9th Circuit to Weigh Constitutionality of California’s Death Penalty

The lethal injection room at San Quentin State Prison, completed in 2010. (CDCR)

The lethal injection room at San Quentin State Prison, completed in 2010. (CDCR)

By Alex Emslie

The 9th U.S. Circuit Court of Appeals will hear oral arguments Monday in a case that could declare California’s death penalty unconstitutional.

The court is hearing state Attorney General Kamala Harris’ appeal of a 2014 ruling by Central California U.S. District Judge Cormac Carney that vacated the death sentence of convicted rapist and murderer Ernest Dewayne Jones.

Carney’s ruling garnered national attention last year. With equal parts frustration and resignation, the George W. Bush appointee lambasted California’s decades-long death penalty process, calling capital punishment “life in prison, with the remote possibility of death.”

“Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eight Amendment’s prohibition against cruel and unusual punishment,” Carney wrote.

His conclusion is worth reading in its entirety:

When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.

But for too long now, the promise has been an empty one. Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional. Accordingly, the Court hereby VACATES Mr. Jones’s death sentence.

The state, according to legal briefs, will argue there is no legitimate legal basis for Carney’s ruling. The 20-plus years it takes for California to execute a defendant sentenced to death embody a procedure designed specifically to avoid arbitrary imposition of capital punishment, the briefs say.

“There is … no legal basis for the district court’s conclusion that the time often required to work through California’s current system of thorough review, combined with the fact that some cases move faster than others, creates a ‘dysfunctional’ system under which those executions that do take place are ‘arbitrary’ and lack penological purpose,” it says. “The court mistook its policy critique as a proper basis for legal judgment.”

A spokeswoman for the California Attorney General’s Office declined to comment ahead of Monday’s arguments.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, wrote the crime victim advocacy group’s friend-of-the-court brief in support of the state.

“A delay in the execution of the death penalty is not a violation of the rights of the defendant,” he said. “He’s getting to live out a longer life than he was sentenced to, than he should have received. That’s not a constitutional violation against the defendant. The excessive delays are a violation of the rights of the victim, and we should be fixing them.”

Several groups working to abolish the death penalty in California and nationwide have also filed briefs in the case.

“California is uniquely dysfunctional in its death penalty system,” said Matt Cherry, who heads the San Francisco-based organization Death Penalty Focus.

He cites, as Carney did, the more than 900 death sentences meted out in California since a series of actions in the late 1970s reinstated capital punishment here. It took about 15 years for California to carry out an execution. The state executed 13 people between 1992 and 2006.

“It’s by far the largest death penalty system in the country,” Cherry said, “by far the most costly, and it has very little effectiveness in the way it’s been run for the last 40 years.”

Both Cherry and Scheidegger said a ruling against their side would likely result in further appeal, potentially to the U.S. Supreme Court.

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