Intolerable cruelty and capital punishment

If ever a court truly breathed life into the adage that "justice delayed is justice denied," it was last week's historic ruling by U.S. District Judge Cormac J. Carney that California's death penalty system is unconstitutional.

"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 Eight 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."

There are many good reasons why California's death penalty system should be ended - from the unacceptable risk of executing innocent people to the shocking racial and economic disparities of those sent to death row; from appalling examples of ineffective assistance of counsel and prosecutorial misconduct to the documented fact that it costs more for the state to use the death penalty than life in prison without possibility of parole; and so on. Yet, Carney based his decision on a systematic condemnation of the intolerable delays - averaging 25 years - caused by the manner in which California carries out state killing.

In a detailed and comprehensive 29-page decision (Jones v Chappell, CV 09-02158-CJC, filed July 16, 2014), Carney declared that "the dysfunctional administration of California's death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution." For most inmates on California's death row, "systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary."

Carney based much of his decision on the 2008 Report of the California Commission on the Fair Administration of Justice, a bipartisan panel composed of prosecutors, criminal defense attorneys, law enforcement officials, academics, representatives of victim's rights organizations, elected officials, and a judge. The report concluded that "California's death penalty system is dysfunctional. The system is plagued with excessive delay in the appointments of counsel for direct appeals and habeas corpus petitions, and a severe backlog in the review of appeals and habeas petitions before the California Supreme Court." Yet, California has largely ignored the commission's recommendations and failed to provide adequate funding for legal representation.

On April 7, 1995, the petitioner, Ernest Dewayne Jones, was condemned to death. Nearly two decades later, Jones remains on death row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. He is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death and 13 have been executed.

The court firmly grounded its decision on the Eighth Amendment prohibition against cruel and unusual punishment. "Although reasonable people may debate whether the death penalty offends that proscription, no rational person can question that the execution of an individual carries with it the solemn obligation of the government to ensure that the punishment is not arbitrarily imposed and that it furthers the interests of society."

In Furman v. Georgia, 408 U.S. 238 (1972), the U.S. Supreme Court encountered a system in which judges and juries were afforded virtually untrammeled discretion to decide whether to impose the ultimate sanction. The death penalty was being imposed in a random manner against some individuals, with "no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not."

The Supreme Court found such an outcome abhorrent to the Constitution, and held that the death penalty "could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." The Constitution "cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Carney found that "California's death penalty system is so plagued by inordinate and unpredictable delay" that the selection of who will be executed does "not depend on whether their crime was one of passion or of premeditation, on whether they killed one person or ten, or on any other proxy for the relative penological value that will be achieved by executing that inmate over any other."

For Jones to be executed in such a system, Carney concluded, "would offend the most fundamental of constitutional protections - that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death." As Justice William Brennan wrote in Furman, "[w]hen the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system."

According to Carney, "the execution of a death sentence is so infrequent, and the delays preceding it so extraordinary, that the death penalty is deprived of any deterrent or retributive effect it might once have had. Such an outcome is antithetical to any civilized notion of just punishment."

The Supreme Court has long held that "there can be little doubt that the effectiveness of punishment as a deterrent is related not only to the quality of the possible punishment but to the certainty and promptness as well." In California, Carney found the "delay inherent in California's system is so extraordinary that it alone seriously undermines the continued deterrent effect of the State's death penalty."

Likewise, Carney found that delay and unpredictability defeat the death penalty's retributive objective. Where the "delay is systemic, and the State itself is to blame," California "has allowed such dysfunction to creep into its death penalty system that the few executions it does carry out are arbitrary." Carney acknowledged that "courts have thus far generally not accepted the theory that extraordinary delay between sentencing and execution violates the Eighth Amendment," but he pointed out that those decisions "have often not addressed whether any penological purpose of the death penalty continues to be served more than two decades after the death sentence was imposed."

Instead, courts often reject the Eight Amendment theory by blaming the petitioner himself for the delay. However, Carney pointed out that the "State is not arguing that the delay in Mr. Jones's execution is an isolated incident in a system that otherwise operates as expeditiously as possible to execute those sentenced to death, nor "does the State argue that it is rational or necessary for it to take more than two decades to provide Death Row inmates with the process required to ensure that their death sentence comports with constitutional requirements. Indeed, the State cannot reasonably make these arguments."

Based on empirical evidence, Carney found "that much of the delay in California's post-conviction review process is created by the State itself, not by inmates' own interminable efforts to delay. Most Death Row inmates wait between three and five years for counsel to be appointed for their direct appeal. After the issues are briefed on direct appeal, another two to three years are spent waiting for oral argument to be scheduled before the California Supreme Court. On state habeas review, far from meeting the ideal goal of appointing state habeas counsel shortly after the death verdict, at least eight to ten years elapse between the death verdict and appointment of habeas counsel. When that counsel is appointed by the State, investigation of potential claims is hampered by underfunding, which in turn slows down the federal habeas review process. Then, after state habeas briefs are submitted, another four years elapse before the California Supreme Court issues a generally conclusory denial of the inmate's claims. This lack of a reasoned opinion further slows adjudication of inmates' federal habeas claims. Finally, even after filing a petition for federal habeas review, many inmates, often because of deficiencies rooted in the State's process, must stay their federal cases to exhaust claims in state court."

"These delays - exceeding 25 years on average - are inherent to California's dysfunctional death penalty system, not the result of individual inmates' delay tactics, except perhaps in isolated cases." Indeed, in Jones' case, there was no evidence of frivolous filings or unreasonable delay caused by Jones. Rather, Carney specifically found that "the unnecessary delay in his case - as in the cases of most other Death Row inmates - is attributable to structural problems inherent in California's death penalty system."

If we are to remain true to both our Constitution and our humanity, it is intolerable for the state of California to kill death row inmates in such a freakish, random and arbitrary system. In 2012, 48 percent of California voters agreed. Carney's groundbreaking decision now adds another nail to the coffin of state killing.