Of Bottlenecks and Tipping Points

Bottlenecks

Ten years ago, in 2005, Senior Ninth Circuit Judge Arthur L. Alarcón and I began studying California’s death penalty system to determine what was causing the delays at each stage in the capital trial, appeal, and post-conviction relief processes. We published our findings, which identified several critical bottlenecks in the system and proposed remedies to the address the delays they were creating.

One critical bottleneck we identified was at the California Supreme Court, which is required to hear all direct appeals in death penalty cases but has only seven justices. The number of death sentences the state imposes far surpasses the capacity of our already overworked Supreme Court. Even simple math reveals that the bottleneck at the Supreme Court will eventually overwhelm the system. Despite the obvious and looming crisis these alarming statistics forecast, the calls for reform have fallen on deaf ears.

In 2005, the California Supreme Court required about 12 years to issue an opinion in death penalty appeals. Now, ten years later—as predicted—the bottleneck at the California Supreme Court has increased by 25% to 15 years on average, with many appeals taking 20 to 25 years to be briefed, argued, and decided. Twenty-two inmates have died on death row in California before their convictions and sentences were even reviewed on direct appeal. Another 44 death row inmates have died of natural causes while their state or federal habeas corpus petitions were still pending before the courts, waiting to be reviewed.

As Judge Alarcón and I reported in a subsequent study, this chronically dysfunctional system has cost taxpayers over $4 billion since 1978, during which time it has produced no more than 13 executions. Despite these well-documented and undeniable statistics, the state has never expressed any desire or intent to remedy the system. Instead, it steadfastly claims that these delays are a necessary part of the system.

Tipping Points

A critical point in an evolving situation that leads to a new and irreversible development is often referred to as a tipping point, or a turning point. For Judge Alarcón, the data our research revealed suggested that California’s ability to sustain its death penalty system was reaching a tipping point. The state’s refusal to acknowledge the magnitude of the dysfunction in the system was a source of profound frustration and consternation to him.

Last July 2014, in the continued absence of any state corrective action, another federal judge weighed in on the viability of California’s death penalty system. In Jones v. Chappell (now Jones v. Davis), District Judge Cormac Carney carefully reviewed statistical data compiled by various credible sources, including Judge Alarcón, and determined that the system in California no longer comports with the requirements of the Eighth Amendment because its unconscionable delays lead inevitably to the arbitrary selection of a few inmates randomly selected for execution from among the many who are sentenced to death. Citing Furman v. Georgia, 408 U.S. 238 (1972), Judge Carney concluded that California’s death penalty, as it is actually carried out by the state, violates the Eighth Amendment’s prohibition on arbitrarily inflicted punishments because those sentences do not comport with human dignity.

Judge Carney’s ruling is now pending before the Ninth Circuit Court of Appeals. It is difficult to predict how the panel will rule, or whether this case will prove to be the proverbial “tipping point,” in the demise of California’s death penalty. The state has asserted numerous procedural challenges, which the state argues should prevent the panel’s consideration of the merits raised in the Jones petition.

Just a few days ago, on August 24, 2015, the California Supreme Court went out of its way to comment on Judge Carney’s ruling, in a published opinion in an unrelated death penalty appeal, People v. Seumanu, Case No. S0938803. Without passing on the legitimacy of the so-called “Jones claim,” the Court in Seumanu described it as “a claim that systemic delay in resolving post-conviction challenges to death penalty judgments has led to a constitutionally intolerable level of arbitrariness in the implementation of the penalty,” and assumed for the sake of the arguments before it that such a claim exists. The Court reiterated the longstanding principle that reasonable delays involved in the appeal process, standing alone, do not violate the Eighth Amendment. But the Court went on to explain that “doctrine can evolve,” especially in view of the fact that the Eighth Amendment was ratified in 1791, and reminded us that “[w]hile the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.”

While the outcome of the Jones case is far from certain, one wonders whether California’s death penalty system may soon be receiving a death warrant of its own.

The amicus brief filed in Jones v. Davis by Loyola Law School's Alarcón Advocacy Center is below: