San Quentin State Prison.
San Quentin State Prison. (Photo: Eric Risberg/AP)

A federal judge’s decision striking down California’s death penalty would be unlikely to receive a warm reception from the U.S. Supreme Court, which repeatedly has turned away similar challenges during the past 20 years.

U.S. District Judge Cormac Carney of Santa Ana, Calif., ruled on July 16 in Jones v. Chappell that the state’s death penalty violates the Eighth Amendment ban on cruel and unusual punishment. The state’s death penalty, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.

Those delays exceed 25 years on average, said Carney, who was appointed by President George W. Bush, and “are inherent to California’s dysfunctional death penalty system, not the result of individual inmates’ delay tactics, except perhaps in isolated cases.”

The national average of time to execution was an estimated 12.5 years between 2000 and 2012. In 2012, the delay increased to 15.8 years, according to the U.S. Department of Justice.

California Attorney General Kamala Harris had yet to announce whether she would appeal to the U.S. Court of Appeals for the Ninth Circuit.

“It doesn’t totally surprise me that every few years a judge will speak honestly about what’s going on,” said death penalty litigator Bryan Stevenson of the Equal Justice Initiative. “Although some people would disagree with his legal conclusion, most people don’t disagree with his analysis of how things are functioning.”

Carney’s decision differed from rulings by other state and federal judges who have identified various problems with death sentences, said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.

“The judge here has pulled together all of the ways the system is dysfunctional,” she said. “He is not challenging the policy per se; he is saying that in practice, this isn’t working in a constitutional way. His analysis is applicable to the rest of the country. It has implications certainly for the Supreme Court, but also for policy analysis.”

‘Lackey’ claims

In his 29-page Jones decision, Carney wrote that since 1978, when California voters restored the death penalty, more than 900 people have been sentenced to death. Of that number, he said, 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 wrote.

Ernest Dwayne Jones, who raised the constitutional challenge, has been on the state’s death row for nearly 20 years. He was sentenced in 1995 for the 1992 rape and murder of his girlfriend’s mother.

His claim of unconstitutional delay in the death penalty system is known as a Lackey claim, first raised in a 1995 U.S. Supreme Court case, Lackey v. Texas. Although the justices denied review of that claim, then-Justice John Paul Stevens wrote separately of the opportunity for state and federal courts to “serve as laboratories” for further study of the issue.

However, since Lackey, the high court has denied review of the claim in multiple petitions filed by prisoners. Besides Stevens, Justice Stephen Breyer has repeatedly dissented from those denials, writing in 1999: “Where a delay, measured in decades, reflects the state’s own failure to comply with the Constitution’s demands, the claim that time has rendered the execution inhuman is a particularly strong one.”

Justice Clarence Thomas has responded to those sentiments, saying: “It is incongruous to arm capital defendants with an arsenal of ‘constitutional’ claims with which they may delay their executions, and simultaneously to complain when executions are invariably delayed.”

In 2011 in Valle v. Florida, the Supreme Court refused to halt the execution of Manuel Valle, who had been on death row for 33 years. Breyer dissented. “I have little doubt about the cruelty of so long a period of incarceration under sentence of death,” he said.

“It might also be argued that it is not so much the state as it is the numerous procedures that the law demands that produce decades of delay,” Breyer continued. “But this kind of an argument does not automatically justify execution in this case. Rather, the argument may point instead to a more basic difficulty, namely the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”

Going forward

The high court’s denials of Lackey claims have come in cases in which the inmate is the petitioner, said Kent Scheidegger of pro-death penalty Criminal Justice Legal Foundation. The justices might be more willing to review a case if the state were the petitioner because it had lost in the lower courts, he said, adding, “Hopefully, we won’t get to that point.”

Scheidegger said there is “no valid reason” not to appeal Carney’s ruling.

“I’m sure every death row inmate is going to make this claim, and there may be other judges following suit. What I hope [the decision] does is serve as a catalyst for those people derelict in their duty to get on the ball and do something about the delays. The delay is attributable in very large part to the defense bar and their tactics.”

However, in the California case, Carney did not blame the defense bar or inmates. He outlined how, in his view, the state system has become unworkable:

Death row inmates wait three to five years for counsel to be appointed for their direct appeals, he said. After direct-appeal issues are briefed, two to three years are spent waiting for arguments to be scheduled before the California Supreme Court.

In the next step—state habeas review—at least eight to 10 years elapse between the verdict and appointment of habeas counsel. After that counsel is appointed, underfunding hampers investigation of potential habeas claims, Carney said.

After habeas briefs are submitted, another four years go by before the state Supreme Court denies the inmate’s claims in a generally conclusory opinion that will slow review of the inmate’s federal habeas claims, he continued. After filing a federal habeas petition, many inmates, because of deficiencies in the state’s process, must go back to state court to exhaust state claims.

“Whether other courts—and ultimately the Supreme Court—would reach the conclusion that this violates the Eighth Amendment is doubtful, given the composition of the [Supreme] Court,” said death penalty litigator Stephen Bright of the Southern Center for Human Rights.

But Bright added that the opinion has “legs” in that, “at the very least,” it will keep the conversation going in California and elsewhere about the death penalty. That conversation, he said, was pushed forward by the botched execution in Oklahoma; President Obama’s comments about race; inconsistency and innocence with regard to the death penalty; and the abandonment of the death penalty by six states and moratoriums declared by the governors of Colorado, Oregon and Washington.

“There is serious reexamination of the death penalty throughout the country and this will add to one of the reasons that prosecutors and legislatures are considering abandoning capital punishment—it costs too much, takes too long and accomplishes too little, if anything,” he said.

Contact Marcia Coyle at mcoyle@alm.com.