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California Judge: Delays Make Death Penalty Unconstitutional

An Orange County, California, judge has ruled the state's death penalty unconstitutional. U.S. District Court Judge Cormac J. Carney says California's death penalty inflicts cruel and unusual punishment, not because state-sanctioned killing of captive convicts is abhorrent, but because California doesn't kill Death Row inmates quickly enough:

[Carney] noted that more than 900 people have been sentenced to death in California since 1978 but 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,” Carney wrote.

...The “random few” who will be executed “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” Carney said [Maura Dolan, "Federal Judge Rules California Death Penalty Is Unconstitutional," Los Angeles Times, 2014.07.16].

The language in that last sentence is important. In the 1972 Furman decision, the U.S. Supreme Court abolished capital punishment on the grounds that weaknesses in due process allowed judges and juries to impose the death penalty in "an arbitrary and capricious manner" that did not deter or punish crime. States quickly reworked their capital punishment laws, and we were back to killing convicts by 1977.

Citing Furman in his 29-page ruling, Carney says California is back to an arbitrary and capricious system that does not deter or punish crime, in which the state says to a convict, "You're going to prison for life, but there's a 1.4% chance we'll kill you." Keeping that chance of death at 1.4% requires engaging in an appeal process that currently averages 25 years and is getting longer.

One could argue that the delay in carrying out the death penalty is the convict's fault. If convicts would just waive their appeals beyond those mandated by law, the way murderer Eric Robert did to expedite his death in 2012, the arbitrary delay would disappear.

But Carney rules that the state, not Death Row inmates, is gumming up the works. California has reduced funding for public defenders. Low pay for public defenders taking on this tough appeal cases contributes to a shortage of public defenders. Convicts may not receive counsel to take up their appeals for more than a decade. Once lawyered up, even if convicts make their appeals as non-dilatorily as possible, the California Supreme Court is still taking an average four years to decide habeas petitions.

Carney's ruling reminds me of South Dakota Rep. Rev. Steve Hickey's position on capital punishment. When he announced his conversion against the death penalty last summer, Rep. Rev. Hickey said that killing convicts might serve its purpose if we made executions "swift, painful, ugly, and public." But such killings are cruel, unusual, and un-Christian. Hence, Hickey's effort to repeal South Dakota's death penalty.

Justice and Furman require that we not kill swiftly. But the delays in the due process California adopted to answer Furman violates the Eighth Amendment as surely as too-swift pre-Furman executions. Killing bad men may satisfy our primal impulses, but we can't shoehorn frontier justice into a framework of Constitutional due process.


  1. Craig 2014.07.17

    I'll never understand the argument for the Death Penalty. I'll concede a great number of people believe in a concept of "hell" where someone would suffer, but in theory these same people should also believe in forgiveness - thus there is a chance the convict wouldn't actually be punished at all and would find peace in death.

    Thus if we toss aside the religious argument, we need to concede that sitting in a cell for the rest of one's life is greater punishment than a quick and painless death ever could be. We also know it is less expensive to lock someone up than it is to put them to death due to continual appeals and the drawn out process of actually putting someone to death.

    More importantly however, elimination of the death penalty eliminates the chance of human error resulting in an innocent person's death. We humans are not perfect and never will be. Mistakes are made, and even if one innocent person is put to death, the concept of justice goes out the window. As MLK Jr. once said, "Injustice anywhere, is a threat to justice everywhere".

    Then of course we have the issue of society striving to be better than the worst of us. If we feel killing the killers is a justifiable response, are we really any better than those we put to death? The fact is, we as a society are guilty each and every time we put someone to death, because we (as a society) have allowed it. We cannot sit idly by and place blame upon the few individuals that perform the actual punishment but rather we need to accept our responsibility and culpability in the act itself.

  2. mike from iowa 2014.07.17

    Pendulum is slowly swinging back from the edge on all social issues,except a woman's right to choose. That will also swing back to center-left in the near future. I find it disconcerting that when so many people on death row are being exonerated,factions in this country wanted to end all but one death sentence appeal and none after 30 days have passed. If all life is precious as some claim,why have a death penalty?

