No Way To Die In California

The execution chamber in San Quentin State Prison, located in Marin County, California. Its last use for its intended purpose was January 17, 2006.

On July 16, 2014, United States District Judge Cormac J. Carney¹ found that California’s death penalty was an unconstitutional violation of the Eighth Amendment’s ban on cruel and unusual punishment.

The case in which Judge Carney found occasion to examine the way California administers its death penalty involves one Ernest Dewayne Jones, the ongoing life of whom almost nobody in California will celebrate. In 1992, Jones raped and murdered his then-girlfriend’s mother; he had been out of prison on parole for a little bit more than nine months; his previous conviction was also for rape. He was convicted in 1995 of those crimes and sentenced shortly thereafter to be executed. But Jones’ unsuitability for participation in civilized society is quite beside the point here once we understand that he did commit murder, and was sentenced in accordance with state law.

It’s what happens after that sentencing that’s interesting to this case.

The text of the Constitution pretty clearly allows for the death penalty, in theory: the Due Process clauses of the Fifth and Fourteenth Amendments allow the taking of “life” after due process is afforded; the Eighth Amendment forbids cruel and unusual punishments, but this does not per se exclude death. But what can happen is that a state might have a pattern or practice of implementing the death penalty which violates the Eighth Amendment. Furman v. Georgia (1972) 408 U.S. 238. This is what Judge Carney found is happening in California, and for rather different sorts of reasons than the Supreme Court considered back in 1972 in the Furman case.

California reinstated its death penalty by passing Proposition 17 way back in 1978. Until last week, the death penalty may only be imposed for first-degree murder with “special circumstances”² that would permit the sentence of death to be imposed.

California’s justice system provides an automatic appeal, and an automatic habeas corpus case to determine the State’s compliance with Federal law and/or to take a shot at proving actual innocence, both with counsel paid for at state expense in the event of indigency. Every one of the defendants sentenced to death has been indigent, and there is very little reason to think that any future defendants will ever be otherwise.

No one really has a theoretical problem with this, so far as I can tell; even the death penalty’s most strident proponents are well aware of the qualitative stakes and irrevocability of capital punishment, and do not begrudge defendants the right to insist upon exercising all of their legal rights before the needle (or, previously, the cyanide pellet) is applied.

There have been some critics of the use of the system as a dilatory tactic — repeated appeals and reviews and filings based upon questionable “newly-discovered” evidence have led to some stern pushback from the bench in the past and made for powerful political fodder in certain elections. But the automatic direct appeal, and at least one habeas case, pretty much everyone thinks is reasonable.

Difficult questions have arisen concerning defendants who admit their guilt or who wish to waive their habeas cases to proceed to execution, but again, that’s not the case before us.

The case before us comes in a very large part from the fact that these institutionally-mandated appeals take, on average, twenty-five years to reach ultimate disposition. Of those twenty-five years, more than seventeen are spent before the California Supreme Court. Slip op. at 4:5-9.

Of the 893 criminals who have received the death penalty in sentencing since Prop. 17 was passed, 13 have actually been executed (in California; one prisoner was extradited to Missouri, which then executed him there). More Death Row prisoners have died of suicide (20) natural causes (63), and drug overdoses or violence from other prisoners (8) than at the hands of the State of California in the post-Prop. 17 world. The most recent execution took place on January 16, 2006, when Clarence Ray Allen, aged 76, was executed for three murders he masterminded in an attempt to conceal evidence of a foiled grocery store robbery attempt in 1974.

Indeed, since reinstatement of the death penalty, only about one in six prisoners ever completes the judicial review process at all. Admittedly, most are still in the process and could theoretically complete it. Roughly 60% of the judicial reviews result in some form of relief — usually a commutation of the sentence from death to life. But, in many of those cases, prosecutors appealed those rulings, reinstating the death penalty at a later stage. When the death penalty is reinstated, the judicial review process begins anew.

Much of the slowness comes from the fact that it can take three to five years for the indigent defendant sentenced to die to get appointed a qualified attorney. There is no particular shortage of attorneys willing to do the work, but they do want to get paid, and the budget to pay for these lawyers is low enough that only about forty or so a year can be appointed. And when these lawyers do get appointed, the rates of pay are much less than attorneys of this caliber can typically command from private clients.⁴

Then, the initial review and briefing takes about four years, and since the California Supreme Court budgets time to hear and review between 20 to 25 cases a year, getting oral argument on the briefs can be a lengthy process: the initial mandatory review is not typically disposed of until about thirteen years after sentencing. Slip op. at 8:28 – 9:2. An argument available to prisoners is ineffective assistance of counsel, so after each phase of a case, a new attorney is appointed who looks back over the work done by her predecessors, and if the quality of that work is found wanting, then the case regresses back to the point when that attorney was appointed and a new review takes over with new lawyers.

State-level habeas corpus proceedings also use appointed counsel paid at public expense, and those attorneys are not typically appointed until eight to ten years after initial sentencing. Slip op. at 10:22-24. In practice the state-level collateral review process then takes an additional four years to resolve. Slip op. at 11:4-6.

