apartment and the first nonfatal shooting of Patty
Geddling. _People v. Beardslee_, 53 Cal.2d at 95-96.

Thus the witness-killing motive could not itself serve as the basis
for Beardslee's eligibility for the death penalty or LWOP. However,
once he had been made eligible by another special circumstance, here
multiple murder, then the jury could consider this motive as a
relevant factor in its penalty phase decision between life and death,
id., 53 Cal.3d 117.

In any review of this case, it is important to recognize the horrible
and prolonged ordeal of the two victims and the coldly calculated
nature of their killings at least on the part of Frank Rutherford, the
evident architect of this episode of murderous violence, who was known
for his boasts that he would never go to jail because, as the Supreme
Court put it, "he or his brothers would take care of any witnesses,"
id., 53 Cal.3d at 81.

However, as reflected by the prolonged deliberations of Beardslee's
penalty jury and the questions its members put to the trial judge,
there were compelling mitigating circumstances present which could
have and should have led to a penalty of LWOP rather than death for
this prisoner, whether by the jury's decision, as the result of an
appellate court decision, or through the Governor's decision for
clemency.

The first factor to be considered was Beardslee's cooperation with law
enforcement authorities, both in confessing the Missouri murder of
Laura Griffin, and in documenting for the investigating officers not
only his own role in the murder of Patty Geddling and Stacy Benjamin,
but the roles of others involved in these crimes -- including, most
particularly, the role of Frank Rutherford as the evident prime mover
of the tragic and ghastly events of 24-25 April 1981.

This cooperation did not, of course, in any negate his very major
culpability as the person who likely fired the fatal shots which
killed Geddling and inflicted the knife wounds in Benjamin's throat
which caused her death. However, it might reasonably have led to an
outcome like that in Rutherford's own case: a negotiated plea of
guilty to first degree murder with special circumstances carrying an
agreed sentence of LWOP.

Also, while Beardslee's ready cooperation with the police was not
inconsistent with the potential for homicidal violence in certain
situations which his history confirms, it does seem at odds with the
image of a hardened and coldly calculating criminal who is arguably
among "the worst of the worst," and thus a candidate for execution
under the rationale of existing death penalty legislation (however one
evaluates that rationale). Rather, this trait of Beardslee's character
would better comport with the account of a socially naive person who
may be led in various directions by the people who surround him at a
given point in time, or by the force of unfathomable impulses such as
those which may have helped trigger the Missouri murder of Griffin.

While a readiness to confess one's crimes might in itself be viewed as
a mitigating factor, here Beardslee's cooperation ties in within
another compelling factor: his history of mental illness, and of
traumatic head injuries incurred first in an automobile accident in
1961, and then in the Minnesota work farm accident of 20 January 1965
when a tree fell on him and knocked him unconscious for some time,
with persistent neurological symptoms. This is precisely the kind of
evidence which, although by no means refuting legal guilt, was pivotal
in some of Governor Pat Brown's decisions to grant clemency in capital
cases. 

Such neurological injuries, while leaving Beardslee legally sane and
accountable for his actions, might interfere to a degree with his
impulse control in a situation like that where he killed Laura Griffin
for reasons unknown, or maturely to evaluate and appreciate his
choices and their ultimate consequences in a position like that in
which he was placed on 24 April 1981, under the influence and likely
at least partial domination of a character such as Frank Rutherford.

The records of Beardslee's psychological assessments while in the
Missouri prison system point to a possible diagnosis of paranoid
schizophrenia, and an assessment done three decades later by
neuropsychologist Rubin C. Gur, Ph.D., likewise pointed to a
"schizophrenia spectrum disorder" as well as some symptoms reported by
Beardslee's family and others consistent with an autistic disorder.

Attempting to apply current neuropsychological understandings to
Beardslee's case, Dr. Gur suggested an inference that Beardslee may
have suffered significant damage to the right hemisphere of his brain
at some critical point of prenatal or early postnatal development, an
impairment interfering with his ability to process social cues and
respond appropriately in complex social situations. Based on the
available behavioral data, Dr. Gur generated a possible map of the
prisoner's brain showing the right hemisphere regions which might be
impaired. To place these tentative conclusions on a firmer basis,
Dr. Gur recommended and Beardslee sought a functional MRI (fMRI) which
could concretely document such brain abnormalities as measured when
Beardslee was processing various kinds of social situations or cues.

As advocates against clemency correctly pointed out, Dr. Gur's
proposed neurological "map" was itself not the result of any objective
test, but a possible interpretation of Beardslee's life history and
known record of serious head injuries, however educated or plausible
this computer-generated model might be. However, following the good
example of Governor Pat Brown, who took great interest in any medical
evidence which might support a Death Row prisoner's case for clemency,
Governor Schwarzenegger could have and should have authorized an fMRI
or similar scientific test to permit an objective assessment of the
facts. While the case for clemency might well be overwhelming without
the benefit of this evidence, proceeding with his execution in its
absence reflects an institutional culture of indifference to the
mitigating factors of mental disturbance and traumatic brain injury in
which Governor Brown took such a lively interest.

The prisoner's mental illness and neurological damage tie in
intimately with another pivotal consideration stated forcefully by
Justice Stanley Mosk, on of our state's greatest jurists of the 20th
century, in his dissenting opinion on the issue of penalty. This was
an issue in which the penalty phase jury itself took an interest: the
relative culpability of others accused in the murder of Geddling and
Benjamin and the actual dispositions of their cases.

Among the jury's notes we find this question:

                  What are the other parties to this crime charged
                  with and what is the present disposition of each
                  case.[104]

As Justice Mosk's reasoning in his vigorous dissent makes clear, this
was a question well worth asking. While his argument touches on some
points of law which might be deemed uniquely within the province of
the judicial branch, much of his logic goes to the human factors and
equities which any Governor considering clemency should prudently
take into account.

Before addressing the issue of Beardslee's punishment as compared to
that of others involved in the murders of Geddling and Benjamin,
Justice Mosk had addressed a related penalty phase issue: presentation
by the prosecution of evidence related to the Missouri murder of Laura
Griffin. Beardslee's confession of that crime, as all the justices
agreed, had been obtained at least in part by a flagrant violation of
the Constitution when an officer arranged to interrogate Beardslee
after his attorney had directed no further questioning without advice
of counsel. The officer than gave false testimony to conceal this
constitutional violation. 

While the majority considered it permissible to admit a voluntary
statement by Beardslee after his arrest for the murders of Geddling
and Benjamin acknowledging the earlier murder conviction as a basis
for presenting aggravating penalty phase evidence on this crime,
People v. Beardslee, 53 Cal.3d at 104-111, Justice Mosk disagreed,
id. at 118-119, as did Justice Allen Broussard in his own dissent,
id. at 120. However, Justice Mosk's argument then decisively focused
on the point that with or without consideration of this earlier crime,
Beardslee's case did not call for the penalty of death when none of
his codefendants had received that punishment.

As Justice Mosk summed up the facts:

                  "The evidence introduced at the penalty phase showed
                   that defendant was an excellent employee, a model
                   student, and in general a decent and law-abiding
                   citizen, It also showed that he participated in the
                   brutal murder of Patty Geddling and Stacy Benjamin.
                   In early 1981 he befriended Ricki Soria and
                   attempted to free her from drugs and the drug
                   underworld, involving such characters as Frank
                   Rutherford, William Forrester, and Ed Geddling.
                   Two months later, at their urging, he became
                   involved with Soria and others in the killings.
                   Apart from the Missouri homicide, there had been no
                   other criminal activity on defendant's part." Id.,
                   53 Cal.3d at 119.

