California Death Penalty, Struck Down Over Delays, Faces Next Test


August 29,2015 (NYT)

Whether California’s application of the death penalty is so drawn out and arbitrary that it amounts to cruel and unusual punishment will be argued on Monday before a federal appeals court in Pasadena.

If the lawyers for a condemned man are victorious, the case could bring a reprieve to more than 740 prisoners now on death row at San Quentin State Prison and send legal ripples across the country. Either way, legal experts say, it raises issues about the administration of capital punishment that are likely to reach the Supreme Court over time.

In Monday’s hearing before a three-judge panel of the United States Court of Appeals for the Ninth Circuit, California officials will seek to overturn a surprise ruling last year by a lower federal court, which declared the state’s “death penalty system” to be unconstitutional

Hailed by death penalty opponents as a breakthrough and attacked by others as unwise and legally out of line, the decision was issued on July 16, 2014, by Judge Cormac J. Carney of Federal District Court in Santa Ana. It focused not on disparities in the meting out of death sentences in the first place — the more familiar charge — but on the decades of tangled and prolonged reviews that follow and the rarity of actual executions.

In a scathing account of what he called a dysfunctional system, Judge Carney noted that of the more than 900 people who had been sentenced to death in California since 1978, when the current legal structure was established, only 13 had been executed.

Citing growing delays in a judicial review process that can take 25 years or more, far above the national norm, Judge Carney said death sentences had been transformed, in effect, into “life in prison, with the remote possibility of death.”

The “random few” who are put to death, he said, “will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”

Judge Carney ruled on the appeal of Ernest Dewayne Jones, who was condemned to die in 1995 for a murder and rape and made a last-ditch plea to a federal court after his appeals to the California Supreme Court had been denied. The judge vacated Mr. Jones’s death sentence as he declared California’s capital-punishment process to be generally unconstitutional.

The decision was a stunning one, and California officials have sharply challenged it on both procedure and substance. They say it was illegitimate because Mr. Jones’s arguments about the arbitrariness of the review system — issues going beyond the long delays alone — had not first been considered in the California courts, as required.

Beyond that, according to the brief from the state’s attorney general, Kamala D. Harris, a Democrat, the delays and rarity of executions do not reflect random quirks. Rather, it says, they are a product of California’s effort to be scrupulously fair, ensuring that condemned prisoners have high-quality lawyers and every opportunity to question the legality of their sentences.

California legislators have required such exhaustive reviews and procedures as “an important safeguard against arbitrariness and caprice,” the state holds, quoting from a 1976 Supreme Court decision.

In a plebiscite in 2012, California voters affirmed the death penalty by a narrow margin, with 52 percent voting to keep it and 48 percent voting to replace it with life in prison without parole.

California inmates normally wait three to five years just for the appointment of a qualified defense lawyer, a delay that may be repeated as convicts pursue two successive state appeals and then a federal one. Beyond the prolonged process of reviewing death sentences, California has had a de facto moratorium on executions since 2006 because of disputes over the method of lethal injection.

The questions of arbitrariness and extreme delay that are raised by the Jones case are important and may well gain purchase in the courts, said Eric M. Freedman, a professor of constitutional law and death penalty expert at Hofstra University.

“But that does not necessarily mean that this particular litigation will be the vehicle by which the courts resolve these issues,” he added, noting that procedural or other questions could lead the appeals panel to overrule the Jones decision.

The arguments made by Mr. Jones’s lawyers — and echoed by Judge Carney — are similar in part to those made in June by Justice Stephen G. Breyer of the Supreme Court. In a sweeping dissent, joined by Justice Ruth Bader Ginsburg, Justice Breyer went beyond the lethal-injection issue at hand to ask whether the death penalty was so marred by unreliable decisions, arbitrary application and delays that it should be abolished.

But conservative justices responded that death penalty opponents, in their zeal to erect obstacles to executions, were responsible for inordinate delays and unpredictability.

If the Ninth Circuit and even the Supreme Court should uphold Judge Carney’s ruling, this would not necessarily cause the death penalty to unravel nationwide, said Douglas A. Berman, an expert on criminal law at the Ohio State University Moritz College of Law.

Judge Carney’s decision turned on details specific to California, and with its high number of condemned prisoners and very low pace of executions, the state is in a class by itself, Mr. Berman said. Still, he added, a similar critique might succeed in a few other states, including Pennsylvania and Florida.

Given the deep divisions within California over the death penalty, Mr. Berman added, the state may, in an odd way that has nothing to do with constitutional principles, be well served by the status quo.

“Voters, and perhaps the executive branch, too, are not that troubled with a system that has lots of death sentences and few executions,” Mr. Berman said.

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