Capital punishment in California

Capital punishment is a legal penalty in the U.S. state of California. However, the penalty has not been carried out in that state since 2006, due to a standing federal court order issued that year against the practice, and a 2019 moratorium on executions ordered by Governor Gavin Newsom. The litigation resulting in the court order has been on hold since the promulgation of the moratorium. Should the moratorium end and the freeze conclude, executions could resume under the current state law.

The state carried out 709 executions from 1778 until 1972 when the California Supreme Court struck down California's capital punishment statute in the case People v. Anderson.

, official California Department of Corrections and Rehabilitation (CDCR) records show that there are 587 inmates awaiting execution in California, the lowest it has been since 2011, primarily due to suicide, death from other causes, fewer juries willing to sentence people to death, and resentencings by newly elected district attorneys, among other things. 18 of those with death sentences are women, held in general population at Central California Women's Facility (CCWF) in Chowchilla, with the other 569 inmates awaiting execution being men that are housed throughout the state, most having been transferred from the former death row at San Quentin State Prison.

California voters rejected two initiatives to repeal the death penalty by popular vote in 2012 and 2016, and they narrowly adopted in 2016 another proposal to expedite its appeal process. On August 26, 2021, the California Supreme Court upheld the state's death penalty rules though as of 2024 executions have yet to resume.

History

Pre-Furman and pre-Anderson history

The first known death sentence in California was recorded in 1778. On April 6, 1778, four Kumeyaay chiefs from a Mission San Diego area ranchería were convicted of conspiring to kill Christians and were sentenced to death by José Francisco Ortega, Commandant of the Presidio of San Diego; the four were to be shot on April 11. However, there is some doubt whether the executions actually took place.

Four methods have been used historically for executions. Until slightly before California was admitted into the Union, executions were carried out by firing squad. Upon admission, the state adopted hanging as the method of choice.

The penal code was modified on February 14, 1872, to state that hangings were to take place inside the confines of the county jail or other private places. The only people allowed to be present were the county sheriff, a physician, and the county District Attorney, who would in addition select at least 12 "reputable citizens". No more than two "ministers of the gospel" and no more than five people selected by the condemned could also be present.

1972 abolition of capital punishment

On April 24, 1972, the Supreme Court of California ruled in People v. Anderson that the state's current death penalty laws were unconstitutional. Justice Marshall F. McComb was the lone dissenter, arguing that the death penalty deterred crime, noting numerous Supreme Court precedents upholding the death penalty's constitutionality, and stating that the legislative and initiative processes were the only appropriate avenues to determine whether the death penalty should be allowed. The majority's decision spared the lives of 105 death row inmates, including Sirhan Sirhan (assassin of Robert F. Kennedy) and serial killer Charles Manson. McComb was so outraged by the decision that he walked out of the courtroom during its reading.

Following the ruling, the Constitution of California was modified to reinstate capital punishment under an initiative called Proposition 17. In 1973 a new statute was subsequently enacted, making the death penalty mandatory for a number of crimes including first degree murder in specific instances, kidnapping during which a victim dies, train wrecking during which a victim dies, treason against the state, and assault by a life prisoner if the victim dies within a year.

In a later decision in 1976, the Supreme Court of California again held the state's death penalty statute was unconstitutional as it did not allow the defendant to enter mitigating evidence. A further 70 prisoners had their sentences commuted following this. The next year, the statute was updated to deal with these issues. Life imprisonment without possibility of parole was also added as a punishment for capital offenses. A later change to the statute occurred in 1978 after Proposition 7 was enacted. This gave an automatic appeal to the Supreme Court of California, which would directly affirm or reverse the sentence and conviction without going through an intermediate appeal to the California Courts of Appeal.

In 1983, The State Bar of California created The California Appellate Project as a legal resource center to implement the constitutional right to counsel for indigent persons facing execution. At around the time of its founding, Michael Millman became the director of CAP. Millman served as director of CAP for 30 years. CAP oversees the efforts to assist private lawyers representing the more than 700 people on California's death row.

This included chief justice Rose Bird, who was removed by a margin of 67 to 33 percent. She reviewed a total of 64 capital cases appealed to the court, in each instance issuing a decision overturning the death penalty that had been imposed at trial. She was joined in her decision to overturn by at least three other members of the court in 61 of those cases. This led Bird's critics to claim that she was substituting her own opinions and ideas for the laws and precedents upon which judicial decisions are supposed to be made.