Here one might note that the Justice's statement of "no other criminal
activity on defendant's part" might appear at first blush to be
contradicted by Beardslee's conviction in Duluth, Minnesota in
December 1964 for tampering with an automobile in violation of a
municipal ordinance. In one sense, this legal incident might be
regarded as a fateful one for Beardslee, since it led to his service
on a nearby county work farm where he was hit by a falling tree and
sustained a traumatic brain injury.

However, in the context of a penalty phase proceeding on the issue of
life or death, Justice Mosk was quite correct in his statement: under
Penal Code Section 190.3, only criminal activity involving either
conviction of a felony or the threat or use of "force or violence" is
to be considered. When the death penalty is at stake, California law
wisely regards lesser offenses as beneath its cognizance.

Having focused on some of the relevant facts, Justice Mosk then
presented the penalty jury's moral dilemma:

                  "The question of penalty must be considered close.
                   To be sure, the evidence in aggravation was
                   substantial. But substantial too was the evidence
                   in mitigation. The closeness of the question is
                   apparent on the face of the record. And it is
                   confirmed by the manifest difficulty the jury
                   experienced in reaching its decision -- it
                   deliberated almost 23 hours over 4 days -- and by
                   the differing verdicts it returned -- death for the
                   murder of Geddling and life imprisonment for the
                   murder of Benjamin." Id., 53 Cal.3d at 119.

For Justice Mosk, these considerations were relevant in part in
leading to the conclusion that had the evidence of the Missouri murder
not been admitted -- evidence in his view fatally "tainted" by the
unconstitutional conduct of the officer who obtained his confession --
the California penalty jury might well have reached a different
result, thus making this error (in his view) an obviously harmful one.

From a clemency perspective, however, his second point in dissent may
be the most salient one: the unfair and indeed "irrational" nature of
a process leading to the result that Beardslee, and Beardslee alone,
should be sentenced to death for the murders of Patty Geddling and
Stacy Benjamin.

                  "My second reason for dissenting as to penalty is
                   the presence of so-called `intracase'
                   disproportionality violative of the cruel and
                   unusual punishments clause of the Eighth Amendment
                   to the United States Constitution. Defendant,
                   Rutherford, Forrester, Soria, and Ed Geddling were
                   all engaged in the common criminal enterprise that
                   culminated in the two murders. Nevertheless, only
                   defendant was condemned to death." Id. at 119-120.

Here "intracase" disproportionality means a disparity in the life or
death decisions afforded to two or more codefendants in the same case:
that is, disproportionate results "within" a case, in contrast to
issues of proportionality involving separate capital cases (see
Section 3 above). As Justice Mosk explained, the Califoronia Supreme
Court was willing under certain limited circumstances to consider such
disparities within a case between codefendants, although it had
repeatedly rejected the need for broader proportionality review
comparing results in less intimately related cases:

                  "I recognize that `intracase' disproportionality may
                   be found only if the capital punishment has
                   operated in an arbitrary and capricious manner
                   [citations omitted]. Plainly, the system operated
                   in such a manner here. It would indeed have been
                   rational to subject defendant and the others to
                   severe punishment for the two murders. It would
                   even have been rational to treat each of the
                   participants somewhat differently on the ground
                   that each engaged in distinct conduct and
                   entertained a distinct state of mind. But -- put
                   simply -- it is altogether irrational to take
                   defendant's life in punishment for the killings and
                   to spare the lives of all the others." Id. at
                   120.[105]

A Governor weighing these equities would also note Justice Arabian's
reply to this dissent on behalf of the majority of the Court:

                  "In response to the dissent's view that it is
                   `irrational' to subject only defendant to the death
                   penalty, and not the others involved in this crime,
                   we note that, unlike some of the others, defendant
                   was an active participant in both murders of this
                   case, and he alone committed the brutal murder in
                   Missouri." Id. at 111.

In considering how a Governor might resolve these judicial views, we
begin with a point, already mentioned, which may be instructive in
illustrating how a Governor's duty may somewhat vary from that of an
appellate court. While the admissibility of Beardslee's confession and
guilt in the MIssouri killing was in the opinion of Justices Mosk and
Broussard a clear and harmful error, a Governor might well leave this
point aside and focus on how the jury approached this case in the
light of all known circumstances, including Laura Griffin's tragic
murder.

Two reasons might support this conclusion. First, Beardslee
surrendered to the Missouri authorities with the intention of
confessing his crime and "getting help," and indeed this cooperation
is relevant as a mitigating factor. The fact that an overzealous
officer precipitated a full confession by flagrantly unconstitutional
conduct certainly warranted the attention of California's HIgh Court,
as reflected in the thoughtful positions of both majority and
dissenting Members, but could be regarded by a Governor as tangential
to the heart of the clemency decision, which is concerned with the
appropriateness of a prisoner's death sentence rather than the
propriety of the police conduct leading to the confession of an
arrestee who surrendered for the evident purpose of acknowledging his
offense.

Also, from a public policy perspective, a Governor might note the
general favor in which California has held a goal of "truth in
sentencing" when a jury considers penalty in a capital case. Indeed, a
major purpose of the Legislature in enacting the pioneering 1957
Chapter 1968 providing for a separate penalty trial in such cases was
to give the jury or trial judge the opportunity of hearing all
relevant evidence, including information about previous crimes of
violence which might be prejudicial if the jury were at the same time
considering the question of guilt. The generous admission of all
probative evidence in aggravation or mitigation, a prime objective of
California law for over half a century, was served rather than
defeated by the jury's consideration of the Missouri murder as one
very relevant factor of Donald Jay Beardslee's history.

However, a Governor might also note that that very goal of truth in
sentencing was fatally defeated by depriving the jury of information
about dispositions and sentences for Beardslee's codefendants and
other alleged participants in the scenario leading to the murder of
Patty Geddling and Stacy Benjamin. It is a tribute to the jurors that,
weighing all factors including the murder of Laura Griffin, they
sought out the information that could help them make an informed
decision -- unsuccessfully, as it turned out.

It is in this perspective that one must wisely evaluate the distinct
views of Justices Mosk and Arabian as to Beardslee's relative
culpability and the "rationality" or equity of the unequal punishments
imposed upon him and Frank Rutherford, the evident mastermind of the
lethal conspiracy who had received LWOP.

Certainly Justice Arabian's opinion for the majority is correct in
observing that Beardslee presented the distinguishing factors of being
personally present at the scenes of the murders of both Geddling and
Benjamin, evidently inflicting the fatal wounds upon both victims; and
of having been convicted for a previous murder. The relevant question
for a Governor considering clemency is whether these distinctions are
sufficient, in context, to justify a sentence of death for him when
Rutherford received LWOP.

Here a number of other factors, when reasonably weighed, support the
conclusion of Justice Mosk that such a disparity is, indeed,
"irrational" and "arbitrary."

        (1) Although Beardslee was guilty of second degree murder in
            the killing of Laura Griffin, this crime appeared to be
            the result of an impulsive act, with alcohol reportedly
            playing a part, rather than a homicide in the course of
            another crime or as the result of an ongoing criminal
            enterprise. In contrast, Rutherford and some other
            participants in the killings of Geddling and Benjamin --
            unlike Beardslee -- were demonstrably or likely involved
            in such enterprises, including drug dealing, "enforcement"
            of drug debts, and intimidation of witnesses.

        (2) As Justice Mosk emphasized, Beardslee's involvement with
            Ricki Soria was evidently motivated by a desire both to
            offer her assistance in countering the physical and
            psychological damage she was sustaining from her
            participation in this "drug scene," and if possible to
            support her in removing herself from that scene. While by
            no means negating or minimizing Beardslee's most grave
            culpability in the murders of Patty and Stacy, this
            motivation potently mitigates against a death sentence.
            In some sense, Beardslee's fate was like that of a swimmer
            who attempts to help another person in distress and
            instead also succumbs to a lethal current. His involvement
            with Soria was, of course, a violation of his parole, the
            conditions of which were designed preciously to take into
            account that parolees may fall into the most serious
            criminal conduct through indirection rather than
            deliberate intent. However, his manner of becoming
            entangled in the murder plot sets him apart from other
            convicted or alleged actors, and most particularly from
            Rutherford.