  3. Jerry 2014.07.17

    Release the non violent offenders (pot smokers and petty criminals) and incarnate the dangerous ones in public prisons. End the death penalty and private prisons. That would save billions and billions of dollars each year and keep those that are a menace to society where they can do no harm to the society they hate.

  4. bearcreekbat 2014.07.17

    In the 18th Century Blackstone wrote, "It is better that ten guilty persons escape than that one innocent suffer." This principle comes from the Bible. A frequent source is Abraham's questions to God about the destruction of Sodom and Gomorrah in Genesis 18:23-32 in which God said he would spare everyone in the City if there were even ten innocents.

    The danger of the state executing someone wrongfully convicted seems to fit squarely within this principle. Under these circumstances it is difficult to understand why so many Christians support the death sentence. I truly admire Rev. Hickey's efforts to change their minds.

  5. Roger Cornelius 2014.07.17

    Thou Shall Not Kill*

    *Note that there is no * after that Commandment where murder is justified. The Bible will likely argue otherwise, so what do you believe, the Bible or the Ten Commandments?

  6. Bill Fleming 2014.07.17

    Hopefully Troy Jones will check in here. As I recall he has a strong libertarian/Republican argument that goes something like: "A government that has the power to execute its citizens has too much power." I must admit, I hadn't really looked at the issue in that context before, but I've thought a lot about it ever since he brought it up. And it makes a lot of sense as a purely political position.

  7. Bill Fleming 2014.07.17

    Another factor that got a lot of back and forth the last time this topic was debated on the SD blogs was the question of whether our prisons are secure enough to ensure the safety of guards and other prisoners in the presence of cold blooded, sociopathic, pathological murderers. Can they be safely and securely contained? If I recall, Kevin Woster put this question to Mr. Stacey Nelson repeatedly (Nelson was arguing FOR CP) and never really did receive a hard answer. But it was pretty clear to me that Nelson thought that the only way to guarantee a hardened killer wouldn't kill again would be to execute him(her). Which of course, begs Mr. Jones's question.

    That in a nutshell recapituals the Pro/Con debate on CP on the Republican side of the aisle. Please, guys, correct me if I have somehow misrepresented either of you here.

  8. Bill Fleming 2014.07.17

    ...recapitulates... sorry.

  9. Steve Sibson 2014.07.17

    Anybody here believe the guy in Texas who allegedly killed 6 members of a family could be innocent and the trial should last more then 10 minutes and the death penalty should not be done the same day?

  10. larry kurtz 2014.07.17

    "alleged" killer stoned by flash mob: story at six.

  11. Steve Sibson 2014.07.17

    "If all life is precious as some claim, why have a death penalty?"

    Then no abortion should occur until after due process has been satisfied. If the death penalty is no longer available, the child spends the rest of the life in prison without parole after it is born. What impact would that have on society?

  12. larry kurtz 2014.07.17

    a foetus has no civil rights until the third trimester.

  13. Craig 2014.07.17

    Steve: "Anybody here believe the guy in Texas who allegedly killed 6 members of a family could be innocent and the trial should last more then 10 minutes and the death penalty should not be done the same day?"


    I'm not intimantly familiar with the case, thus will not state guilt or innocence. However even if there were many facts which were not in dispute, I believe a trial should last more than 10 minutes. In fact justice demands so. The prosecution has a duty to present a legitimate case which includes solid evidence. In such a high-profile case involving multiple murders, I cannot envision even opening arguments would take less than 10 minutes. Assuming there isn't a legitimate defense maybe the trial could be over in a day or three... but 10 minutes is insufficient to dispense justice. Period.

    Such a trial may last only 10 minutes in North Korea or Iran... but in the US? I'd hope our judicial system is better than that.

    Also, I don't believe the death penalty is a valid form of punishment, thus even if found guilty without a shred of doubt I still wouldn't condone the usage of CP. I freely admit the vast majority of those sitting on death row are guilty and many are guilty of horrific crimes... crimes most of us would be uncomfortable even speaking of. Yet I still cannot support the usage of CP.

  14. bearcreekbat 2014.07.17

    Sibby, what if the killer is found to mentally ill and not responsible for his actions? Surely you do not advocate that the state kill mentally ill individuals?

  15. Roger Cornelius 2014.07.17

    You do understand the difference a woman getting an abortion, which is personal supported by Roe vs. Wade and the state sanctioned homicide of those sentenced to death?

