A federal judge in Orange County ruled Wednesday that California’s death penalty violates the U.S. Constitution’s ban on cruel and unusual punishment.
U.S. District Judge Cormac J. Carney, ruled on a petition by death row inmate Ernest Dewayne Jones, who was sentenced to die nearly two decades ago.
. . .
Carney, an appointee of former President George W. Bush, said the delays have created a “system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed,” Carney said.The full opinion is available here.
. . .
The “random few” who will be executed “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” Carney said.
Judge Carney notes that delays at various steps of the appeal process contribute to the lengthy nature of death penalty reviews. Defendants who are sentenced to death typically need to wait about three years for appellate counsel to be appointed, and the briefing process tends to take an additional four years due to the complexity of death penalty case files. Contributing to the delay is a lack of attorneys to represent defendants in state habeas proceedings.
Judge Carney notes that the purposes of California's punishment system are to deter offenders and to obtain retribution for wrongdoing. But Judge Carney argues that offenders who commit a capital crime are so likely to die while waiting on death row, that California's death penalty "is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going out in the rain." And any retributive purposes that the death penalty is supposed to fulfill are defeated if only an arbitrary few defendants are executed.
The Times notes that this case can be appealed, and I suspect that it will be. The Times also notes that this is the first time a federal court had held a death penalty scheme unconstitutional because of the procedural delays inherent to the system. Because of this novel basis for finding California's system unconstitutional, I am not sure how this case will turn out on appeal.
Whatever the outcome of this case will be in the courts, I suspect that it will get the attention of California's government. Essentially all of Judge Carney's reasons for finding California's death penalty unconstitutional stem from an underfunded and under-resourced system of appellate representation. By devoting more resources to death penalty appeals, many of the delays that Judge Carney discusses could be ameliorated -- at least for future cases.
But the government would probably also face some additional legal obstacles, most notably, making the chemicals for lethal injection available. My understanding is that the chemicals needed for lethal injection are not available for executions in California, since the legality of these chemicals has been tied up in litigation since 2006. To make the death penalty a feasible prospect for those convicted of capital crimes, this litigation will need to either be wrapped up or sidestepped through the use of alternate execution methods or chemicals.
Even if California's government manages to address some of the delays that Judge Carney discusses in his opinion, the state may need to do quite a bit more to make this new constitutional argument go away, especially if the Ninth Circuit is receptive to the logic of Judge Carney's opinion.