A federal judge in Orange County, California, has ruled that California’s death penalty is unconstitutional. [icopyright one button toolbar]
Although many blogs and news outlets are trumpeting the decision as a blow against the death penalty broadly, close examination of the order shows that the effect may actually be quite narrow. Judge Cormac J. Carney ruled that lengthy delays in carrying out executions under California’s death penalty undermined any deterrent or retributive effects of the death penalty. The court found that the long delays resulted in a death penalty that was, in practice, carried out only in a relatively few cases. The court concluded that California’s system now resembled the essentially random death-penalty system that the U.S. Supreme Court invalidated in 1972 in Furman v. Georgia.
But the narrowness of the court’s decision derives from its identification of the specific causes of delays in California’s system. Although long delays are common in all death penalty jurisdictions, courts have generally been reluctant to invalidate the death penalty as a result because so much of the delays result from inmates’ own often-repetitive appeals and petitions. Not so in California:
On the record before it, the Court finds that much of the delay in California’s postconviction review process is created by the State itself, not by inmates’ own interminable efforts to delay.20 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.
As a result of this diagnosis, the ruling may not represent a fundamental legal shift against the death penalty. If used in other states, the state could simply point out that it does not share California’s pervasive funding and staffing problems. And even California could theoretically repair its death-penalty system simply by correcting these deficiencies (though the state’s grossly dysfunctional fiscal situation makes this unlikely).
So although the opinion may highlight many of the problems with the expense and delays in administration of the death penalty, it is unlikely to be the harbinger of the end to capital punishment in America.
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.