        (3) Although Beardslee indeed likely inflicted the fatal
            wounds on both victims, Rutherford had also played a
            critical part in each murder, by initially wounding Patty
            with a shotgun blast to her shoulder while committing what
            legally amounted to an assault against her with the weapon
            (even if the intent were to scare without shooting), and
            by his sustained effort to kill Stacy by strangulation
            with a garrote or "wire" and with his bare hands. A jury
            or Governor could readily conclude that Rutherford,
            although found not guilty of Patty's actual murder, could
            very well have been the prime actor in sending Beardslee,
            Forrester, and Soria out with her in a van for the
            announced purpose of taking her to a hospital, but the
            actual purpose of having her killed and preventing her
            testimony -- or, in another possible scenario, of having
            her killed as intended all along. The fact that Rutherford
            was found guilty beyond a reasonable doubt only in Stacy's
            murder, and that charges against Ed Geddling, Patty's
            estranged husband, were dismissed because the prosecution
            felt unable to meet this high burden of persuasion before
            a jury, does not and should not prevent a decisionmaking
            on the issue of penalty from weighing the probabilities
            and their mitigating implications for Donald Jay
            Beardslee.

        (4) The fact that Beardslee had no evident interest in hurting
            either Patty or Stacy, and that apparently he was co-opted
            into the plot only on the afternoon of 24 April 1981 when
            the "setting up" of the victims was about to take place,
            suggests that he was indeed, as he testified, under the
            substantial domination of Rutherford, even if the degree
            of that influence (and quite possibly at least implicit
            intimidation) did not rise to the level of outright
            "duress." This is precisely the kind of factor which,
            although in no way a legal defense to the crime of capital
            murder, serves as a powerful mitigating circumstance in
            favor of life. Indeed, Penal Code Section 190.3(g)
            explicitly recognizes either outright "duress" or
            "substantial domination" as a statutory mitigating factor
            in the life or death decision: "Whether or not defendant
            acted under extreme duress or under the substantial
            domination of another person."

        (5) Beardslee's head trauma and schizophrenic disorders may
            have contributed both to his commission of the murder of
            Laura Griffin in Missouri, and his susceptibility to the
            influence and/or intimidation of Frank Rutherford in
            co-opting him and commandeering his apartment (then also
            Soria's residence) for the plot to "set up" Patty and
            Stacy which led to, and possibly included from the start,
            their murders. His ready compliance with officers of the
            law in confessing these crimes, laudible when given for a
            desirable social purpose such as law enforcement, might
            reflect a certain "naivete" which could be harnessed for
            the most extreme antisocial purposes by an actor such as
            Rutherford.

Deprived of critical information about the disposition of other cases,
the penalty jury nevertheless likely experienced in its prolonged
deliberations an "agony of the spirit" like that reported by Justice
Blackmun in considering capital cases during his long and illustrious
career as a federal jurist, see _Furman v. Georgia_, 408 U.S. 238, 405
(dissenting opinion). As an indication that their moral inquiry
centered especially on Beardslee's culpability and his mental
mitigation, we find various questions relating both to testimony by
codefendants and dispositions of their cases, as well as his potential
for rehabilitation and the possibility of some form of psychological
treatment or counselling in prison.  

Confronted with this record as regards the question of relative
culpability or disproportionality of punishment between codefendants,
a Governor might draw on the logic of Governor Brown's observations
regarding the case of Elizabeth "Ma" Duncan and the two young men she
hired to kill her daughter-in-law Olga Duncan, Luis Moya and Augustine
Baldonado. As discussed above, Governor Brown and his clemency advisor
Alan Alarcon had concluded that to commute Duncan's death sentence
while leaving Moya and Baldonado to be executed would be an unjust
result, since it was Duncan who had initiated the murder plot and
invited their participation, however mercenary: it was an "all or
nothing" proposition.

The Governor, if we read both within and between the lines of his
memoir, may have decided that granting clemency to all three would
have been an act beyond his perception of the proper powers of his
office, tantamount in effect to a _de facto_ moratorium or abolition
of the death penalty. Although fervently pursuing this goal in the
Legislature, for example calling a special session before the
scheduled execution of Caryl Chessman in 1960 for this specific
purpose (at considerable cost to his political capital), he felt it
outside the valid scope of his office to bring it about unilaterally.
Thus he declined to intervene in the Duncan-Moya-Baldonado case,
permitting their triple execution on 8 August 1962, despite his
intense personal opposition to these and all state killings.[106]

However, the very logic of "equal justice" which led to Brown's denial
of clemency for Duncan (feeling unable to spare the lives of all three
defendants in Olga Duncan's murder for hire) would lead a Governor to
spare the life of Donald Jay Beardslee in the light of the fate of
other defendants or likely conspirators in the plot against Patty and
Stacy, emphatically including Frank Rutherford.

A factor shading any thorough consideration of the Duncan case was the
evidence that "Ma" Duncan suffered from some kind of pathological
attachment to and jealousy of her son Frank, Olga's husband -- an
abnormality amounting at least to a "neurosis." In contrast, while
Rutherford may have suffered from various mitigating mental disorders
-- it would be interesting to learn more of his background or the
mitigating evidence considered in his case leading to a penalty of
LWOP -- his likely motivations seem rather more straightforward and
conventionally criminal: to help one or more friends get revenge
either for a "drug deal gone bad" or for a love triangle situation,
and then to prevent testimony regarding his assault with a deadly
weapon upon Patty by killing both her and her friend Stacy, who was
present and witnessed this nonfatal shooting.

Rutherford's prime role in plot, whether its original purpose was to
beat or even kill Patty and Stacy or only to "scare" them and recover
disputed drug money, was thus analogous to Elizabeth Duncan's. In
contrast, whereas Moya and Baldonado agreed as career criminals to
kill Olga Duncan for hire, Beardslee acted without such a mercenary
purpose or established pattern of criminal enterprise. Might the same
factors that led to his apparently unpremeditated killing of Laura
Griffin have played a role in his participation in the deaths of Patty
and Stacy? That is a natural question to ask, with various possible
answers relating to his psychological condition, record of head
trauma, and similar factors. However, he was evidently acting as a
follower of Frank Rutherford and associates, co-opted into a plot of
which he seems to have been previously unaware. This is a radically
different role than that of Elizabeth Duncan or Frank Rutherford as a
prime mover; or of Luis Moya or Augustine Baldonado as a contractor
and "free agent" willingly taking on the project of a murder for hire
as one incident of a sustained criminal career.

Thus Governor Brown's clemency policy of "equal justice" suggests
that, like Justice Mosk, we take LWOP for Frank Rutherford as a strong
indication against death for Donald Jay Beardslee. Other aspects of
the penalty jury's deliberations -- and also a tragic misconception
which infected the actual clemency decision concerning Beardslee in
2005, as reflected in Governor Schwarzenegger's statement denying a
commutation to LWOP -- underscore this conclusion.

Most particularly, the questions raised by the penalty jury during its
agonizing deliberations indicate a high probability that jurors wished
to spare Beardslee's life, but feared that he might not receive
appropriate psychiatric help while in prison both to minimize the risk
of future violence on his part and to promote his rehabilitation. 
Either the California Supreme Court or the Governor could have and
should have corrected this unjust result contrary to established
California law and public policy, with executive clemency as a
critical safeguard against this type of miscarriage of justice.

