Willfully Causing the Execution of an Innocent Person – Penal Code Section 128

Penal Code Section 128 was passed by the Legislature to deter witnesses from offering untruthful testimony to unjustly cause the execution of someone facing the death penalty.1 Under California law, every person who, by means of perjury or subornation of perjury, causes the conviction and execution of an innocent person shall be punished by death or life in prison without the possibility of parole.2

Perjury is defined in Penal Code Sections 118 and 118a. Subornation of perjury is defined in Penal Code Section 127. A person essentially commits perjury by intentionally lying about a material fact in a legal proceeding. A person suborns perjury by soliciting someone else to give false testimony.

Commentary:

There are no published cases showing that Penal Code Section 128 has ever been used in California. While innocent people have surely been convicted and possibly even executed for capital crimes in California, it would be extremely difficult to prove that a prosecutor or law enforcement officer knowingly suborned perjury to obtain a death sentence. In a more likely scenario, a civilian witness could provide false testimony for a host of reasons. However, to punish the untruthful witness under Penal Code Section 128, the government would have the burden of showing that the executed prisoner was actually “innocent.”

prop-66

For more than a decade, the death penalty has gone unused in California. Given the fact that nearly all cases are stalled in either state or federal appellate courts, Section 128 is likely to remain an unused statute.3  However, in November 2016, voters passed Proposition 66, an initiative designed to speed up the death penalty appeals process.  If Proposition 66 survives vigorous legal challenge, California will enter into an entirely new phase of capital punishment. Hopefully, prosecutors will exercise sufficient care to ensure that innocent people are not executed, and that Penal Code Section 128 remains irrelevant for all practical purposes.

Attorney Bill Haney
Attorney Bill Haney

Sources Cited:

(1) People v. Dickey (2005) 35 Cal.4th 884, 912.
(2) Penal Code Section 128.
(3) According to the November 2016 Voter Guide: “Of the 930 individuals who have received a death sentence since 1978, 15 have been executed, 103 have died prior to being executed, 64 have had their sentenced reduced by the courts, and 748 are in state prison with death sentences.”

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