A Slow Injustice?

A California judge has ruled that the state’s death penalty is unconstitutional because it’s too slow and unpredictable:

In a case brought by a death row inmate against the warden of San Quentin state prison, [US District Court Judge Cormac] Carney called the death penalty an empty promise that violates the Eighth Amendment’s protection against cruel and unusual punishment. “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,” the ruling read. A death penalty appeal can last decades, Carney said, resulting in most condemned inmates dying of natural causes.

Dylan Matthews looks closely at the ruling:

Carney’s opinion was accompanied by a long appendix table detailing the outcomes of every death sentence between 1979 and 1997 [see above chart]; he excluded sentences after that year because “for all but a small handful of those individuals, state proceedings are still ongoing, and none have completed the federal habeas process.” The data excludes convictions that were overturned by the California Supreme Court and those whose “post-conviction proceedings have not been stayed based on their lack of mental competency to face the death penalty.” …

What’s more, Carney argues, there isn’t anything separating the rare cases where executions actually occurred from the vast majority where they didn’t. Whether someone dies by execution is primarily determined, he writes, “depend[s] upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process.”

Andrew Cohen grimly notes that Carney’s rationale “isn’t that the state’s capital system is prone to error, or rife with racial disparity, or arbitrary in its application, even though it is plaintively all of those things”:

Instead, this appointee of George W. Bush concluded that the “machinery of death” grinds too slowly in California for it to sustain itself under the Eighth Amendment. Delay, he contends, is the decisive constitutional flaw in the grim mechanism.

“Just as inordinate delay and unpredictability of executions eliminate any deterrent effect California’s death penalty might have,” Judge Carney wrote, “so too do such delay and unpredictability defeat the death penalty’s retributive objective.” And without those two justifications for capital punishment, deterrence and retribution, the judge argues, there is no constitutional basis for the government to kill one of its citizens, at least none the United States Supreme Court has recently recognized.

Tom McKay calls the ruling “a major state-level victory for death penalty abolitionists,” and law professor Hadar Aviram describes it as “the first time I can think of since the 1970s that a judicial opinion has taken on the death penalty as a whole rather than just the individual.” But Scott Shackford warns opponents of capital punishment not to get too excited:

The ruling is very specific to the nature of the delays in California and thus it’s not clear whether the case has implications outside of the Golden State. Certainly it takes years for other states to coordinate their executions, but it’s not necessarily the case that California’s slow (and extremely expensive! Let’s not forget how expensive it is! California’s highest public salaries are in the prisons and criminal justice spheres.) process is like those in other states.

And also, before anti-death-penalty advocates celebrate, this ruling is about the process, not the outcome. It is not a judgment against the use of the death penalty. It is a judgment against California’s broken system and its inability to apply it fairly and consistently.

Ashby Jones has more on the Golden State context:

For years, critics of the death penalty in California have argued that the system in the state, which often involves numerous appeals and lengthy waits for qualified, court-appointed lawyers, is woefully inefficient. For instance, a 2011 study co-authored by Arthur Alarcón, a judge on the Ninth Circuit, found California had spent more than $4 billion on capital punishment since it was reinstated in 1978 – about $308 million for each of the 13 executions since then.

Mark Berman adds:

Voters in California rejected an attempt to eliminate the state’s death penalty in 2012. There was a push this year to speed up the execution process and shorten appeals (an initiative supported by three former California governors), but it failed to make it on the ballot, so organizers are planning to make a push for November 2016.

But, he notes, the national picture looks very different:

There has been a shift in recent years away from the death penalty, with one-third of the states that have banned capital punishment doing so since 2007. The last state to abolish the death penalty was Maryland last year, though New Hampshire came very, very close earlier this year. Still, executions are happening less often than they did even two decades ago, a decline that has occurred as American support for capital punishment has also fallen.

Dan Markel zooms out:

Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won’t stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.