While Beardslee's clemency petition included affidavits from jurors
recalling the deliberations and shedding light on some of the internal
processes in the choice for life or death, we should focus first on
the actual record of events at the penalty trial itself in January of
1984. A note from the jury to the trial judge on January 19 says it
all:

                  "Would Don receive either `group attack' therapy or 
                   psychiatric help if given life without parole?"[107] 

The portion of the question relating to "group attack therapy" may
need some clarification. As explained by the California Supreme Court,
_People v. Beardslee_, 53 Cal.2d at 116-117, a defense psychiatric
expert, Dr. Wilkinson, had testified that defendant's "antisocial
personality disorder" might be successfully treated through
psychiatric help or "attack therapy." In fact, the term "attack
therapy" refers to a controversial variety of group therapy in which a
participant is verbally attacked or humilitated by others. This
specific modality of treatment has raised serious ethical concerns
which would be yet more acute if it were applied to a prisoner,
literally a "captive audience" who may not be in the best position to
offer fully free and informed consent.

However, the jury's more general interest in "psychiatric help" for
Beardslee was fully in line with California's public policy, and also
with promises which had been made to this prisoner when he had pled
guilty to the Missouri murder under an agreement which would provide
him with appropriate counselling or other treatment. Indeed, when
Beardslee was paroled to California in 1977, he started therapy
sessions -- which were soon terminated because the system could not
muster the resources to maintain them. The horrible deaths of Patty
Geddling and Stacy Benjamin -- or, at least, Beardslee's role in this
murderous scenario -- might have been avoided if therapy had been
maintained, and also an adequate level of parole supervision which
through a bureaucratic error had been reduced to a minimal level.

How did the trial judge respond? The jury received an answer as
follows:

                  "Disposition by the Department of Corrections is not
                   a part of the decision you must make. This Court
                   has no jurisdiction over the Department of
                   Corrections."[108]

On one level, this statement was precisely correct: the jury's task
was simply and starkly to decide whether Donald Jay Beardslee should
be sentenced to LWOP or death, not to specify the conditions of an
LWOP term, nor to oversee its administration by the Department of
Corrections. 

However, on another vital and very human level this question might
signal that the jury, in fact, was being influenced in its task by
fears that Beardslee, if sentenced to LWOP, might not receive
appropriate supports to minimize the risk of future violence and to
achieve the maximum attainable rehabilitation. Other questions and
notes by members of the jury underscore this concern:

                  "Can conditions be put on the penalty? In other
                   words, can the lesser sentence be given under the
                   condition that certain provisions are met? Must
                   the jury arrive at an unconditional verdict?"[109]
  
                           .             .            .


                  "Could or would psychiatry sessions help or teach
                   him to learn or have remorse? Or overcome his
                   problems?"[110] 


                           .             .            .


                  "If it were deemed by the jury to be decisive, would
                   it be within the authority of the jury to request
                   additional psychological tests (such as with
                   phenobarbitol) on the defendant or on any of the
                   other parties to this crime? Could the jury insist
                   on hearing or seeing the testimony of other
                   co-defendants if such were deemed vital to a 
                   resolution of the proper sentence in this case?"[111]


The last of these questions seems to focus on two distinct themes:
Beardslee's own psychological state, and issues of comparative
culpability with other codefendants. Since the penalty jury was
selected specifically for this phase of the trial after a different
jury had decided the issues of guilt and special circumstances, an
interest in the testimony of codefendants is especially
understandable. However, all of these questions show an intense
interest in Beardslee's mental and emotional condition and his future
psychological treatment, an interest which seems reflected also in
another jury request:

                  "Can we have copies of:

                   People #53
                   
                   Chron. data sheet

                   Eval. reports from Missouri State Pen.

                   It's lengthy and many wish to read."[112]


The request for the evaluation reports by the Missouri state prison
system and "chron[ological] data sheet" documents also assessing
prison behavior and readiness for parole, would reveal both
Beardslee's generally excellent record there, his only infractions
being two minor instances of "contraband" or theft involving
unauthorized possession of U.S. currency after he received a "setback"
or postponement of his parole consideration; and a troubled
uncertainty as to the psychological dynamics or motives for the murder
of Laura Griffin. The open question of how to explain such a serious
violent crime led, as we have seen, to recommendations that parole be
approached with due caution despite Beardslee's outstanding record,
and that he receive psychological counselling to help him confront and
explore the possible motives for his homicidal act.

Indeed, in a set of questions addressed to the defense expert
Dr. Wilkinson, the jury raised much the same issues as the
professionals evaluating Beardslee during his prison term in
Missouri:

                  "Under what conditions could or would you imagine
                   the defendant committing such crimes again? What
                   would you imagine to be the prime motive for such
                   crimes being committed if they were to reoccur
                   given your knowledge of the defendant and [his]
                   present psychological state?"[113]

Taken together, these jury questions and requests for the trial judge
and Dr. Wilkinson show that the possibility of future violence on
Beardslee's part if sentenced to LWOP, and the availability of
appropriate psychological treatment to minimize this risk, were
of cardinal importance for the life or death decision.

The decision of the California Supreme Court reveals that after
Dr. Wilkinson testified that Beardslee could be helped by psychiatric
therapy, the doctor then "conceded on cross-examination that because
of budgetary constraints, psychotherapy is usually not available to
the general prison population." _People v. Beardslee_, 53 Cal.3d at
117.

While the Court held that the trial judge's simple reply that possible
treatment for Beardslee under a sentence of LWOP "is not part of the
decision you must make" did not prejudice the defendant's rights, and
that his attorney should have sought further clarification if had felt
this appropriate, in fact either a deeper examination of California
law or a careful weighing of the equities for executive clemency
readily leads to a different conclusion.

Very simply, penalty jurors should not return a verdict of death when
they actually favor a verdict of LWOP, but fear that the Department of
Corrections will fail to provide appropriate psychotherapy or other
treatment, thus needlessly increasing the risk of future violence on
the part of the defendant. Such an outcome, where the system spends
millions of dollars to execute a prisoner rather than the considerably
lesser amount required for an LWOP sentence with adequate treatment,
is at once a moral and fiscal nightmare which no appellate court,
Governor, or legislature should contenance.

First, an appellate court or Governor considering clemency might note
that the jury heard testimony that "because of budgetary constraints,
psychotherapy is usually not available to the general prison
population." The relevant question, however, was whether such therapy
would be available for a prisoner such as Beardslee, where this
treatment had already been agreed to as part of his Missouri plea
agreement, then interrupted, then initiated as part of his plan for
parole in California, and then again discontinued through no fault of
Beardslee himself. As noted in a psychiatric evaluation in January
1976, the year before his parole:

                  "It has been suggested that he seek psychiatric
                   care and counseling; he eagerly embraces this idea.
                   He started some within the institution, but was
                   unable to continue due to the lack of available
                   personnel. He now verbally states that he wants `to
                   find out about myself, why the incident happened,
                   and try to prevent anything of this nature or any
                   other antisocial action from occurring in the
                   future.'"[114]

Interestingly, the California Penal Code includes a provision, Section
5079, which might have been read to the jury either by the trial judge
on his own motion, or at the request of defense counsel, or by
direction of the California Supreme Court as one appropriate response
in a situation where a penalty jury may be concerned that a prisoner
receiving LWOP might not receive appropriate treatment to minimize the
risk of future violence. This section, after directing that the
Department of Corrections provide "facilities and licensed
professional personnel for a psychiatric and diagnostic clinic," then
mandates:

                  "The work of the clinic shall include a scientific
                   study of each prisoner, his or her career and life
                   history, the cause of his or her criminal acts and
                   recommendations for his or her care, training, and
                   employment with a view to his or her reformation
                   and to the protection of society." (Penal Code
                   Section 5079.)

