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.