On average, the prisoner has been cooling his heels on Death Row for seventeen years by this point. Now, he (for it is almost always a “he,” only 20 women are currently under sentence of death in California compared to over 700 men) gets to go to Federal court.  In theory, a Federal habeas corpus review is limited to the facts and issues considered in state court proceedings, so if new facts have been discovered, the Federal habeas petition is suspended while the prisoner’s legal team goes back to the state courts to explain why, eighteen years after sentencing, they just found new evidence that their predecessors could not have presented at an earlier stage. (Development of advanced DNA testing technology might be one such good reason — if the samples being tested are still available and reliable.) Roughly three-quarters of Federal habeas corpus proceedings are thus interrupted, with each such interruption lasting more than three years. Slip op. at 13:11-14. Then with the appeal to the Ninth Circuit, then to the U.S. Supreme Court.

This defendant’s case is roughly on pace with these historically-accumulated averages: he committed his heinous crimes in 1992, was convicted and sentenced in 1995, got an initial appointment of appellate counsel in 1999, his direct appeal was completed in 2003, then affirmed by U.S. Supreme Court the same year. His state habeas appeal began in 2000 (there is no bar to a habeas petition being heard while the direct appeal is pending) which took two years to prepare and more than five years for the state’s Supreme Court to deny in a memorandum opinion after only token opposition by the state. He filed his Federal habeas petition in 2010, and briefing took four years thereafter. So he’s now nineteen years in to the system, and is at the moment seems to be moving just a little bit faster through the process than the average Death Row inmate on his Federal habeas petition.

One grounds for his federal habeas petition which he recently added⁵ was that all of the delay that seems baked into this system produces an effectively random imposition of the death penalty on only a very small number of prisoners, resulting in what for all intents and purposes is an arbitrary and capricious administration of the death penalty.

Judge Carney bought into this argument:

California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death. Of the more than 900 individuals that have been sentenced to death since 1978, only 13 have been executed. For every one inmate executed by California, seven have died on Death Row, most from natural causes. The review process takes an average of 25 years, and the delay is only getting longer. Indeed, no inmate has been executed since 2006, and there is no evidence to suggest that executions will resume in the reasonably near future. Even when executions do resume, the current population of Death Row is so enormous that, realistically, California will still be unable to execute the substantial majority of Death Row inmates. In fact, just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years. Such an outcome is obviously impossible for many reasons, not the least of which is that as a result of extraordinary delay in California’s system, only 17 inmates currently on Death Row have even completed the post-conviction review process and are awaiting their execution. Slip op. 17:7-21.

He provides an appendix listing every single prisoner currently sentenced to death in California’s justice system and the status of their cases, complete with handy color-coding.

Here’s where I focus my reasoning: the way that those unlucky few in this system who do ultimately get the needle are chosen,

…their selection for execution will not depend on whether their crime was one of passion or of premeditation, on whether they killed one person or ten, or on any other proxy for the relative penological value that will be achieved by executing that inmate over any other. Nor will it even depend on the perhaps neutral criterion of executing inmates in the order in which they arrived on Death Row. Rather, it will depend upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process. Slip op. at 17:27 – 18:7.

Just a quick note in translation: the “penological purposes” which the opinion refers to are the reasons we have prisons in the first place: 1) retribution or punishment for its own sake; 2) specific deterrence of incorrigible individuals; 3) general deterrence of society as a whole; 4) rehabilitation of people to subsequently behave in compliance with the law. I’m very skeptical of the power of capital punishment as a general deterrent and it’s obviously of zero rehabilitative value, although I concede that as a specific deterrent it is remarkably effective. More about retribution below.

With that in mind, you have the beating heart of Carney’s opinion before you. It’s basically a grim lottery system, with actual capital punishment allocated randomly, not serving any recognized purpose of punishment.

Bear in mind that the imposition of dread upon the prisoner within the kafkaesque system is not the reason here, or at least not the inherent reason. It is the effectively random nature of when and upon whom the punishment is meted out.

As the Gray Lady notes, Judge Carney isn’t exactly an outlier in terms of skepticism about the delay of justice being equivalent to its denial — Justices Antonin Scalia and Anthony Kennedy, neither of whom have ever been noted (with sobriety, in Justice Kennedy’s case) as great liberals on the High Court bench — both expressed significant concerns regarding the State of Flordia’s death row: averaging nearly twenty-five years from conviction to execution obviously bothered both of the most senior of the jurists on the nation’s highest court.

A few other states also have very high ratios of prisoners awaiting completion of due process to actual executions: Alabama, Nevada, North Carolina, Ohio, Pennsylvania, and Tennessee. Between these six states, the already-criticized California and Florida, and the 59 Federal prisoners awaiting execution, two-thirds of all Death Row inmates nationwide are potentially affected by Judge Carney’s reasoning in the Jones case.

For those who wish to preserve the death penalty in the face of this sort of criticism, I have a predictable solution to propose. Spend more money on lawyers and judges. The reason the complex appeals process takes so long is that there isn’t enough money allocated to pay the lawyers who defend the indigent defendants, and not enough judges on the appeals courts and in particular the supreme court to hear these appeals in an expeditious manner. Californians interested in preserving capital punishment might look to Texas, which created a special court to review criminal appeals, and thus processes its death penalty cases with an alacrity some find alarming. While the system in Texas may suffer from other faults, delay is not among them.

