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.cb THE DEATH PENALTY AND THE CONSTITUTION


	For most of a century after the adoption of the California
Constitution and almost two centuries after the adoption of the U.S.
Constitution, it was unquestioned that death penalties were
in accordance with the constitution.  The opponents of the death
penalty placed their hopes in the legislature or in referenda.
The expansion by the courts of their power to interpret the
constitutions of the U.S. and the states to the point of changing
them is very recent.  We believe the particular decisions have done good in
a few instances but have done concrete harm in more cases than they
have done good.  However, even where the decisions have had good
local effects, as in the U.S. Supreme Court's 1954 decision against
segregated schools, the effect of a court assuming the powers of the
legislature have been bad.

	It now seems likely that the legislature will not over-ride
Governor Brown's veto of new death penalty legislation, and there
will be an initiative on the ballot to restore the penalty.  While
the immediate parties to the controversy are the Governor, the Legislature,
and the People, the California Supreme Court is involved too,
because it struck down laws that had been unchallenged for most of
a century.

	Therefore, we propose that the initiative that restores the
death penalty also strike a blow against judicial usurpation.
Instead of writing a new death penalty statute, the initiative
should, in the form of a constitutional amendment, declare the old
death penalty law constitutional according to the California Constitution.
The idea is that the People of California, who have the right to
amend or rewrite their constitution including its judicial system,
can also establish how their constitution is to be interpreted.
With this amendment, they decide that it shall be interpreted
narrowly.

	The amendment should further specify that it is the duty
of state judges to interpret California laws generally in a way
that is in accordance with the view that the old death penalty
laws were constitutional.  It should be further specified that it
is the duty of the Legislature to impeach judges that usurp the
powers of the Legislature and the People in such manner.

	One effect of the Amendment will be to make many court
decisions of recent years of uncertain validity.  In order to
reduce the disruption this may cause, when an old decision is
challenged, one response of the Supreme Court may be to refer
the old decision to the legislature which can affirm it or
overthrow it by majority vote.  The Court can provide that the
decision stands until the legislature decides.  This procedure,
which abbreviates the normal law-making process, should have a
life of (say) ten years, and this should be provided for in the
Amendment.

	It is probably better if the Amendment does not put any
specific death penalties into the Constitution.  In so far as
it writes new death penalty law, e.g., in order to conform with
U.S. Supreme Court usurpations, they should be ordinary laws,
changeable by the Legislature.

	The Amendment should be brief and should not try to tie down
every possible case of judicial usurpation.  Its intent should be
clear from its wording to the average citizen as well as to judges,
lawyers and legislators.  Its backers should portray it as a
general statement intended to guide the judges back towards
interpreting their role in accordance with the instructions given
through it by the People of California.  However, it should be
clear that if the people perceive that the judges are trying to
evade its provisions, the initiative process can provide for
a more drastic modification of the judicial system including
the wholesale replacement of judges.

	If the Amendment is passed or generates interesting
support in California, the more difficult task of amending the
U.S. Constitution to make the Supreme Court interpret it more
narrowly can be undertaken.
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	Here is a draft of the proposed amendment.  Constitutional
lawyers can undoubtedly do it better, but it should be kept short
and understandable to the layman.

	The People of California hereby affirm that the laws
(INSERT HERE SPECIFIC REFERENCES) governing the imposition
of the death penalty are in accordance with the powers granted
by the People to the Legislature in the California Constitution.
California Courts are hereby instructed to interpret the
California Constitution more strictly than has been recent practice.
In particular, California Courts shall
interpret the powers granted the California Legislature and other elected
bodies and officials in
a manner consistent with the above affirmation of the
constitutionality of the death penalty.

	Recognizing that this Amendment puts in doubt many recent
California court decisions, the People provide as follows:

1. If the California Supreme Court takes a case in which a Petitioner
claims that a previous Court decision made after January 1, 1960 is
in error because it is not in accordance with this Amendment, the
Court has the following options: (i) It may decide that the decision
was in accordance with the Amendment and stands. (ii) It may decide
that the decision should be reversed.  (iii) It may decide that
the previous decision was of a matter that this Amendment affirms
is prerogative of the Legislature.  In this case, it may submit
the specific case to the Legislature for decision, awarding such temporary
relief as the Court considers appropriate.
This provision for referring cases to the legislature expires ten years
after this Amendment becomes law.

2. On petition of a majority of members of either house, the legislature
will vote on whether it decides to consider the case.  A majority of
both houses are required to consider it.  If the legislature decides
to consider the case, a majority of both houses is required to
overthrow the original Court decision.  If the Legislature does not
act within six months of the Court decision to refer the matter to
the Legislature, or if the Legislature decides not to consider the issue,
or if the Legislature fails to overthrow the decision, the original
court decision stands.  If the Legislature overthrows the decision,
the Court must dispose of the issue in a manner
it decides is in accordance with the decision of the legislature.

3. An ordinary legislative Act may declare that it, among other
matters, decides a case referred by the Supreme Court.  If the
Act becomes law, then the Court shall decide the case in
view of the Act.

4. It is the duty of the Legislature to impeach judges that it
finds consistently or flagrantly usurp powers belonging to the
Legislature or other elected officials or bodies.
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John McCarthy
Artificial Intelligence Laboratory
Computer Science Department
Stanford University
Stanford, California 9430%

ARPANET: MCCARTHY@SU-AI
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%7This draft of
DEATH[E77,JMC]
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