In a decision being described as “stunning” and “path-breaking,” U.S. District Judge Cormac J. Carney issued an order on July 16, 2014 declaring California’s death penalty system unconstitutional. Not surprisingly, the decision has been met with a considerable degree of shock, with many commenters calling the move judicial activism.
The opinion was rendered in the context of a federal appeal by the defendant, Ernest Dewayne Jones, in the case of Jones v. Chappell. Jones has been on death row since 1995 – almost 20 years – and the sentence in his case has yet to be settled. Jones’ lawyer argued, and Judge Carney agreed, that the length of delay and degree of uncertainty surrounding Jones’ sentence constitutes cruel and unusual punishment under the Eighth Amendment.
Background: California’s Death Penalty System
Jones’ case is not a unique one. Since California reinstated the death penalty in 1978, of over 900 inmates sentenced to death, only 13 have been executed. It takes, on average, more than 25 years for a death sentence to be finalized. A common misconception is that this delay is due to the number of appeals filed by death row inmates. As Judge Carney points out, the delay is actually caused by the state appellate system.
Inmates spend years waiting for a court-appointed attorney to be assigned to their case, they spend years waiting for the California Supreme Court to set a date for their hearing, and they spend years waiting for the court to issue a decision. This backlog is caused by a lack of funding. Budget cuts have forced the State Public Defender’s Office to reduce its staff, while private attorneys are discouraged from taking penalty appeals due to the low pay offered by the State.
At the Federal level, additional delay is caused by exhaustion rules that often send inmates back to the backlogged state court system to present newly discovered claims and evidence. Further delay is caused by state courts’ failure to publish their decisions or hold evidentiary hearings, requiring federal courts to conduct their own investigations to understand the state court decisions.
While the average death row inmate spends about 17 years moving through the state appellate system and another 10 years on federal appeals; the majority of this time is actually spent, not fighting convictions or appealing sentences, but waiting for a dysfunctional bureaucracy to make the next move.
Further complicating things, since the 2006 case Morales v. Tilton, executions have been halted in California due to risk of extreme pain from the state’s lethal injection protocol. Amending the protocol has taken years and still has not been accomplished.
Legal Support for Judge Carney’s Decision: The Furman Case
In holding that the current death penalty system violates the Eighth Amendment, Judge Carney relied heavily on the 1972 United States Supreme Court case Furman v. Georgia. This well-known case famously invalidated the death penalty as it was then being imposed across the United States.
In 1972, judges and juries had unchecked discretion over when to impose the death penalty, making a convict’s chances of being sentenced to death completely random. The Supreme Court, in Furman, held that courts have an obligation under the Eighth Amendment to ensure that punishment is not arbitrary and will further societal interests.
Judge Carney’s Ruling: California’s Death Penalty System is Arbitrary and Violates the Eighth Amendment
The Furman Court found that the way the death penalty was being imposed at the time was arbitrary because there was no meaningful basis for distinguishing cases that warranted a death sentence from those that did not. Judge Carney believes that even though the Furman Court was talking about arbitrariness in handing out death sentences, the current state of affairs in California creates the same type of arbitrariness.
What makes California’s death penalty system arbitrary is that whether an inmate will be executed is based on random factors related to how quickly the inmate moves through the appellate system – when they are assigned counsel, when their hearing is scheduled, when a final decision is issued – and not anything to do with the severity of the inmate’s crime or even something neutral like when the inmate was sentenced to death. Most death row inmates will never realistically face execution and the few that do will basically be selected at random.
The Furman Court held that when the death penalty is imposed in only a trivial number of the cases where it is legally available, sentencing is reduced to “little more than a lottery system” and is being inflicted arbitrarily. With only 13 executions out of 900 inmates that have been on death row, the Furman Court could just as easily be describing the current death penalty system in California.
Understanding Judge Carney’s Ruling
One thing that should be noted is that this is not an “anti-death penalty” ruling in the traditional sense. Judge Carney did not hold that the death penalty itself is unconstitutional. What Judge Carney takes issue with is the fact that California’s death penalty system is so slow and unpredictable that it is practically meaningless.
This is not only unfair to the inmates on death row who wait decades to find out their fates. It is unfair to affected families and communities that deserve closure. It is unfair to juries whose careful deliberations over whether to impose a capital sentence are actually inconsequential. Not to mention, it is a huge waste of California taxpayers’ money.
Judge Carney takes care to point out the degree to which judicial backlog is being caused by the State. He references some of the reforms that have been recommended to the legislature –increasing funding for court-appointed attorneys, limiting the number of crimes that carry a death sentence, and even abolishing the death penalty altogether. He points out that even the most conservative reforms are estimated to reduce the appeals process down to 11-14 years, bringing California in line with the national average.
Whether you think Judge Carney’s holding is “judicial activism” or firmly based in constitutional law, the opinion definitely reads like a criticism of the State. What remains to be seen is whether the State will funnel resources into appealing a decision that, given the 2006 moratorium on executions, has few practical implications currently. Analysts are already predicting that the case will be appealed all the way to the U.S. Supreme Court. Perhaps it would be a better use of the State’s time and resources to actually begin to address some of Judge Carney’s concerns.