For myself, I decided a couple of years ago that California has better things to do with its money than this. Like anyone, I read the stories of what criminals like Ernest Dewayne Jones did and my blood boils in fury. The thirst for retribution is great; the emotional appeal of lex talionis is powerful. But we must set priorities in how we allocate our collective resources, and if it’s this expensive to produce this little result, we need to direct our efforts elsewhere. Besides, life in prison without the possibility of parole doesn’t strike me as a particularly gentle sentence. So if I had my druthers, I’d leave the decision where it is.

But it’s not my decision; that job belongs to someone else. California’s attorney general, Kamala Harris, is considering whether to appeal Judge Carney’s ruling. My suspicion is that on a personal level, Harris is not a fan of the death penalty. But politically, I’m not sure she has much of a choice here — not if she wants to run for Governor in 2018. Californians voted in 2012 by a surprisingly narrow margin to keep the death penalty, so she is within margins of conformity to public opinion on the policy issue. But this isn’t quite the same thing as same-sex marriage; an obvious valid legal argument exists that the death penalty should be available until and unless the voters of the state express a voluntary desire to take it off the table (that argument being, as I noted above, that the plain text of the U.S. Constitution clearly allows the taking of life as a form of criminal punishment, after due process has been afforded).

She doesn’t have to win the case, necessarily, but she needs to make a show of saying “this is what the people want, so I’ll fight for it regardless of my own preferences.” So I’ve little doubt this will be reviewed by at least the Ninth Circuit, a court which has more Republican appointees than Democratic ones, and whose liberal reputation is not (or at least, no longer) accurate.

(Editing info: since original publication, I came to be aware that the featured photograph I originally used was copyrighted; I’ve taken it down replaced it with photographs believed to be in the public domain. I also added two links to California Department of Corrections publications regarding the data of prisoners’ causes of death and execution of prisoners, which conform to the table appended to Judge Carney’s opinion, linked passim. No substantive changes have been made since original publication. — BL)

¹ For the contemplation of those who enjoy flinging accusations about the politicization of the bench, Judge Carney was appointed to the bench by President George W. Bush in 2003 and while he enjoys a good reputation generally with the bar, he has handled few high profile Constitutional cases so has not really established much of a reputation one way or the other regarding his political leanings from the bench, at least not that I’ve heard. Before he was elevated to the Federal bench, he was a state court judge in Orange County for many years, but I am unaware of his reputation there. I’ve never practiced before him myself. I find his prose in this opinion very lawyerly and that’s a compliment: he uses the direct and plain language that experience proves more effective at persuasion than more florid sorts of rhetoric.

² California Penal Code §§ 190 and 190.1 provide a laundry list of such circumstances. If the victim is a law enforcement officer, firefighter, prosecutor, judge, juror, crime victim, witness, public official, or was selected because of her race, religion, nationality, or sexual orientation; if the murder was committed as part of a major sex crime, robbery, kidnapping, or infliction of torture or mayhem; if the murder was committed by poison, laying in wait, firing a weapon from a moving vehicle, detonation of explosives, or to advance the interests of a street gang; to avoid arrest; for financial gain; is a multiple murder or a second (or third, or more) conviction of first-degree murder; was the result of an intentionally-caused train wreck; or was “especially heinous, atrocious, or cruel, manifesting exceptional depravity,” the death penalty may be in play. According to Judge Carney, roughly seven out of eight murder convictions in California are thus “death-eligible.” The unpitiable Ernest Dewayne Jones murdered his girlfriend’s mother in a manner factually intertwined with his raping her, and thus presented “special circumstances” to the justifiably appalled jury and sentencing judge.

³ From the organization of Alta California as a province of Mexico in 1778 through 1972 when the then-extant death penalty system was found by California’s Supreme Court to be unconstitutional, a total of 708 people were executed for a variety of crimes, mostly murder. The former Mexican government favored death by firing squad; after conquest by the United States and admission to the Union as a state, hanging was California’s execution method of choice until 1937, when death by exposure to cyanide was implemented and hanging sort of went out of style. The gas chamber was found unconstitutional in 1994 (kind of), so the state then switched to a lethal injection system, which in turn was put on an effective moratorium in 2006 when a Federal judge ruled that the injections had to be administered by a qualified medical technician and the state could not find any such person willing to do the job. Interestingly, the case law I looked at suggested that hanging is still a theoretically Constitutional means of execution, although lethal injection is likely not, until and unless better information about its painfulness can be obtained, which is going to be difficult since the only people who might be able to offer firsthand knowledge have all perished as a result of the experience. Recent horrific anecdotal information suggests that lethal injection is neither pain-free nor foolproof.

⁴ Or rather, the fees that these private clients’ wives, mothers, and girlfriends can afford to pay, because that’s where the money that pays these kinds of lawyers comes from.

⁵ And by “he,” of course I really mean “his lawyers.”

Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.