Resumption of executions and introduction of lethal injection

thumb|Robert Alton Harris later became the subject of a [[Procedure 769, witness to an execution|Dutch documentary.]]

On April 21, 1992, the state carried out its first execution since 1967 by putting to death Robert Alton Harris for the murders of two teenage boys in San Diego. A series of four stays of execution issued by the Ninth Circuit appeal court delayed the execution, causing the U.S. Supreme Court to intervene to vacate the stays and prohibit all other federal courts from any further intervention, ruling that the lower court decisions caused "abusive delays" and were "attempts to manipulate the judicial process".

The available methods were expanded to two in January 1993, with lethal gas as the standard but with lethal injection offered as a choice for the inmate. Serial killer William Bonin was the first person to be executed under these new laws, on February 23, 1996. Thirteen people have been executed in California since the death penalty was reinstated in 1977, though 184 other people have died on death row from other causes (32 of them from suicide) as of May 24, 2026.

Lethal injection litigation

thumb|300px|The lethal injection room at [[San Quentin State Prison prior to its disassembly in March 2019. It was completed in 2010 and was never used.|left]]

During the term of Arnold Schwarzenegger as governor, the state carried out two prominent executions in less than five weeks, with Stanley Tookie Williams in December 2005 and Clarence Ray Allen in January 2006.

A month later, in February 2006, U.S. District Court Judge Jeremy D. Fogel blocked the execution of convicted murderer Michael Morales because of a lawsuit against the lethal injection protocol. It was argued that if the three-drug lethal injection procedure were administered incorrectly, it could lead to suffering for the condemned, potentially constituting cruel and unusual punishment. The issue arose from an injunction made by the U.S. 9th Circuit Court of Appeals which held that an execution could only be carried out by a medical technician legally authorized to administer intravenous medications. The case led to a de facto moratorium of capital punishment in California as the state was unable to obtain the services of a licensed medical professional to carry out the execution.

When the state planned the execution of Albert Greenwood Brown in late 2010, Judge Fogel declined to issue a stay, citing the efforts the state made to comply with his earlier ruling. Nonetheless, the Ninth Circuit disagreed and vacated the judgment, further delaying executions in the state.

Studies

The state supreme court proposed in 2007 that the state adopt a constitutional amendment allowing the assignment of capital appeals to the courts of appeal to alleviate the backlog of such cases.

Several victims' families testified to the California Commission on the Fair Administration of Justice in opposition to capital punishment, explaining that while they had suffered great losses, they did not view retribution as morally acceptable, and that the high cost of capital punishment was preventing the solving of cold cases.

The California Commission on the Fair Administration of Justice in 2008 concluded after an extensive review that under the current death penalty system, death sentences are unlikely ever to be carried out (with extremely rare exceptions) because of a process "plagued with excessive delay" in the appointment of post-conviction counsel and a "severe backlog" in the California Supreme Court's review of death judgments. According to CCFAJ's report, the lapse of time from sentence of death to execution constitutes the longest delay of any death penalty state, and the Commission urged reform to expedite the appeal process.

Another study released in 2011 found that since 1978 capital punishment has cost California about $4 billion. A 2011 article by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, and law professor Paula Mitchell, concluded that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."

Proposition 34, the SAFE California Act

A coalition of death penalty opponents including law enforcement officials, murder victims' family members, and wrongly convicted people launched an initiative campaign for the "Savings, Accountability, and Full Enforcement for California Act," or SAFE California, in the 2011–12 election cycle. The measure, which became Proposition 34, would replace the death penalty with life imprisonment without the possibility of parole, require people sentenced to life in prison without the possibility of parole to work in order to pay restitution to victims' families, and allocate approximately $30 million per year for three years to police departments for the purpose of solving open murder and rape cases. Supporters of the measure raised $6.5 million; opponents of Proposition 34 raised $1 million.

The proposition was defeated with 52% against and 48% in favor.

July 2014 and November 2015 federal decisions

On July 16, 2014, federal judge Cormac J. Carney of the United States District Court ruled that California's death penalty system is unconstitutional because it is arbitrary and plagued with delay. The state has not executed a prisoner since 2006.