The Director of Corrections then receives these recommendations and
must approve them before they become effective, with the discretion to
"modify or reject the recommendations as he or she sees fit" (id.)
-- but within the framework of a system committed to needed services
for prisoners, including psychotherapy where indicated. Beardslee's
penalty jury could have and should have, in response to its earnest
questions with their life or death import, been informed of these
provisions of the law, and also offered the guidance it sought through
an instruction such as the following:

                  "If, upon weighing the applicable aggravating and
                   mitigating factors, you conclude that the
                   appropriate penalty is life imprisonment without
                   the possibility of parole, then it would be a
                   violation of your duty as jurors to return a
                   verdict of death out of fear or concern that the
                   Department of Corrections or its Director may fail
                   in their responsibilities under law to provide the
                   defendant with psychotherapy or other care which
                   may be needed to achieve rehabilitation or prevent
                   future acts of violence."

In fact, a closely analogous dilemma for a penalty jury is the focus
of another California case we have already considered in a different
connection: _People v. Morse_, 60 Cal.2d 631 (see Section 3), decided
in January 1964, almost exactly 20 years before Beardslee's penalty
trial.

This case, as we have noted, includes some eloquent and indeed
prophetic language about the role of a California penalty jury in
looking at the defendant as "a whole being" and then determining "if
he is fit to live," id. at 647. While this statement masterfully
anticipates the requirement of individualized and informed discretion
in capital penalty decisions as announced by the United States Supreme
Court in 1976 under the Eighth Amendment (Section 3), the _Morse_
Court was specifically addressing an issue much like that presented in
Beardslee's case.

Joseph Bernard Morse, convicted of the first degree murder of his
mother and 12-year-old sister, received a death verdict from a penalty
jury which evidently was concerned about one facet of a verdict for
life: whether and when Morse might be paroled. At that time, a
defendant convicted of first degree murder received an indeterminate
life sentence, with eligibility for parole after a minimum of seven
years. At that time, the Adult Authority was the body responsible for
deciding the question of parole within this framework.

Briefly summed up, the _Morse_ Court ruled that the possibility of
future parolee was not an appropriate consideration in the life or
death decision. More particulularly, the Court held that previous
California experience had illustrated the risk that a jury would
"fear that the Adult Authority will permit a `dangerous' defendant to
walk the streets," and might "then foreclose the Authority from ever
granting parole by imposing the death penalty." As the Court
concluded:

                  "The jury would then utilize the death penalty for
                   fear that the Adult Authority will not properly
                   perform the function that the Legislature has
                   specifically delegated to it." _Morse_, id. at 644.

Observing that "the jury sometimes lamentably has `tried' the Adult
Authority" and its competence to administer the parole system (as then
structured), the Court formulated guidelines and instructions to keep
penalty jurors focused on the question of life or death for the
defendant before them. 

It presented and prescribed a general instruction which informed the
jury that a defendant under sentence of life imprisonment might either
spend the rest of his or her life in prison, or be released on parole
if the Adult Authority found that the prisoner "will assume a proper
place in society" and that his or her release "is not contrary to the
welfare of society." _Morse_, id. at 648.  

Having explained these and related aspects of the system, the Court's
approved instruction then made clear not only that the question of
future parole was outside of the jury's scope, but that they must not
let it sway them toward a verdict of death:

                  "So far as you are concerned, you are to decided
                   only whether this man shall suffer the death
                   penalty or whether he shall be permitted to remain
                   alive. If upon consideration of the evidence you
                   believe that life imprisonment is the proper
                   sentence, you must assume that those officials
                   charged with the operation of our parole system
                   will perform their duty in a correct and
                   responsible manner, and that they will not parole
                   the defendant unless he can be safely released into
                   society. It would be a violation of your duty as
                   jurors if you were to fix the penalty at death
                   because of a doubt that the Adult Authority will
                   properly carry out its responsibilities." Id. at
                   648.

Since 1977, the immediate issue of parole eligibility confronted in
_Morse_ has no longer been applicable, since the only choices for a
capital penalty jury are death or LWOP. However, the commonsense logic
of _Morse_ should apply to any situation with an undue risk that a
penalty who finds life imprisonment (now without possibility of
parole) the "proper sentence" may nevertheless return a verdict of
death "because of a doubt" that the Department of Corrections "will
properly carry out its responsibilities."

For Donald Jay Beardslee's jurors, those correctional
"responsibilities" focused on the provision, as supported by Penal
Code Section 5079, of appropriate psychotherapy or related treatment
which could help both to promote Beardslee's rehabilitation and to
minimize any risk of future violence while serving a sentence of
LWOP. The jury notes and questions to the trial judge, part of the
record before the California Supreme Court, cry out that such a result
repugnant to the values of _Morse_ was, at the least, a clear and
present danger.

For a Governor or legal advisor familiar with the logic of _Morse_,
executive clemency would provide an opportunity to redress this issue
by commuting Beardslee's death sentence to life without the
possibility of parole. In addition to the trial record, a Governor
reviewing the Beardslee case would have the benefit of additional
information such as the juror affidavit of Robert Martinez, who served
on the penalty jury in this case, actually presented to Governor
Schwarzenegger:

                  "During much of our deliberations we were split ten
                   votes to two for life without the possibility of
                   parole for both murder counts. I did not think that
                   Mr. Beardslee deserved to die because he did not
                   get the help that he so clearly needed and wanted
                   for his mental problems. During the penalty trial
                   we learned that there were times when Mr. Beardslee
                   was supposed to get treatment for his mental
                   problems, but then never did. It bothered me that
                   he was never treated for whatever mental illnesses
                   he had."[115]

This juror's first-person account of the agonizing penalty
deliberations, objectively corroborated in many aspects by the trial
record itself, might in itself provide sufficient grounds for
clemency. However, two fatal flaws in the clemency process sadly
intervened which underscore both the inappropriateness of the death
penalty in Beardslee's case and the dangers that compelling evidence
in mitigation of the penalty will be ignored or disregarded, or may
even remain unknown to key decisionmakers -- whether at the trial
level, before an appellate court, or in the final forum of a clemency
proceeding.

Strictly speaking, to say that the Governor "erred" in a clemency
proceeding is generally a kind of metaphor rather than a legal
assertion, since the Governor's power to grant clemency is a matter of
grace rather than of legal right. However, for observers familiar both
with the tradition of executive clemency in California as practiced
and analyzed by a figure such as Governor Pat Brown, and with the
legal and constitutional principles of death penalty cases as they
have evolved in California and throughout our Nation in the last 50
years or so, there are relevant standards by which a Governor's
reasoning and result can be evaluated, and possibly perceived as
seriously mistaken.

By these criteria, Governor Schwarzenegger was seriously mistaken in
approaching the issue of _clemency_, or more specifically the
commutation of Beardslee's death sentence to a term of life without
parole, as if the issue were one of legal insanity, as suggested in
the Governor's statement denying clemency, helpfully made available in
the comprehensive study of Carter and Moylan:

                  "The evidence supporting Beardslee's application
                   suggests that he suffers from a mental impairment
                   that has resulted -- at least in part -- from
                   serious injuries that he sustained prior to the
                   murders. There is also some reason to believe that
                   his mental impairment has existed since birth. But
                   we are not dealing here with a man who is so
                   generally affected by his impairment that he cannot
                   tell the difference between right and wrong."[116]

The standard of being to "tell the difference between right and wrong"
-- one traditional test of legal sanity -- would indeed be relevant if
the issue were Beardslee's legal responsibility or guilt for the
murders of Patty Geddling and Stacy Benjamin. Here, however, that
guilt was not the relevant issue, but rather the merits of showing
some mercy by reducing Beardslee's punishment to LWOP. 

