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July 17, 2014
Lots of notable discussion of yesterday's notable decision striking down California's death penalty
As reported in this prior post, yesterday in a significant ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), U.S. District Judge Cormac Carney declared all of California's death penalty system unconstitutional. Not surprisingly, this important ruling has already generated considerable traditional media attention, and How Appealing collects some of the major stories here and here.
The heart of the remarkable ruling in Jones v. Chappell turns on (1) the (not disputable) fact that "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," and (2) the (very disputable) conclusion that allowing any one murderer to "executed in such a system, where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death." I have lots of thoughts about both fact (1) and conclusion (2) that I hope to find time to share in future posts (or future amicus briefs), but for now I figured I would link to some of the early analysis of the opinion I have so far seen elsewhere in the blogosphere:
From Dan Markel here at PrawfBlawg, "What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision"
From Bill Otis here at Crime & Consequesnces, "A Miranda-type Prophylaxis for the Death Penalty"
From Ruthann Robson here at Constitutional Law Prof Blog, "California Federal Judge Declares Death Penalty Violates Eighth Amendment"
From Kent Scheidegger here at Crime & Consequesnces, "The Lackey Claim" Again
July 17, 2014 at 05:42 PM | Permalink
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While I think the opinion is wrong in its conclusion I don't find either Kent's analysis or Bill's solution persuasive. The problem with Bill's solution is that the judiciary can't be trusted to police itself, that much is obvious. So any judicially imposed solution is bound to fail. Nor do I think that what Judge Carney wrote is strictly a repetition of Lackey. As I understand it, the real problem with the death penalty in CA according to the judge is not the delay but they fact that the delay produces random results. It's the arbitrary and capricious nature of the the death penalty system that violates the constitutions--it is the /mental uncertainty/ drawn out over time which is cruel and unusual. This is important because Lackey takes a presumptively constitutional death penalty scheme and says that such a system does not fail constitutional muster because of a delay. Carney opinion says the whole barrel is rotten so all the apples have to be tossed, good or bad.
Posted by: Daniel | Jul 17, 2014 9:18:29 PM
Let me understand.
Defense lawyers and appellate judges have hobbled the death penalty process in California for the past 30 years. Now the rarity and unpredictability of the rate of execution is considered cruel and unusual.
Isn't the remedy to make death penalty mandatory, and to remove the delay and unpredictability to make it humane and usual?
There is no legal recourse for the victims nor for their families. Only violence against the lawyer profession remains. However, I am not ready to call for it, yet. A violent right wing revolution will not be led by careful empirical social scientists. The left wing French Revolution was a mistake. There is also a strong likelihood the right wing anti-big government American Revolution was also a big mistake. India had a peaceful revolution to expel the British government. That was a monumental mistake, resulting in the deaths of millions of innocent people. The track record of revolutions has not been good. On the other hand, this ridiculous, and insulting decision, shows, there is no peaceful remedy to the pestilence of the lawyer profession on the horizon. This decision says, we the lawyers running this country, made $billions in the California death penalty appellate business, bringing it to a slow grind with the collusion of the lawyers on the bench. Now, the slowness violates the Cruel and Unusual Clause. This decision is a prank, a joke on the families of murder victims.
Posted by: Supremacy Claus | Jul 17, 2014 10:37:17 PM