2015 state lawsuit

In February 2015, Sacramento County Superior Court Judge Shelleyanne Chang ruled that state law compelled the Department of Corrections and Rehabilitation to develop a way to execute inmates by lethal injection. Later that year a new protocol providing a single-drug execution method was developed to comply with the ruling.

This was the result of a lawsuit brought by family members of murder victims. Supporters of capital punishment blamed the nearly three-year wait for a new protocol on "lack of political will"

2019 moratorium on capital punishment

Governor Gavin Newsom promulgated Executive Order N-09-19 on March 13, 2019. Executive Order N-09-19 orders that:

The Executive Order granted everybody sentenced to death under California law a reprieve while also eliminating any mechanism that the state could use to execute an individual by repealing the lethal injection protocol adopted by the State of California. If the Executive Order was rescinded and all lawsuits challenging the use of capital punishment in the state are resolved executions would not resume immediately since the state would need to adopt a new execution protocol which requires time to do so. The Executive Order also closed the Death Chamber at San Quentin State Prison. The Death Chamber was subsequently dismantled by the California Department of Corrections and Rehabilitation. Although some pro-death penalty advocates have stated otherwise, no person sentenced to death in California was released or had their conviction or sentence altered due to the promulgation of the Executive Order.

People v. McDaniel and possible striking down of capital punishment

Donte McDaniel, a condemned inmate, was sentenced to death in 2004 and has challenged his death sentence by challenging California's sentencing statutes that only require convictions to be proven beyond a reasonable doubt and to be unanimous but not requiring either for sentencing decisions. Therefore, under current law, a defendant needs to be found guilty by all jurors beyond a reasonable doubt but the jury does not need to be unanimous to find true any aggravating circumstances that makes one eligible to be sentenced to death, nor does the jury have to find those circumstances to be true beyond a reasonable doubt. If the Supreme Court of California rules in McDaniel's favor, hundreds of death sentences would be overturned and the court may strike down capital punishment in the state in its entirety. McDaniel has received the support of Governor Gavin Newsom along with the county district attorneys of Contra Costa, Los Angeles, San Francisco, San Joaquin, and Santa Clara counties, along with former Los Angeles County District Attorney Gil Garcetti in an amicus curiae brief filed with the court.

2019 Pause on Executions

In 2019, Gavin Newsom stated, "I will not oversee the execution of any person while Governor...Our death penalty system has been, by all measures, a failure." Since then, California has held a moratorium on executions and Newsom has done more work to ensure that people who were convicted of crimes "on the basis of race, ethnicity, or national origin," or those who were mentally incompetent, can have the possibility to receive relief from their convictions. As of 2023, he also has done work to move people in San Quentin Prison on death row into prisons throughout the state so they can be a part of the general population, rather than being isolated with those on death row.

2020 proposed constitutional amendment for the 2022 election

On December 7, 2020, Assembly members Marc Levine (D-10) and David Chiu (D-17) introduced Assembly Constitutional Amendment 2 to the California State Legislature. The constitutional amendment would have amended the constitution to prohibit the use of capital punishment as a punishment for any violations of law. The amendment was coauthored by Assemblymembers Laura Friedman (D-43), Mike Gipson (D-64), and Mark Stone (D-29), along with state senator Scott Wiener (D-11). The resolution died after it failed to advance to the Assembly floor from the Assembly Committee on Public Safety.

2021 state Supreme Court ruling

On August 26, 2021, efforts to overhaul California's death penalty were weakened after the California State Supreme Court unanimously ruled that current state law provided little legal support for any overhaul in the case of People v McDaniel.

Current legislation

Legal process

When the prosecution seeks the death penalty, the sentence is decided by the jury and must be unanimous. A death sentence is automatically considered to have been requested for reconsideration, and the judge must make a determination as to whether the "jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented."

A jury must unanimously find that one of the special circumstances outlined in the death penalty statute apply to the case. If the jury is not unanimous, the court will retry the question of whether the special circumstances that were not unanimously decided upon apply or not before a new jury. Subsequent retrials on issues not unanimously decided upon occur at the discretion of the court, which may alternatively impose a sentence of 25 years in prison.

Executions are carried out by lethal injection, but an inmate sentenced before its adoption may elect to be executed by gas inhalation instead. If one of these two methods is held invalid, the state is required to use the other method.

