Is California's System of Capital Punishment Unconstitutional?

In July 2014 US Federal District Court Judge Cormac J. Carney of the Central District of California granted a habeas petition explicitly invalidating the death penalty in California, the state with the nation’s largest death row. Judge Carney wrote that a death sentence in California is today a sentence “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death” (emphasis in the original). Describing California’s death penalty system as “dysfunctional”, the court cited routine delays of decades or more between sentencing and execution and reasoned that “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.” That case, now titled Jones v. Davis, will be heard by a three-judge panel of the Ninth Circuit Court of Appeals on August 31st.

The procedural habeas issues presented in the Jones appeal are complex. Jones’ federal habeas petition originally contained a so-called Lackey claim—an allegation that the long delay between the imposition of a death sentence and carrying out of that sentence renders the death penalty unconstitutional. The district court asked Jones to restyle this claim to include an allegation that not knowing when or even if whether he would ultimately be put to death constituted a violation of the Eight Amendment’s prohibition on cruel and unusual punishment. After briefing the court then granted relief on the basis of the amended claim, construing it as a raising an allegation of “system-wide dysfunction” in California’s application of the death penalty.

The state has attacked this finding on a number of bases. First, while the California Supreme Court heard (and rejected) Jones’ Lackey claim, it did not consider the general dysfunction/Eighth Amendment challenge that the district court asked the parties to brief and on which the court ultimately granted relief. Thus, the state argues, that claim was not exhausted in the state court and both comity and the rules of habeas procedure require Jones to afford the state courts an opportunity to consider the claim before he is allowed to bring it to a federal court. In the classic habeas Catch 22, the state also argues that if the district court did in fact grant relief on the same claim that was considered by the state high court, then the habeas grant should be overturned because the state court’s decision regarding delay was not contrary to or an unreasonable application of federal law (as no federal court has yet accepted such a claim). For the same reason, the state argues, Jones should be denied relief because he is impermissibly seeking to make a new rule in a petition for a writ of habeas corpus—because his system-wide dysfunction theory is novel, in other words, the Supreme Court’s opinion in Teague v. Laneprohibits it from being asserted in a petition for a writ of habeas corpus. In addition, the state argues that the delay that is clearly present in California’s death penalty administration is a result of the state’s gratuitous decision to provide qualified appellate counsel in capital cases and that it would be ironic to punish the state for creating a robust capital appellate regime when other states, having failed to do so, are able to do carry out executions more expeditiously.

Of course, the arcana of habeas procedural rules is not why Jones has drawn so much attention that the 9th Circuit felt compelled to create a separate web page to deal with the increased traffic associated with the case. Rather, it was the fact that a federal judge announced, vociferously, that the nation’s largest state was operating a capital system that was failing, rather spectacularly, to comply with the dictates of the Eighth Amendment. And it certainly seems no exaggeration to describe, as Judge Carney did, California’s capital scheme as dysfunctional. As of April 1, 2015, California had 746 people on death row in the state, accounting for nearly a quarter of the nationwide total. California’s bloated death row is the result of many death sentences and very, very few executions. Since Gregg v. Georgia announced in 1976 that the death penalty was constitutional, California has carried out just 13 executions and none since Clarence Ray Allen, then 76, was put to death in 2006 after more than 23 years on death row. As Judge Carney noted, it would take one execution a week for 14 years to clear California’s death row, a level of government killing for which California clearly has no stomach.

Jones has also attracted attention because it arises at a troubling time for the death penalty in the United States. It is only a small exaggeration to say that the death penalty is in full retreat in the US today. The range of crimes for which it can be imposed has narrowed, while the range of offenders against whom it can be imposed has fallen as well; only 35 executions were carried out in the United States in 2014, a twenty year low. A handful of governors have imposed execution moratoria, and a number of states have done away with the penalty entirely, either by statute or judicial opinion.

But the United States Supreme Court—where observers seem to believe Jones is eventually heading—does not seem a fertile ground for death penalty abolition. As recently as June 29th of this year, a narrow majority of the Supreme Court rejected in Glossip v. Grossa challenge to Oklahoma’s execution protocols, reaffirming in the process the penalty’s continuing constitutionality. Even on the high court, though, opinion may be shifting; Justice Breyer announced in his Glossip dissent that he had determined to stop tinkering with the machinery of death, stating that changes in the administration of the death penalty “taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’” He was joined in this opinion by Justice Ginsburg while Justice Sotomayor read her own strong dissent from the bench. Thus, while there is not yet a majority on the Court for declaring the death penalty unconstitutional throughout the nation, the Court’s discomfort with the penalty does seem to be growing. Furthermore, California’s system of executing prisoners ten, twenty, or more years after the imposition of a death sentence, in an order that bears no relationship to their individual culpability, seems like a system it will be difficult for even the most vociferous of the Court’s death penalty proponents to support. This system made an abolitionist out of Judge Carney—a George W. Bush appointee and former professional football player—and may just prove too much for the Court to bear as well.