The notices of appeal have not yet been filed, but a state’s appeal of the District Court’s order vacating Jones’s death sentence by the invalidation of the California death penalty to the Ninth Circuit is certain. (Jones v. Chappell, No. CV 09-02158-CJC (CD Calif. 7/16/14))
Observers have already marked the decision for reversal by an appellate court and even supporters of death penalty reform find the opinion quixotic. (

The basic facts are settled. Jones was convicted of first-degree murder and rape accomplished with use of a knife. He had been released on parole after a conviction for rape and burglary 10 months before the murder. Those who review the full facts of this case will probably conclude there is little chance of Jones’ successfully challenging the conviction for lack of evidence or the jury’s choice of death over life without parole. (People v. Jones, 29 Cal.4th 1229 (2003)) However, Jones raised 30 procedural issues in his still-pending habeas corpus petition, and therefore many issues connected to the trial are unresolved.

The Jones opinion we have now is wholly concerned with the single issue of post-conviction delay. After Jones was sentenced to death in April 1995, his sentence was affirmed on March 17, 2003 by the California Supreme Court. (People v. Jones, 29 Cal. 4th 1229 (2003))
After certiorari was denied by the United States Supreme Court, the judgment became final on October 21, 2003. (Jones v. California, 540 U.S. 952 (2003)) In total, Jones spent about eight years litigating his direct appeal before the California Supreme Court ”—considerably less time than the 12 to 14 years spent by most individuals on California’s Death Row.”

By October 21, 2002, Jones’s counsel filed his first state habeas petition. On March 11, 2009 the California Supreme Court denied Jones’s petition. During this interval, Jones filed a second and third habeas corpus petition.

On March 27, 2009, Jones filed his ex parte application for appointed counsel. The elapsed time from conviction to entry into the District Court was 14 years.

Briefing on the petition was completed in January 2014, and the District Court is still considering the matter. However, on July 16, 2014, the Jones decision overturning the California death penalty was issued. The time to decision was 5 years.

The District Court estimated that a decision on Jones’ pending habeas petition could take until the end of the year. Review at the Ninth Circuit will take another 2.2 years. This approximates 3 more years.

Accounting then for the time spent seeking en banc review from the Circuit and certiorari from the United States Supreme Court, and assuming relief is denied at every level, the federal stay on Mr. Jones’s execution could be lifted, and he could be ready for execution within three or four years, an elapsed time of 25-26 years, with a total of 11 or 12 years within Federal jurisdiction. (The District Court stated that Jones would be in federal litigation for “about 23 years,” a figure which seems to wrongly reduce Jones’ time within federal jurisdiction by 2-3 years.)

Assuming 26 years is the correct number, Jones will have spent 14 years, about 53.8% of his total litigation time, under state jurisdiction and 12 years, or 46.2% of his time, within federal jurisdiction.

Thus, the District Court deserves 46.2% of the blame for the delay in Jones’ estimated execution as this is the portion of Jones’ litigation time attributable to the federal courts. Yet the decision is directed solely to state court delay.

The District Court concluded that the delay between conviction and execution depends “upon a factor largely outside an inmate’s control, and wholly divorced from the pen[a]logical purposes the [s]tate sought to achieve by sentencing him to death in the first instance . . . “ The delays in how quickly the inmate proceeds show the “state’s dysfunctional post-conviction review process.”

The District Court concluded that the death penalty is being inflicted by the state “arbitrarily. Indeed, it smacks of little more than a lottery system.” (Furman v. Georgia, 408 U.S. 238 (1972) [Brennan, J., concurring])

The District Court took aggregate figures concerning Death Row inmates and expanded its conclusion. “By comparison, of the 380 inmates . . . who are currently on Death Row, 285 have been there longer than Jones . . . [B]ecause of the inordinate delays inherent in California’s system, many of the rest will never be executed. They will instead live out their lives on Death Row.”

There is no doubt that the District Court condemns only state processes: “The Eighth Amendment simply cannot be read to proscribe a state from randomly selecting which few members of its criminal population it will sentence to death, but to allow that same state to randomly select which trivial few of those condemned it will actually execute.”

The placing of blame is underlined by the District Court’s failure to address any federal responsibility for the delay or to issue relief against the federal courts. However, if “[a]rbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises,” it must surely apply to the 46.2% of the total delay and dysfunction.

Of course, there might be quibbles about the time involved in either system. For instance, the docket shows that Jones filed his petition in 2009, but the District Court seems to start the debut of his time within the federal system as March 10, 2010, when counsel filed his petition for Jones. This is a year which should be charged to the federal system. And of course, if the federal time totals 12 years, then using the District Court’s figure of 23 years yields a percentage of 52%, a result implying more delay to the federal system than the state system.

This article does not purport to advance all the arguments which may be brought to bear against the opinion. Clearly, still available to the state is the issue of whether post-conviction death penalty delay is sui generis; whether pre-conviction delay is equally arbitrary and should also be condemned; whether there is sufficient evidence in the record to justify the sweeping conclusions about delay for all death-row inmates without detailed examination of each death row case; and the issue of whether being alive in limbo, the evils of which the District Court described, is worse than being speedily executed.  (Cf. Robertson v. Florida, No. SC13-443 (S.Ct. Fla. 07/10/2014))

Rather, the allocation of blame for the system’s “dysfunction” made by the District Court is lacking in systemic analysis.  Unless the entire system of post-conviction review, state and federal, is critiqued, the laying of blame on the state procedures alone cannot be comprehensive.  If there is blame, the federal courts are subject to the same criticisms as the state courts.

The real problem missed by the District Court and never addressed is that the delay is caused by state and federal court procedures, not the state penalty of death.  It is not difficult to imagine that there is comparable delay in those appealing a sentence of life imprisonment without possibility of parole.  What number of years’ delay in state and federal post-conviction processing of lifers’ legal claims would prompt the District Court to invalidate the punishment of life imprisonment without parole?

At some point, then, the District Court, however eloquently it articulates the problem of delayed justice, must confront its federal post-conviction delays which hinder justice.  Otherwise, it may be accused of placing a predetermined goal, the elimination of the state death penalty, ahead of real judicial reform of state and federal post-conviction remedies.