Could this misunderstanding by the Governor or his advisors reflect,
at some level, what has here been termed "the illusion of impunity":
the idea a sentence of LWOP somehow lets a murderer "get away with his
or her crime," and so should be subject to the same standard as an
acquittal by reason of insanity? Whatever the explanation, the result
as in Manny Babbitt's case was a fatal miscarriage of justice.

Further, Beardslee had asked the Governor to authorize an MRI or
similar scientific test to assess objectively the evidence for and
extent of brain damage both from the known head trauma incidents
(especially the accident with the falling tree on 20 January 1965),
and possibly from earlier events during fetal development, infancy, or
early childhood as hypothesized by Dr. Ruben C. Gur. Such a procedure
would be a 21st-century update on the EEG and other medical tests
which Governor Pat Brown had frequently ordered and scrutinized four
decades and more earlier in approaching clemency decisions.

However, Governor Schwarzenegger responded as follows:

                  "Looking back in time to the state of Beardslee's
                   mind on April 24, 1981, his counsel urge that I
                   grant a reprieve to allow him to be administered a
                   Magnetic Resonance Imaging or similar examination.
                   But such a diagnostic tool is only a `snapshot' of
                   a person's brain at a particular time, and it is
                   questionable that such an examination would reveal
                   information that could reliably form the basis for
                   an appraisal of the condition of Beardslee's brain
                   more than twenty three years ago. Moreover, while
                   such a diagnostic tool may show anatomic injury to
                   Beardslee's brain, the injury may not tell us
                   anything about his behavior."[117]

If Beardslee had been seeking an outright pardon for the two murders
on the basis of his legal insanity at the time of the crimes, then the
Governor's studied skepticism might not be inapposite. For purposes
merely of commuting his sentence to LWOP (while holding him fully
guilty and legal accountable!), however, evidence of significant brain
damage using state-of-the-art diagnostics could further underscore the
reality of Beardslee's history of head trauma and evidence of mental
or emotional disturbance.

A current MRI test, like the older EEG tests used by Governor Brown,
indeed is not a time machine that can recreate a defendant's precise
neurological status or state of mind at the time of a crime. However,
evidence of anatomic and functional abnormalities which can be
reasonably assumed to have been present at the time of the crime may
give enough information to support a finding of psychological
mitigating factors calling for a sentence of LWOP rather than death.
Since Governor Brown's long and fruitful tenure in office,
developments in death penalty jurisprudence both on state and national
levels have clarified the point that such factors, although falling
well short of legal insanity, can call compellingly for a penalty of
LWOP rather than death.

In holding the proposed MRI or similar test to be unwarranted, and
denying clemency, Governor Schwarzenegger again invoked language
suggesting the traditional criteria for legal insanity:

                  "Nothing in Beardslee's application, supporting
                   papers, or testimony on his behalf before the Board
                   convinces me that he did not understand that he had
                   committed two grisly murders and that his decision
                   to take those actions was wrong. Clemency is not
                   designed to undo the considered judgment of the
                   people in favor of the death penalty, but to
                   prevent the miscarriage of justice."[118]

The Governor's logic seems to hold that if Beardslee knew the nature
and quality of his homicidal acts, and that they were wrong, then
executing him would not be a "miscarriage of justice" -- regardless of
mitigating neurological injuries and psychological factors falling
short of insanity which may cry out for mercy under the letter and
spirit of California law as well as the equitable judgment of an
executive such as Governor Brown ready to temper justice with mercy in
appropriate cases.

The reference to "the considered judgment of the people in favor of
the death penalty" is especially poignant in Beardslee's case, given
the jury's morally agonizing process of deliberation both as indicated
by the trial record and as confirmed in more detail by jurors
submitting affidavits for the clemency proceedings. As Robert
Martinez, who included a statement in favor of clemency as well
authorization for an MRI or similar test, wrote:

                   "At the time of Mr. Beardslee's trial, the science
                    and technology we have now was not available. I
                    knew that something was not right with
                    Mr. Beardslee, but I just did not know what it
                    was. Information about Mr. Beardslee's brain
                    danage would have been very important to whether
                    the jury would have sentenced him to death. This
                    kind of information would have made a difference
                    to me, and if would have helped me to stay on the
                    side of life without the possibility of parole for
                    Mr. Beardslee. I also think it would have helped
                    the other jurors who were struggling with the
                    decision and would have made it more difficult for
                    the man who was arguing for us to give
                    Mr. Beardslee the death penalty to convince myself
                    and the other nine jurors to change our vote from
                    life to death."[119]

Another juror, Peter Meffert, did not take a position in his affidavit
on the question of clemency itself, but corroborated the account of
Martinez as to some details of the deliberative process while
supporting authorization for an MRI or the like:

                  "If we had been presented with information about
                   Mr. Beardslee's brain damage, the jurors would have
                   been interested in learning about it and how it
                   affected him. We would have considered it in our
                   deliberations. At one point, the jury was split ten
                   to two in favor of giving him life without the
                   possibility of parole. Further information that
                   explained how Mr. Beardslee's mental illness
                   affected him would have been helpful to us. We
                   talked about Mr. Beardslee's future dangerousness
                   and we were worried about him hurting others if we
                   let him live. The potential for him to cause harm
                   to others was a factor for us when we decided to
                   give him the death penalty for one of the
                   victims."[120]

The jury's focus on the issue of Beardslee's potential for future
violence brings us to a final factor of which the jury was not and
could not be aware when it confronted its life or death decision in
January of 1984, and which led former Warden Daniel Vasquez of San
Quentin Prison to write a letter compellingly urging clemency:
Beardslee's nonviolent and indeed outstanding record at the prison
during his two decades on Death Row.

Before considering this point more closely, we may observe Governor
Schwarzenegger's terse response to former Warden Vasquez and others:

                  "Beardslee also argues that his model behavior for
                   years in prison warrants mercy. While I commend
                   Beardslee for his prison record and his ability to
                   conform his behavior to meet or exceed prison
                   norms, I am not moved to mercy by the fact that
                   Beardslee has been a model prisoner. I expect no
                   less."[121]

While the contribution Beardslee has made to the safety and well-being
of the community of prisoners and correctional staff at San Quentin
may have been insufficient to move this Governor, there are two
cardinal reasons why it should move us to question the validity of an
institutional culture which would discount this record.

First of all, juror Meffert's account confirms what might otherwise be
our intuitive guess that concerns about future dangerousness played a
central role in the verdict for death. Beardslee's actual record at
San Quentin not only shows the mistaken nature of these concerns --
in the setting of an appropriately structured prison environment, one
might prudently add, the setting under which he would have been
confined for his natural life under an LWOP sentence -- but also his
realized rehabilitative potential. The jury's concerns reflected in
its notes and earnest questions had been answered by the voice of
experience over a period of two decades.

In fact, evidence of a defendant's good behavior or positive
contributions to society while in custody after committing a capital
offense is a mitigating factor which a penalty jury has a right and
obligation to hear and weigh in its decision, as held by the United
States Supreme Court in _Skipper v. South Carolina_ (1986), 476
U.S. 1.

To borrow the words of Governor Schwarzenegger, if a jury or trial
judge is obliged to consider and weigh such evidence -- especially in
a case such as Beardslee where future dangerousness was a focus for
the prosecutor and jury alike -- then when a Governor considers
clemency the people of California should "expect no less."

