A federal judge in the U.S. District Court for the Central District of California issued an extraordinary ruling yesterday that California’s death penalty is unconstitutional, vacating Ernest Dewayne Jones’s death sentence. In a remarkably straightforward opinion, Republican appointee Judge Cormac J. Carney found that California’s death penalty system is so unfair and arbitrary as to violate the Eighth Amendment’s ban on cruel and unusual punishment.
Judge Carney found California’s capital system to be rife with delay and dysfunction. The state has sentenced more than 900 individuals to death since 1978, but has executed only 13 of them. By contrast, 94 have died of other causes, including old age, illness, and suicide. Inmates are more likely to die of other causes because of systemic delays in the appellate process that prevent execution than from execution itself. The court pointed out that death penalty cases take more than 25 years to resolve, and that the majority of that time is spent in state courts.
The court also found the appellate delays to be caused by the state of California itself – not malingering petitioners or federal appellate processes. In 2008, the California Commission on Fair Administration of Justice issued a report concluding that the State’s death penalty system was dysfunctional and “plagued with excessive delay.” That Commission recommended a series of improvements be implemented to fix the dysfunction and delay, yet six years later, not one of those recommendations has been put into place. The court found further delays in the direct and collateral appeals resulting from lack of qualified appointed counsel and a severe backlog at the California Supreme Court. Furthermore, backlogs in California state courts cause delays in federal collateral review of capital cases, which requires that the petitioner exhaust all remedies in state court first.
Arbitrary and Capricious Application of the Death Penalty
The Eighth Amendment, and the cases that have subsequently interpreted it, proscribe the arbitrary application of the death penalty. In Furman v. Georgia, the U.S. Supreme Court struck down death penalty sentencing schemes that “created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” This is a hallmark of death penalty jurisprudence that has survived, despite the reinstatement of capital punishment in subsequent Court rulings.
Judge Carney found California’s death penalty scheme to be “so plagued by inordinate and unpredictable delay” that it is indeed an arbitrary, capricious application of the punishment, in violation of Furman and subsequent opinions. The fact that over 900 individuals have been sentenced to death, and only 13 of them actually executed, results in a “sentence of life imprisonment with the remote possibility of death—a sentence that no rational legislature or jury would ever impose.” Carney goes on to note that execution will “depend upon a factor largely outside the inmate’s control”; in other words, it’s not the type or severity of the crime that determines whether the death penalty will be imposed, but arbitrary reasons, and this is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.
Judge Carney also found that California’s death penalty no longer serves the primary penological purposes of capital punishment. Gregg v. Georgia, which reinstated the death penalty, did so with the understanding that the punishment should serve two “principal social purposes”: retribution and deterrence. Carney noted that it is an established principle that “the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition, ” and that the 25+ year delay in execution, and the exceedingly low number of individuals actually executed, negates any deterrent value that the punishment may have. The retributive purpose is similarly negated by “such delay and unpredictability” in the system, since most of those sentenced to death end up serving life in prison, instead.
In summary, Judge Carney concluded:
The Court holds that where the State permits the post-conviction review process to become so inordinately and unnecessarily delayed that only an arbitrarily selected few of those sentenced to death are executed, the State’s process violates the Eighth Amendment. Fundamental principles of due process and just punishment demand that any punishment, let alone the ultimate one of execution, be timely and rationally carried out.
Implications of the Ruling
What does this mean for the 748 individuals currently on Death Row? It’s unclear. This decision applies only to the matter at hand, the death sentence of Petitioner Jones. According to press reports, the Attorney General is considering the matter and has not indicated whether she will appeal the ruling. Defendants and Petitioners will certainly cite the holding in their arguments, but other state and federal courts are not bound to follow it.
California, however, seems to be on the precipice of change when it comes to the death penalty. Public opinion has changed dramatically over the past couple of years, both in the state and across the nation. In 2012, a proposition that would have replaced the death penalty with life in prison without parole garnered 48% of the vote. Revelations about the high cost ($4 billion since 1978, and a projected $1 billion over the next five years), structural problems in the system, and the risk of executing an innocent person are leading many citizens away from the death penalty. Stories about botched executions horrify the nation, and many states—including California—are actually enjoined from carrying out executions until new protocols have been adopted. A recent poll shows that 63% of California voters support commutation of the sentences of the entire population of death row to life in prison without the possibility of parole. In 2013, Gallup found that support for the death penalty, nationwide, is at its lowest number in over 40 years.
Judge Carney’s opinion is in line with the direction of public opinion, whether he intended it or not. Regardless of whether his reasoning is upheld on appeal or in subsequent litigation, it could very well signal the imminent demise of the practice in the state.