Last week, a three-judge panel overturned a district court’s ruling that delays in California’s death penalty make the procedure arbitrary and therefore unconstitutional. While that got the headlines, beneath that is the fine print that the court did not weigh in on the merits of the argument.
Instead, the court argues, “Because Petitioner asks us to apply a novel constitutional rule, we may not assess the substantive validity of his claim.”
Last year, Federal District Judge Cormac J. Carney wrote in a decision: “On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come.”
“Mr. Jones is not alone,” wrote Judge Carney, “Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution.”
He added, “Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As 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.”
Federal Appellate Judge Susan P. Graber, writing for the court, notes, “Many agree with Petitioner that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary.”
However, she writes that “the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.”
Scott Martelle, writing for the LA Times, notes, “In one sense, the decision is a loss for those hoping for an end to the death penalty (me among them). But it’s also a non-decision because the appellate judges didn’t take up the heart of Carney’s ruling, and his logic is quite compelling.”
He continues, “In a nutshell, the very structure of California’s death penalty means that who among the condemned actually gets put to death is determined by an arbitrary process that drags out so long that the execution serves neither as a deterrent nor as an act of retribution, important thresholds under previous Supreme Court decisions.”
“That argument,” he writes, “is still out there, even if the appellate court decided it couldn’t review it under court rules established under the Clinton-era Antiterrorism and Effective Death Penalty Act of 1996.”
“The rule is that the federal courts can reverse the state criminal cases for constitutional violations only if the law is ‘well established,’” says Natasha Minsker, director of the ACLU of California’s Center for Advocacy & Policy. “The idea is that the state courts can only be expected to implement federal rules that they know about. The state courts can’t be expected to guess how federal judges will interpret the constitution in the future. The problem: That prevents the federal courts from addressing constitutional violations in many criminal cases.
“It’s sort of like instant replay in sports before you could review a call. The ref makes a call, everyone watching at home sees it was a mistake, but it couldn’t be fixed.”
In short, the 9th Circuit ruled that they lack the authority to “assess and rule on the merits of Carney’s decision.” Mr. Martelle notes that the state Supreme Court could do so, “but it will be a challenge.”
Mr. Martelle continues, arguing that “this is another place where the credibility of the legal system crumbles. If the appellate courts can’t be led to address the basic question of whether the design and implementation of the state’s capital punishment is unconstitutional because it engenders decades-long delays between the crime and the punishment, and the ultimate decision of who gets put to death when is arbitrary, then where does that argument get aired?”
It seems then that, unlike gay marriage, the issues of the death penalty may have to be addressed by the voters. In 2016, there may be competing measures on the ballot. One would ban the death penalty. The other would speed up the process and narrow the sorts of appeals that can be argued. Neither have even reached the circulation process yet.
—David M. Greenwald reporting
““the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.”
The thought that our justice system is not obliged to take into account “later emerging legal doctrine” is unfathomable to me. This would be like saying that only those medications that were available to a person at the time they developed a disease could be used by them and that they were not eligible to take any medications developed subsequently. Is our legal system concerned at all with what is just, or only that which is established by precedent regardless of how unjust that precedent might be ?
“this is another place where the credibility of the legal system crumbles.”
The credibility of our legal system is not in the process of crumbling; it finished crumbling a long time ago and is now rubble turning rapidly into gravel while a steady stream of idiots with authority exhort the sheep to “ignore the man behind the curtain.”
As for the death penalty, no government should ever be empowered with that power as yet another arbitrary and selective means of intimidation and suppression, the functions all governments seem to be able to carry out even when they are inept at all else.
Ok… understand at one level, your opposition to “government” taking a life.
Would you feel the same way that it is unjust to kill someone who is currently threatening you or a loved one? “The people” decided to take out criminals (and themselves) over Shanksburg, PA. Were they “wrong” in deciding to kill those “innocent until proven guilty” perpetrators? It was a pure democracy. This is not a “simple” matter.
Does Himmler’s, Goering’s death sentence offend you? Is the “state” complicit in Jeff Dahmers’ death?
hpierce, very good questions.
First, it is absolutely not unjust to kill someone who is currently threatening you or a loved one. May anyone ever in that situation shoot straight and effectively (the true meaning of “gun control”) or effectively use whatever weapon is necessary to be 100% successful in defense of self and the innocent. If scumbags die, so be it. May the lingering psychological cost to the successful defender(s) be minimal.
Regarding Shanksburg, you are right that it is not a “simple” matter, but whether everyone on that plane had a vote or not, it was known to the ones who made the decision that everyone was going to die if they did nothing. They are unlikely to have decided to kill themselves along with the scumbags as a first objective, but they very likely knew it was a possibility or a probability if they were unable to “neutralize” the scumbags and take control of the plane. This was not a matter of a government being delegated the legal authority to kill someone, and I do not second guess the decisions of anyone on that plane except for the scumbags.
As for Himmler, Goering, et al., sometimes governments that are given the legal authority to kill people, kill people who deserve to die. That does not eliminate my opposition to giving any government that legal authority.
Well said, Mr. Pig. You articulated my position exactly. Permanent removal from society for the most heinous of crimes is fine with me; the state should never murder caged human beings.
I agree with Pig. No government should ever be empowered that way.
“The other would speed up the process and narrow the sorts of appeals that can be argued.”
If the process was sped up, wrongfully convicted Damien Echols would have passed away in prison. He is now a “free” man.
I suppose if juries got the verdict right in every trial, my objection would seem moralistic, but since we know that they don’t, by the lucky survivor’s and unlucky decedents we are aware of, it’s common decency.
;>)/
the fact that death penalty cases at least in most states get more resources for attorneys and investigators and still get cases wrong – a lot – should scare the crap out of peopele.
source:
https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/03/17/most-death-penalty-sentences-are-overturned-heres-why-that-matters/
hpierce
“This is not a “simple” matter.”
I agree with you that cases of imminent threat are not a simple matter. But that is not what we have with the individuals who are incarcerated. They have been rendered not dangerous to the rest of us. As such the state has no interest, and in my view, no right to end their lives. As for Himmler, Goerinig….etc. as soon as they were imprisoned, they also were no longer a threat and thus should not be subject to capital punishment.
“They have been rendered not dangerous to the rest of us. As such the state has no interest, and in my view, no right to end their lives.”
I suppose they’re no threat to anyone but the guards, prison medical (dental/psychiatric/nursing/dietician) educational and spiritual/religious staff, and other inmates who come in contact with them. Even a caged animal can hurt a person. I know a woman who was volunteering at a shelter in NV and was bit by a pit bull there.
But I do not believe in the death penalty under any circumstance, ever.
sisterhood
The word from a prison psychologist is that physical attacks on medical and other ancillary personal are extremely rare. Yes,there is some danger to custody, and even more to other prisoners, but this is not coming from those on death row, but rather from the at large population. Even in the recent major riot at Folsom prison, not a single prison employee was targeted or injured.
On your final point, we are in complete agreement.
More food for thought on this subject:
http://www.santacruzsentinel.com/general-news/20151114/scott-herhold-innocence-project-goes-to-bat-for-convicted-killer-david-losoya