On Tuesday, November 6, California voters will go to the polls
to decide the fate of Proposition 34, an initiative to replace California's death penalty with a maximum sentence of life without parole. Supporters of the measure emphasize the dysfunction and cost of the death penalty, rather than the question of its morality. Those who are charged with its application also avoid the moral issue, asserting their duty to follow the law regardless of their personal views. Stanley Mosk struggled with this conflict throughout a career that spanned more than 60 years. First as Gov. Culbert Olson's executive secretary reviewing clemency petitions, then as a superior court judge in Los Angeles, then as California's attorney general, and finally as the longest-serving justice in the history of the California Supreme Court, Mosk, who died in 2001, played a central role in the enforcement of California's death penalty laws even as he remained an unequivocal opponent of the practice. The insights he shared may be of value to us today as we weigh the pros and cons of a momentous change in the law.
Judge Stanley Mosk sentenced only one man to death during his nearly two decades on the superior court. The case, he said, "had all the overtones of intrigue, love, sex, hate, rejection, frustration and finally violence." The defendant was John Russell Crooker Jr. A former law student and houseboy, Crooker stood accused of murdering Norma McCauley, a wealthy divorcee and mother of three, after she ended a stormy, clandestine romance with him.
Ten years before the United States Supreme Court decided the landmark case of Miranda v. Arizona
in 1966, Crooker's lawyer argued that his client's written confession should be thrown out as evidence because the police failed to warn him of his right to an attorney. Mosk ruled that the confession was admissible in evidence. The jury found Crooker guilty of first-degree murder and recommended that he be put to death. After the California Supreme Court upheld the death judgment, Judge Mosk set the date of execution for April 12, 1957. By a vote of 5 to 4, the U.S. Supreme Court affirmed Mosk's ruling, concluding that Crooker needed no reminder of his right to counsel since before the crime he had completed a year of law school.
Years later, Mosk confessed that the case made him extremely uncomfortable. "If we truly believe that only God renders such irrevocable decisions as life and death," he said, "then the judge who makes the pronouncement of the ultimate penalty is in fact playing God. He is ordering the elimination of a human being."
In 1958 Judge Mosk was elected attorney general in a Democratic landslide, which put him in charge of defending death sentences before the California Supreme Court. Crooker's petition for clemency was presented to newly elected Gov. Pat Brown, who commuted Crooker's sentence to life without parole. As Brown explained it: "I listened carefully to all they had to say, but what really made up my mind was a note from [Attorney General] Stanley Mosk in the report, stating that as the trial judge he would not object to a commutation of Crooker's sentence from death to life imprisonment. 'This defendant's crime arose out of relationship with the deceased under a set of circumstances that would not likely happen again,' Mosk wrote. 'He is an intelligent young man of some cultural attainment, and if personality defects could be cured or contained, he could in the distant future become rehabilitated and become a constructive member of society.' "
Eight years later, after receiving numerous reports of Crooker's rehabilitation, Brown once again commuted his sentence - to life with parole - and in 1972 Crooker was released.
After Crooker's release, Mosk, who by then sat on the Supreme Court, received an invitation to his wedding. Justice Mosk demurred, but he did send Crooker a note wishing him well, and every year after that he received a Christmas card from Crooker and his wife with an update on how they were doing. Mosk found one note particularly poignant. "I thought you would be pleased to know that Valerie and I have bought a house," the former death row inmate said. "It is the first home I have ever owned. I have been promoted by my employer in the Bay Area and am now earning a guarantee of $25,000 per year. Things are really going well for us. I wish you continued success in your career."
The year of Crooker's release,
there were 105 inmates on California's death row awaiting execution in the gas chamber at San Quentin Prison. They included Charles Manson, leader of the cult that committed the horrifying Tate-LaBianca murders in 1969; Sirhan Sirhan, who assassinated Robert F. Kennedy in 1968; and Gregory U. Powell, who was convicted of the 1963 murder of a Los Angeles police officer in an onion field near Bakersfield. That same year, People v. Anderson
(6 Cal. 3d 628 (1972)) presented the state Supreme Court with a broad challenge to the constitutionality of California's death penalty law. Murder defendant Robert Page Anderson argued that the death penalty was unconstitutional as both "cruel" and "unusual" under the state and federal constitutions. The court noted that the same issue was currently before the U.S. Supreme Court, but found it unnecessary to address the question of constitutionality under the federal Constitution because it concluded that California's death penalty law violated the state constitutional prohibition of "cruel or
unusual punishment." The February 1972 ruling did not come as a complete surprise, since nearly every death judgment reviewed by the court in the previous five years had been reversed. But the author of the opinion - Chief Justice Donald R. Wright - certainly surprised the man who appointed him, Gov. Ronald Reagan. At the statehouse, Reagan wasted no time denouncing the chief justice's opinion, which spared the lives of everyone then on death row, calling it "one more step toward totally disarming society in its fight against violence."
Anticipating just such a reaction, Justice Mosk and his fellow justices had sought to dissuade Chief Justice Wright from writing the opinion. As Mosk would later report, "We all said to him, 'Look Don, you were appointed by Governor Reagan. We know his attitude on the death penalty. We'll spare you the embarrassment of putting this out. One of us will be glad to do it, or we can put it out [unsigned] by the court and nobody will know who the author is.' " Wright, however, refused. "No, those are my views," he told Mosk. "I'm going to stand up and be counted."
Chief Justice Wright's opinion in Anderson
was couched in broad, sweeping terms: "We have concluded that capital punishment is impermissibly cruel. It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process. Our conclusion that the death penalty may no longer be exacted in California consistently with article I, section 6, of our Constitution is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members."
Thus the stage was set for Proposition 17, a fall ballot measure that would amend California's constitution by declaring the death penalty to be neither cruel nor unusual. On November 7, 1972, it passed with a whopping 67 percent of the vote.
Ironically enough, by then the U.S. Supreme Court had handed down its nine separate opinions in the case of Furman v. Georgia
, prohibiting unguided discretion in the imposition of the death penalty by juries. This decision truly was a surprise, even to the justices of the California Supreme Court. If they had simply waited a few months until June, their controversial ruling in Anderson
could have been entirely avoided. As Justice Mosk later explained, "We just sort of counted noses," assuming that President Richard Nixon's recent appointments had shifted the high court so far to the right that the Furman
challenge to death penalty laws would never succeed. Still, in California the fight over the death penalty was hardly over.
In 1973 the California Legislature responded to the generally accepted interpretation of Furman
by enacting a mandatory
death penalty law. It required capital punishment in all cases of contract killings, murders of police officers or crime witnesses, multiple killings, and murders during the commission of rape, robbery, burglary, kidnapping, or child molestation. Over the next three years, another fifty persons were sentenced to death in California under this law.
Then the U.S. Supreme Court once again weighed in, in 1976 upholding death penalty statutes that "guided" the discretion of juries, while finding the mandatory death penalty laws enacted in twenty states - including California - unconstitutional. California lawmakers came back the next year with yet another death penalty law, this one authored by then-Senator George Deukmejian, which they enacted over the veto of Gov. Jerry Brown.
It wasn't until 1979 that the California Supreme Court finally addressed the constitutionality of the Deukmejian death penalty law, in People v. Frierson
. Although defendant Lavell Frierson's death sentence was set aside based on his claim he had been denied effective assistance of counsel, the majority opinion concluded that the statute itself was constitutional, since the amendment (art. I, § 27) adopted in 1972 by the people of California clearly declares: "The death penalty ... shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article I, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution." Justice Mosk, in his concurring opinion, wrote, "[I]n ascertaining the permissible limits of punishment, [this court] must look in the first instance to those values to which the people of our state subscribe."
And so Justice Mosk bowed to the rule of law. But as the conclusion of his opinion made clear, he did so with a heavy heart. "The day will come," he wrote, "when all mankind will deem killing to be immoral, whether committed by one individual or many individuals organized into a state. Unfortunately, morality appears to be a waning rule of conduct today, almost an endangered species, in this uneasy and tortured society of ours: a society in which sadism and violence are highly visible and often accepted commodities, a society in which guns are freely available and energy is scarce, a society in which reason is suspect and emotion is king. Thus with a feeling of futility I recognize the melancholy truth that the anticipated dawn of enlightenment does not seem destined to appear soon." (Frierson
, 25 Cal. 3d 142, 189 (1979).)