Capital offenses

California has one of the broadest lists of capital crimes and capital circumstances in the United States. The Penal Code provides for the possibility for a sentence of death for:

Of crimes against the person

first-degree murder with special circumstances
for financial gain (1)
the defendant had previously been convicted of first or second degree murder (2)
multiple murders (3)
committed using explosives (4); (6)
to avoid arrest or aiding in escaping custody (5)
the victim was an on-duty peace officer; federal law enforcement officer or agent; or firefighter (7); (8); (9)
the victim was a witness to a crime and the murder was committed to prevent them from testifying (10)
the victim was a prosecutor or assistant prosecutor; judge or former judge; elected or appointed official; juror; and the murder was in retaliation for the victim's official duties (11); (12); (13); (20)
the murder was "especially heinous, atrocious, or cruel, manifesting exceptional depravity" (14)
the murderer lay in wait for the victim (15)
the victim was intentionally killed because of their race, religion, nationality, or sexual orientation (a hate crime) (16)
the murder was committed during the committing of a robbery; kidnapping; rape; sodomy; performance of a lewd or lascivious act upon the person of a child under the age of 14 years; oral copulation; burglary; arson; train wrecking; mayhem; rape by instrument; carjacking; torture; poisoning (17)
the murder was intentional and involved the infliction of torture (18)
poisoning (19)
the murder was committed by discharging a firearm from a motor vehicle (21)
the defendant is an active member of a criminal street gang and was to further the activities of the gang (22)
train wrecking which leads to a person's death
fatal assault by a state prisoner under a life sentence, subject to the year and a day rule, if either of the following are true:
with a deadly weapon; or
with force likely to cause great bodily injury
Felony murder only when:
aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in the commission of a felony enumerated in above in enhancement 17, with reckless indifference to human life and as a major participant, which results in a death, even if the defendant is not the actual killer.

Due to the number of capital circumstances in California, almost every first-degree murder is punishable by death.

Of crimes against the state

treason against the state of California, defined as levying war against the state, adhering to its enemies, or giving them aid and comfort
perjury or subornation of perjury causing execution of an innocent person

Additionally, the Military and Veterans Code provides for possible capital punishment in either of the following if such act or acts, or failure to act, results in a death:

intentionally and maliciously destroying, impairing, injuring, interfering, or tampering with real or personal property with reasonable grounds to believe that such act will hinder, delay, or interfere with the preparation of the United States or any of the states from preparing for war, or any foreign nation which assistance by the United States is in connection with that nation's defense; or
intentionally and maliciously making or causing to be made or intentionally and maliciously omitting to note on inspection any defect in any article or thing with reasonable grounds to believe that such article or thing is intended to be used in connection with the preparation of the United States or any state for defense or for war, or for the prosecution of war by the United States, or with the rendering of assistance by the United States to any other nation in connection with that nation's defense, or that such article or thing is one of a number of similar articles or things, some of which are intended so to be used.

Current statistics

, official California Department of Corrections and Rehabilitation (CDCR) records show 587 inmates sentenced to death in California, the lowest it has been since 2011, primarily due to suicide, death from other causes, fewer juries willing to sentence anyone to death, and resentencing by newly elected progressive district attorneys, among other things. 19 of those so sentenced are women, held at Central California Women's Facility (CCWF) in Chowchilla.

By February 5, 2025, all but 9 of the male inmates had been moved out of San Quentin, with the last group expected to transfer after completing medical and psychiatric programs. All women on death row at Chowchilla had been moved to general population. Columnist Charles Lane went further, and proposed that murder related to a felony other than rape should no longer be a capital crime when there is only one victim killed.

In 2021, the California Committee on Revision of Penal Code unanimously voted to recommend that the Legislature abolish capital punishment in the state. A staff justified the vote by issuing a memorandum that states that "[e]liminating the death penalty is a critical step towards creating a fair and equitable justice system for all in California, as the ultimate punishment is plagued by legal, racial, bureaucratic, financial, geographic, and moral problems that have proven intractable."