Indeed juror Martinez noted Beardslee's record as a model prisoner in
his own plea for clemency:

                  "At the time of the sentencing, the jury almost
                   sentenced Mr. Beardslee to life imprisonment
                   without the possibility of parole. If we had known
                   about Mr. Beardslee's brain damage and had over
                   twenty years of his excellent record in prison, he
                   would not have been sentenced to death. The fair
                   and just action in his case is to commute his
                   sentence."[122]   

The second cardinal reason, closely allied with the first, was stated
forcefully by former Warden Vasquez: a prisoner such as Beardslee who
not merely fails to fulfill a prosecutor's dire concerns about future
violence, but actively contributes to the security of the prison
community in which he lives, is a valuable asset to society and should
not be killed.

Daniel Vasquez, who served as Warden of San Quentin from 1983 to 1993,
had been "up close and personal" with the death penalty, officiating
after a 25-year period without executions in California at the lethal
gassings of Robert Alton Harris (21 April 1992) and David Edwin Mason
(24 August 1993). During these last two years of his tenure, he also
assisted the Attorney General in evaluating the feasibility of lethal
injection as an alternative method of execution in California, an
investigation which included his witnessing of an execution by this
method in Texas.

Unlike a number of wardens, notably including his predecessor Clinton
Duffy at San Quentin, who have drawn upon their own experiences in
administering capital punishment as one basis for strenuously opposing
it, Vasquez noted in his letter to the Governor that he was a
supporter of the death penalty:

                  "It is only in extraordinarily rare cases that I
                   believe clemency is appropriate. Because
                   Mr. Beardslee has demonstrated exceptional
                   adjustment to prison and has contributed to the
                   safety of correctional officers, I believe that
                   commutation of his death sentence is
                   warranted."[123]

One paragraph of the former Warden's statement sums up his main point:

                  "Mr. Beardslee has been a model prisoner during his
                   twenty-plus years of incarceration at San Quentin.
                   at San Quentin. In no other case have I ever seen
                   such a stark contradiction between what the
                   prosecutor argued at trial -- that Mr. Beardslee
                   was so dangerous to the prison staff that he should
                   be put to death -- and what has come to pass, which
                   is that Mr. Beardslee has been a model inmate.
                   Unquestionably, he has faithfully followed
                   institutional rules and has been trusted by both
                   jail and prison authorities, the very persons whom
                   the prosecutor opined would be threatened if he was
                   sentenced to life without the possibility of
                   parole."[124]

In referring to Beardslee's being trusted "by jail and prison
authorities," former Warden Vasquez alluded to an earlier episode at
the San Mateo County Jail where Beardslee served three years while
awaiting and then undergoing trial for the murders of Patty Geddling
and Stacy Benjamin:

                  "Remarkably, although Mr. Beardslee was charged with
                   capital murder, he was assigned to work in the
                   county jail kitchen. While working there, he
                   reported a missing kitchen knife to jail staff,
                   thereby helping staff avert a possible assault or
                   homicide."[125]

Having arrived at San Quentin under sentence of death, Beardslee
quickly earned a high rating with the staff, and qualified for a
special work program -- something very difficult for a Death Row
prisoner to do. His responsibilities were considerable, and promoted
the safety and security of prisoners and staff alike:

                  "Mr. Beardslee was assigned the duties of unit clerk
                   for the custody staff of south block unit Donner,
                   which housed security housing unit maximum inmates
                   at that time. As clerk, Mr. Beardslee wrote reports
                   and reviewed yard assignments. He regularly revised
                   staff when an assignment error would cause a
                   security problem for staff, inmates, and the
                   institution."[126]

Emphasizing that under a sentence of LWOP there would be no risk of
Beardslee "ever being released from the structured prison environment
in which he excels," Daniel Vasquez spoke from personal experience as
the Warden of San Quentin for a long and eventful decade, as well as
subsequently at other correctional institutions:

                  "Donald Beardslee is the rare inmate. He is a true
                   asset to the safety and smooth running of the
                   institution. Recognizing his laudatory adherence to
                   prison regulation and contribution to the safety of
                   prison staff and other inmates not only takes into
                   account the historical record and current
                   attributes of the person whom the State seeks to
                   execute, but also best guarantees the safety of
                   those living and working on death row. Killing him
                   would be a shame."[127]

Sadly, neither this intervention on Beardslee's behalf by former
Warden Vasquez, nor the efforts by others ranging from this prisoner's
family members and friends to legal counsel and citizen-advocates from
the general public, availed to avert the shame of another needless
killing. This killing, conducted on 19 January 2005 in the name of the
people of California, compounded rather than lessened the tragedy of
the murders of Patty Geddling and Stacy Benjamin -- and also, of
course, of the earlier murder in Missouri of Laura Griffin.

What lessons can we learn from these tragedies? One clear lesson is
that here, as in the case of Manny Babbitt, mitigating factors
relating to mental illness and/or traumatic brain injury were either
disregarded or failed to carry the compelling they should have at
various levels of the system, emphatically including executive
clemency, our main focus here.

In the Beardslee case, two factors should have energized the Governor
and pointed to the appropriate use of clemency: the agonized
deliberations of the jury, as reflected in the trial record and
further recounted in juror affidavits; and Justice Mosk's forceful
dissent in the decision of the automatic appeal to affirming a death
sentence for Donald Jay Beardslee, and only this one defendant, when
others including Frank Rutherford, the evident mastermind of the
grisly scenario, received prison terms.

A California governor might not wish to go so far as Governors Alfred
E. Smith (1923-1928) and Herbert H. Lehman (1933-1942), who followed a
policy where "death sentences were routinely commuted every time one
or more Court of Appeals judges dissented from a ruling that affirmed
a conviction"[128] -- a policy that might now apply to dissents
regarding the equal critical issue of penalty in a capital case. 
However, when dissents pertain to matters directly relevant to the
equities of commuting a death sentence to LWOP, a Governor should take
special notice.

In Beardslee's case, Justice Mosk's dissent focused squarely on an
issue which has traditionally been vital in executive clemency
decisions also: equal justice under law, a prime goal of Governor Pat
Brown and his assistant Arthur Alarcon in comparing cases from
different counties. Here, a more wide-ranging statewide comparison of
this kind was unnecessary. As the Governor's decision denying clemency
to Beardslee itself notes, albeit in a bracketed statement:

                  "[Frank Rutherford by all accounts appears to be the
                   evil protagonist in this tragedy. He was sentenced
                   to life in prison without the possibility of parole
                   for the murder of Stacy Benjamin. He died in
                   prison."[129] (Brackets in original)  

Justice Mosk's dissent should have rung a bell of warning for the
Governor and his clemency advisors, cautioning that Beardslee's death
sentence might be disproportionate. When the difficulty of the penalty
jury in reaching a verdict on Beardslee's sentence is taken into
account, and especially the likelihood that a number of jurors who
initially favored LWOP may have been swayed by what proved to be
illusory concerns about future dangerousness while serving that
mandatory minimum sentence, then commutation becomes the logical and
responsible choice.

As in the Babbitt case, two elements of institutional culture in the
clemency system, not necessarily specific to any particular governor
but rather applying across administrations and party lines, appeared
to thwart an equitable result, leading to unjust executions.

First, the "illusion of impunity" led governors and advisors almost to
equate the commutation of a death sentence to LWOP and the granting of
a parole absolving a defendant from criminal responsibility or
accountability. In fairness, one might note that Governor
Schwarzenegger's rhetoric in his decision denying clemency to
Beardslee reflects this kind of view rather less explicitly than do
some of the decisions of his immediate predecessors as discussed
above. However, in defining the kind of mitigation it might take to
"move" or "inspire" him "to mercy" -- as the Governor himself frames
the issue[129] -- he sets the bar so high that the practical result is
much the same: an erroneous and unjust execution.

More specifically, Governor Schwarzenegger seems to take legal
insanity or something close to it as the standard for mitigating
evidence of mental illness or brain damage that might actually justify
a commutation to LWOP. As in the Babbitt case also, this is literally
as well as figuratively a fatal flaw in a procedure for deciding
life or death.