  16. bearcreekbat 2014.07.17

    mike, that is a troubling link.

  17. Roger Cornelius 2014.07.17

    From 1973 to March of this year The Innocence Lists show that 144 death row inmates have been exonerated, pardoned, have had charges dismissed, acquitted, or have taken an Alford plea.
    Some of those that have taken the Alford plea, acknowledging guilt, have done so in spite of the fact that evidence proved their innocence and the state would not accept their own errors in prosecuting a case. They are usually sentenced to time served and released.
    It does appear that the Innocents List is not fully update, I'm aware of a few others cases that were not mentioned.
    What is disconcerting is the time prior to the reintroduction of the death penalty, how many innocent men and women have been murdered by the state? It is a scary notion that a person's civil rights were killed because of self-righteous law based on a biblical quote, "an eye for eye...."

  18. mike from iowa 2014.07.17

    bearcreekbat,the other link I posted might be even worse. According to officials,prosecutors are free to withhold exculpatory evidence at their own discretion. One prosecutor admitted he witheld evidence because he figured the defense would use it to fabricate a defense to prove their client was....innocent.

  19. mike from iowa 2014.07.17

    er-these statistics from the Innocence Project should give everyone pause about the accuracy of our judicial system.

    But DNA has blown the lid off of even the extravagant assessment of Huff, Rattner, and Sagarin. DNA analysis has suggested that all of the experts-wise judges like Learned Hand, dedicated police officers, liberal academics, and hard-working lawyers on both sides of the bar-have all underestimated the rate of wrongful conviction. Last year’s best-seller Actual Innocence by Barry Scheck, Peter Neufeld and Jim Dwyer suggested the true rate of wrongful convictions may be closer to ten percent than to one-half of one percent. DNA tests used before trial have exonerated at least 5000 prime suspects out of the first 18,000 DNA suspect samples at the FBI and other crime labs-suggesting a pre-trial error rate of more than 25 percent. Since 1977, some 553 people have been executed in the United States while another eighty death row inmates have been released after they were found innocent. For every seven executed, one innocent person is freed-an “error rate” of more than twelve (12) percent. In the State of Illinois, 12 people have been executed since 1977 while 13 have been released after proving their innocence-an error rate of 52 percent. Last year the Governor of Illinois-who supports the death penalty-finally called a moratorium on the use of the death penalty until all of the quirks in the process are ironed out.

  20. caheidelberger Post author | 2014.07.17

    Due process for every citizen, Sibby. Due process for that Texas defendant. Due process for Annette Bosworth (of whose guilt I am entirely certain). Due process for Richard Mette (who raped a child entrusted by the state to his care).

    Due process for the death penalty takes too much time and money. The solution is not to hang 'em high and hang 'em now. The solution is to eliminate that penalty, give life sentences, and use the resources we improve our criminal justice system (or give folks a tax break, or build parks, or...).

  21. Roger Cornelius 2014.07.17

    Mike from Iowa,
    There have also been cases documented where men have been proven innocent by DNA evidence after they were executed.
    Additionally, I wonder how many inmates serving sentences of life, life without parole, or the equivalent of a life sentence have been exonerated. A death sentence is harsh, but maybe a life sentence for an innocent man is worse.
    CNN is doing a series called Death Row Stories on Sunday night about those that have been exonerated, they are compelling stories and show the weakness of our system when it comes to the death penalty.
    One of the factors I have noticed is the pattern of denial by judges and prosecutors when there is a wrongful conviction. Their remedy is almost always forcing an inmate to accept an Alford plea so that they don't have to accept responsibility for their screw ups.

  22. Douglas Wiken 2014.07.18

    As Cory has indicated, Steve is mixing apples and oranges with his argument. Craig has made many good points and Bill Fleming brings up the argument that I think should be telling to those who hate big government. Giving the government the power to kill guilty or innocent is giving politically ambitious politicians and bureaucrats too much power.

    There is a legal comment something like, "Tough cases make bad law." Egregious, sadistic, vicious, diabolical murders by the sane and insane make it seem like a death penalty is somehow essential. It isn't and it has too much in common with family, tribal, radical religious violence and feudal vengeance and little to do with public good and sensible government.

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