Twelve years later, in 1992, California conducted its first execution under the Deukmejian death penalty law. Robert Alton Harris had been convicted of killing two high school sophomores he kidnapped from the parking lot of a San Diego drive-in. After shooting both boys through the head, according to prosecutors, he ate their half-finished hamburgers. The police officer who arrested Harris after a subsequent robbery was the father of one of the victims.
When the California Supreme Court rejected Harris's appeal, Justice Mosk joined Chief Justice Rose Bird in dissent, arguing that prejudicial pretrial publicity tainted the fairness of his trial. Eventually, the matter landed on the desk of Gov. Pete Wilson, who in a live television broadcast rejected Harris's appeal for clemency. "As great as is my compassion for Robert Harris the child," said Wilson, acknowledging the terrible circumstances surrounding the defendant's childhood, "I cannot excuse or forgive the choice made by Robert Harris the man." On the night Harris was executed, April 21, 1992, Mosk and his fellow justices sat up all night as one last-minute petition after another was granted by federal courts, then set aside by the U.S. Supreme Court. Malcolm M. Lucas, who was chief justice at the time, urged Mosk to go home and get some sleep, promising they would call him if anything happened. Mosk, then 80, replied that he was worried not about getting sleep but that he would have to cancel the 6:30 a.m. tennis game he had scheduled.
Over the years, Stanley Mosk
responded frequently to requests from countries all over the world seeking his advice on how to set up, refine, or reform judicial institutions and procedures. One of those countries was Israel, and in 1991 he published his views about the death penalty in The Israel Law Review
. As he explained in the article, if there was one thing that qualified him to talk about the death penalty, it was that he had over the course of his career been on all sides of the issue. "First, as an idealistic young man," he wrote, "I debated for abolition of the death penalty. Then, as executive secretary to the Governor of California, I had the duty of actually interviewing, in prison, men - and one woman - under sentence of death and making a report to the Governor. ... Next, I became a trial judge and had the tragic duty of sentencing a murderer to die. ... My next public office was as Attorney General of California. In that capacity I was the chief law enforcement officer of the state and resisted the appeals of convicted defendants. Nevertheless, I testified on three occasions before our state legislature, urging repeal of capital punishment, to no avail. Finally, as a Justice of the Supreme Court of California, I took the oath of office to support the constitution and laws of the state as they are, and not as I might prefer them to be. Thus, on occasion I have concurred in opinions upholding convictions of murder and death sentences. As you can see, my perceptions have varied with my responsibilities. When called upon to enforce the laws as they are, I have done so. When permitted the indulgence of personal opinion, I have expressed a clear preference for elimination of capital punishment."
Today, thanks to the "Briggs Initiative" passed by voters in 1978, which broadly expanded the categories of cases in which the death penalty can be imposed, California's death row has mushroomed to 720 inmates. Still, since Robert Harris was put to death in 1992 there have been only twelve executions. Meanwhile, two successive chief justices of the State of California have declared the state's implementation of the death penalty law "dysfunctional."
State Senator Ron Briggs, whose father, former Senator John Briggs, sponsored that '78 ballot measure, now says it was a mistake. "Our initiative was intended to bring about greater justice for murder victims," he wrote in a Los Angeles Times
opinion piece published last February. "Never did we envision a multibillion-dollar industry that packs murderers onto death row for decades of extremely expensive incarceration. We thought we would empty death row, not triple its population."
Next month, nearly 12 years since Stanley Mosk's death and 100 years since his birth, the "dawn of enlightenment" that he anticipated may finally arrive in California.
Historian Jacqueline R. Braitman, PhD, and Gerald F. Uelmen, a professor at Santa Clara University School of Law, are the co-authors of
Justice Stanley Mosk: A Life at the Center of California Politics and Justice, to be published later this year by McFarland & Company, Inc.