Chief Justice Tani Cantil-Sakauye, one of the high court’s more conservative members, says the death penalty is no longer working for the state.

By Maura Dolan, Los Angeles Times
December 24, 2011

Reporting from San Francisco— Chief Justice Tani Cantil-Sakauye, who heads the state’s judicial branch and its highest court, said in an interview that the death penalty is no longer effective in California and suggested she would welcome a public debate on its merits and costs.

During an interview in her chambers, as she prepared to close up shop for the holidays, the Republican appointee and former prosecutor made her first public statements about capital punishment a year after she took the helm of the state’s judiciary and at a time when petitions are being gathered for an initiative to abolish the death penalty.

“I don’t think it is working,” said Cantil-Sakauye, elevated from the Court of Appeal in Sacramento to the California Supreme Court by former Gov. Arnold Schwarzenegger. “It’s not effective. We know that.”

California’s death penalty requires “structural change, and we don’t have the money to create the kind of change that is needed,” she said. “Everyone is laboring under a staggering load.”

In response to a question, she said she supported capital punishment “only in the sense I apply the law and I believe the system is fair…. In that sense, yes.”

But the chief justice quickly reframed the question.

“I don’t know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?”

Cantil-Sakauye’s comments suggest a growing frustration with capital punishment even among conservatives and a resignation that the system cannot be fixed as long as California’s huge financial problems persist.

Her predecessor, retired Chief Justice Ronald M. George, was similarly disheartened. A former prosecutor who defended the state’s death penalty before the U.S. Supreme Court, George concluded in his later years on the California Supreme Court that the system was “dysfunctional.”

Cantil-Sakauye, 53, alluded to the proposed ballot measure to replace the death penalty with life without possibility of parole but declined to say whether she supported that plan.

“That really is up to the voters or to the Legislature,” she said, asking whether the criminal justice system can “make better use of our resources.”

In her first year on the state high court, Cantil-Sakauye has more often sided with its conservative justices than its more moderate jurists, said Santa Clara University law professor Gerald Uelmen, an expert on the court. He said her early track record shows her as more conservative than George, who was a key swing vote on the seven-member court.

Uelmen called the chief justice’s comments on the death penalty “powerful” and said they confirmed what he has been hearing privately — that even the conservatives on the California Supreme Court have grown disillusioned with the state’s capital punishment system.

Men and women on death row are far more likely to die of old age than by the executioner’s needle. Litigation has brought executions to a halt, and there is a shortage of lawyers willing to take capital cases. Inmates must wait an average of five years before getting lawyers to bring their first appeal.

Cantil-Sakauye has written a ruling affirming a death sentence and joined other justices’ decisions upholding capital sentences since her elevation to the high court last January. Her biggest ruling came in a Proposition 8 case in which she said initiative sponsors have the right to defend their ballot measures in court when state officials refuse to do so.

The chief justice indicated during the interview that she is probably still too new on the court for outsiders to assess her judicial philosophy. Most of her first year was dominated by administrative matters, particularly budget cuts, she said.

She spends more time with Justice Marvin R. Baxter than any other member of the court because he serves with her on the Judicial Council, the policymaking body for the judiciary, she said. Baxter is considered the court’s most conservative member.

Cantil-Sakauye took the reins of the court system in the midst of crisis. She was in office only a few days when a state audit was released blasting the administrative office of the courts for mismanaging a costly computer system, casting the organization she presides over as financially reckless, secretive and bloated.

Citing the audit, two legislators publicly called on her to fire William Vickrey, then head of the Administrative Office of the Courts, which runs the court system. She bristled at the interference, calling the demand “a serious attempt to interfere with judicial branch governance and my ability to evaluate the AOC’s management team.”

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