To set these issues in perspective, let us imagine Governor Pat Brown
confronting the Beardslee case. Certainly he would take note of the
two murders of which the prisoner was convicted, and of his very major
role in actually inflicting the fatal wounds on both Patty Geddling
and Stacy Benjamin -- as well as the previous conviction in MIssouri
for the murder of Laura Griffin. However, he would doubtless also take
an interest in the prisoner's documented traumatic brain injury, and
the jury's agonized verdict after taking great interest in his
mitigating psychological problems. Justice Mosk's dissent on the issue
of relative culpability vis-a-vis other defendants spared the death
penalty, and the intervention of former Warden Vasquez, would likely
have a telling effect on this great figure in California history.

The difference in institutional culture between Governor Brown's era
and our own might be summed up as a distinction between granting
clemency when there is serious doubt for the Governor about the
appropriateness of an execution (aside from a chief executive's
general opposition to the death penalty, as Brown would add, and does
in his memoirs); and granting it only in cases, mostly hypothetical,
where an execution is inappropriate almost beyond any reasonable
doubt.

Considering the cases of both Manny Babbitt and Donald Jay Beardslee,
we can reach another sobering conclusion: proposals to address the
problems of California's death penalty system by limiting the
substantive range of special circumstances making a defendant
death-eligible might serve to reduce the number of unjust executions,
but not to avoid them.

For Manny Babbitt, who killed a single victim, Leah Schendel, in the
course of a burglary and robbery in which his beating of the victim
may not have been with a specific or premeditated intent to kill,
narrowing the range of special circumstances for death-eligibility
might indeed have made a difference. The age of the victim, 78 years,
might quite legitimately be viewed as an aggravating factor; but it
remains a disturbing if moot question whether the factor of race in
this fatal assault by an African-American defendant against an
evidently Euro-American victim may have played some role in the long
chain of decisions leading to death rather than LWOP. 

Just as Babbitt's precise mental state at the time of Leah Schendel's
killing, while of great interest in assessing this Vietnam veteran's
degree of moral culpability, did not alter the fatal result, so
irrational and inarticulate perceptions of race of which a
decisionmaker may not be fully aware, much less embrace as a
deliberate basis for policy, can nevertheless exert a subtle influence
swaying the process toward an outcome of execution.

Limiting the range of special circumstances triggering eligibility for
the death penalty might well save the life of a defendant like
Babbitt, but fail to prevent the unjust execution of a defendant like
Beardslee. Proposals to narrow the scope of death-eligibility
typically retain multiple murder as a special circumstance within the
net: and Beardslee was clearly guilty of the murders of both Patty
Geddling and Stacy Benjamin.

What is equally essential is addressing "mitigation-side" issues such
as Beardslee's history of head trauma and evident mental illness; the
central role of Frank Rutherford in the web of criminality in which
Beardslee became fatefully entangled; the defendant's exemplary and
valuable contributions to prison security and quality of life; etc.

Whether at the trial level, in the forums of appellate review, or in
the arena of executive clemency decisions (which, as Governor Pat Brown
frankly has related, may be subject to various political factors and
calculations), the piecemeal solution of attempting to incrase the
sensitivity of decisionmakers to these compassionate factors is both
inefficient and expensive in practice. While the effort is laudible,
it might best be carried a logical step further to a wholesale
solution which is efficient, thrifty, and more reliably just.

That solution is to abandon the curious quest to identify "the worst
of the worst" who violate society's laws, and then set out to kill
them. The very entertaining of an intent to kill a victim who is
powerless to resist, whether by private individuals or society at
large, may blunt or disturb the very sensibilities which are essential
in rightly appreciating the uniquely compassionate or humanizing
factors presented by each member of the community, including even the
worst criminals.

This does not mean that lethal vengeance under the color of law should
yield to a reign of naivete -- something hardly shown by a death
penalty opponent such as Governor Pat Brown, who evinces in his
memoirs an intimate familiarity with the reality of violent crime and
the methods of law enforcement used to keep it in check. The special
circumstances to first degree murder will continue in California to
define the "worst of the worst" offenses making an offender subject to
lifelong confinement without the possibility of parole. The Department
of Corrections and Rehabilitation will retain its responsibilities
with these prisoners serving terms of LWOP -- as with all prisoners --
to assess the mitigating human features and potentials of each
individual, and promote their realization within the constraints set
by the requirements of safety and security for prisoners, staff, and
the general public alike.

Nor will a California without executions be a California without human
errors, sometimes tragic ones, in the administration of justice. 
Showing that Manny Babbitt and Donald Jay Beardslee should not have
been executed is to probe only the last and most simply correctible
level of systemic failure, and marks the beginning rather than the end
of a fuller inquiry seeking to learn from these cases. Appreciating
the futility and wrongness of killing Babbitt and Beardslee is the
beginning of wisdom: but we should strive to delve further, and ask
how the homicidal acts of these offenders might have been prevented.

Babbitt, for example, before he killed Leah Schendel and gravely
assaulted another woman, had spent time in an institution for the
criminally insane; and his family were aware of his deteriorating
condition, evidently linked both to a serious illness diagnosed as
paranoid schizophrenia, and to post-traumatic stress disorder (PTSD)
he suffered from as a result of his heroic service in Vietnam. How
might community mental health services be made available in such
circumstances in order to _prevent_ a serious assault or even
homicide?

Beardslee's killing of Laura Griffin in Missouri seems to have come
"out of the blue sky," since although he had suffered major head
trauma and shown some psychological problems while in the Air Force,
he had no previous record of violence. Once he had surrendered himself
to the police and confessed to the murder, however, society was on
notice of the danger he might pose in the future.

Indeed, some of the psychiatric evaluations during his prison term in
Missouri call special attention to the fact that his homicidal episode
was still unexplained, giving the authorities good reason both to
provide him with adequate therapy (as had been promised as part of the
plea agreement) and to take care in considering parole while his
reasons for the murder remained a mystery.

Once paroled to California, Beardslee clearly warranted both adequate
psychological support -- which was terminated due to a failure of the
system -- and close supervision, which was relaxed through a clerical
error or the like. These failures paved the way for the scenario which
evolved over some weeks in early 1981 leading from his involvement
with Ricki Soria to entanglement with her companions, including Frank
Rutherford, who would co-opt him into a plot against Patty Geddling
and Stacy Benjamin which, possibly as designed from the beginning,
culminated in the brutal and premeditated murders of both these
women.

To eliminate the violent and corrosive distraction of the death
penalty is only the first step in focusing squarely and soberly on
these urgent questions of prevention and public safety. That, perhaps,
is the most important lesson of these two cases which we have treated
in some detail.


------------------------------------------
4.3. Retrospective miscarriages of justice
------------------------------------------

As long as human beings are actually executed under a human system of
law, and therefore a system subject to change and evolution, there is
no way for even the most scrupulous jurist or chief executive to
prevent what may be termed retrospective miscarriages of justice:
occasions where a prisoner is executed, and within a relatively few
years the law changes so as to make that execution invalid or even
unconstitutional as evaluated under the new standards.

This situation becomes yet more unacceptable when, even in the fateful
days leading up to the execution, it is very clear that the legal
validity of the capital conviction or death sentence is a close and
often hotly disputed issue, with a change of law in the prisoner's
favor within a relatively short period of time an easily forseeable
outcome. Unfortuately, an execution forecloses the possibility of
applying the new understanding of the law to the prisoner in
question.
























                   









































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1. 



101. Testimony of Bill Babbitt, Murder Victims' Families for Human
Rights, to the California Commission for the Fair Administration of
Justice, 28 March 2008, available at:
<http://www.ccfaj.org/documents/reports/dp/expert/Babbitttestimony.pdf>.