Public opinion

thumb|Results on [[2012 California Proposition 34]] thumb|Results on [[2016 California Proposition 62]]

The Field Research Corporation found in February 2004 that when asked how they personally felt about capital punishment, 68% supported it and 31% opposed it (6% offered no opinion). This was a decrease from 72% support two years previous, and an increase from 63% in 2000. This poll was asked about the time that Kevin Cooper had his execution stayed hours before his scheduled death after 20 years on death row. When asked if they thought the death penalty was generally fair and free of error in California, 58% agreed and 32% disagreed (11% offered no opinion). When the results were broken down along ethnicity, of the people who identified themselves as African American, 57% disagreed that the death penalty was fair and free of error.

A poll in March 2012 found that "61% of registered voters from the state of California say they would vote to keep the death penalty, should a death penalty initiative appear on the November 2012 ballot" An August 2012 poll found that "support for Prop 34, which would repeal California's death penalty, fell from 45.5% to 35.9%."

A PPIC poll from September 2012 showed that 55% of all adults and 50% of likely voters prefer life in prison without the possibility of parole over the death penalty when given the choice.

A Field Poll in September 2014 showed that 56% support the death penalty, down from 69% three years earlier. Support for the death penalty in California had not been at this low a level since the mid-1960s.

A UC Berkeley Institute of Governmental Studies poll in 2019 found that 61% of California's registered voters supported the death penalty, with 39% opposed. However, this poll did not have an "undecided" option.

A UC Berkeley Institute of Governmental Studies poll in April 2021 found that 44% of California's registered voters supported a proposed 2022 constitutional amendment to abolish the death penalty, with 35% opposed and 21% undecided. 48% supported Governor Gavin Newsom's death penalty moratorium executive order, with 35% opposed.

{| class="wikitable sortable" style="width:75%;"

! rowspan=2 style="width:30%;"| County of conviction

! rowspan=2 style="width:30%;"| Inmates sentenced to death awaiting execution

! rowspan=2 style="width:40%;"| Notes

| Alameda

| align=center | 16

| Alpine

| align=center | 0

| Amador

| align=center | 1

| Butte

| align=center | 3

| Calaveras

| align=center | 0

| Colusa

| align=center | 2

| Contra Costa

| align=center | 11

| Del Norte

| align=center | 0

| El Dorado

| align=center | 4

| Fresno

| align=center | 12

| Glenn

| align=center | 0

| Humboldt

| align=center | 0

| Imperial

| align=center | 3

| Inyo

| align=center | 0

| Kern

| align=center | 26

| Kings

| align=center | 6

| Lake

| align=center | 1

| Lassen

| align=center | 0

| Los Angeles

| align=center | 174

| During the tenure of DA George Gascón (2020 - 2024) no death sentences were sought in LA County. He also made applications to re-sentence death row inmates to life imprisonment without parole, only 38 of which were successful.

The policy of not seeking death sentences ended after Nathan Hochman took office in December 2024.

| Madera

| align=center | 2

| Marin

| align=center | 2

| Mariposa

| align=center | 0

| Mendocino

| align=center | 0

| Merced

| align=center | 0

| Modoc

| align=center | 1

| Least populous county that has an outstanding capital conviction for a living person.

| Mono

| align=center | 0

| Monterey

| align=center | 4

| Napa

| align=center | 2

| Nevada

| align=center | 0

| Orange

| align=center | 58

| Placer

| align=center | 1

| Plumas

| align=center | 0

| Riverside

| align=center | 87

| Second-highest number of death sentences per capita among the 10 most populous counties in the state (around one death sentence per 29,000 residents)

| Sacramento

| align=center | 2

| San Benito

| align=center | 0

| San Bernardino

| align=center | 40

| San Diego

| align=center | 34

| San Francisco

| align=center | 0

| Most populous county with no inmate awaiting execution.

| San Joaquin

| align=center | 5

| San Luis Obispo

| align=center | 2

| San Mateo

| align=center | 8

| Santa Barbara

| align=center | 4

| Santa Clara

| align=center | 10

| Santa Cruz

| align=center | 0

| Shasta

| align=center | 5

| Sierra

| align=center | 0

| Siskiyou

| align=center | 0

| Solano

| align=center | 1

| Sonoma

| align=center | 3

| Stanislaus

| align=center | 8

| Sutter

| align=center | 0

| Tehama

| align=center | 0

| Trinity

| align=center | 0

| Tulare

| align=center | 16

| Tuolumne

| align=center | 1

| Ventura

| align=center | 16

| Yolo

| align=center | 2

| Yuba

| align=center | 0

Ethnicity

Number of condemned per ethnicity .