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October 11, 2017

Judge Kozinski, in dissent, laments the "cruel and expensive hoax" of the death penalty in California

A divided Ninth Circuit panel issued an extended opinion yesterday in Kirkpatrick v. Chappell, No. 14-99001 (9th Cir. Oct. 10, 2017) (available here), that keeps alive a habeas claim that of a California murderer trying to stay alive decades after being sentenced to death for a double murder committed in 1983. The bulk of the ruling, with a majority ruling by Judge Reinhardt and a dissent by Judge Kozinski, concerns the intricacies of appellate and habeas procedure. But the last four pages of Judge Kozinski's dissent are what make the opinion blog-worthy, and here is a taste from its start and end (without the copious cites):

But none of this matters because California doesn’t have a death penalty.  Sure, there’s a death row in California — the biggest in the Western Hemisphere. But there have been only thirteen executions since 1976, the most recent over ten years ago.  Death row inmates in California are far more likely to die from natural causes or suicide than execution....

Meanwhile, the people of California labor under the delusion that they live in a death penalty state.  They may want capital punishment to save innocent lives by deterring murders.  But executions must actually be carried out if they’re to have any deterrent effect.  Maybe death penalty supporters believe in just retribution; that goal, too, is frustrated if there’s no active execution chamber.  Or perhaps the point is closure for victims’ families, but these are surely false hopes.  Kirkpatrick murdered Rose Falconio’s sixteen-year-old son more than thirty years ago, and her finality is nowhere near.  If the death penalty is to serve whatever purpose its proponents envision, it must actually be carried out. A phantom death penalty is a cruel and expensive hoax.

Which is why it doesn’t matter what we hold today.  One way or the other, Kirkpatrick will go on to live a long life “driv[ing] everybody else crazy,” while copious tax dollars are spent litigating his claims.  And my colleagues and I will continue to waste countless hours disputing obscure points of law that have no relevance to the heinous crimes for which Kirkpatrick and his 746 housemates continue to evade their lawful punishment.  It’s as if we’re all performers in a Gilbert and Sullivan operetta.  We make exaggerated gestures and generate much fanfare. But in the end it amounts to nothing.

October 11, 2017 at 11:03 AM | Permalink


The judge is correct.. Which is why over time I have moved from a reluctant death penalty supporter to a reluctant death penalty opponent. For the most part, Americans are just not serious about the DP. So why bother?

Posted by: Daniel | Oct 11, 2017 11:10:35 AM

Kozinski is possibly the smartest appellate court judge in the country. Volokh got training as a clerk at the Supreme Court before and to qualify to be a clerk for this guy.

Yet, this dumb shit does not understand what is happening. Moron. The system is finely tuned to maintain hundreds of appellate bar lawyer jobs, for the lawyers on both sides and for the lawyers in the middle.

Posted by: David Behar | Oct 11, 2017 11:18:32 AM

"the people of California labor under the delusion that they live in a death penalty state"

Are they deluded? Or, do they want to sentence people to die and in theory execute a Charles Manson, but quite openly push actually executing people to the back-burner, including by electing people they know will do so? Problem is that this "message death penalty" very well might be too arbitrary in practice to be constitutional.

Anyway, as K. says (again, he would have made a good compromise choice for justice) the death penalty is accepted as constitutional by settled law. But, so is the great care taken to get it right that results in these delays. Clearly, there are reasons to oppose both. But, then mere appeals to precedent won't settle things there.

Posted by: Joe | Oct 11, 2017 12:11:38 PM

Joe. Death penalty is settled law. Great care to get it right. Good reason to oppose both.

You out weaseled yourself. You weaseled on your weasel statements, hedging on the hedging.

Posted by: David Behar | Oct 11, 2017 12:19:23 PM

Oh ☠️death☠️ , where is thy sting ?

Oh 🙏grave🙏 , where is thy victory ?


Posted by: Handel - The Docile , Kind Soul | Oct 11, 2017 1:44:17 PM

Prof. Berman, you omitted the following paragraph from the dissent:

"There are plausible reasons to oppose the death penalty. Some think it barbaric. It’s also exceptionally expensive: California taxpayers have lavished approximately $5 billion on their capital punishment system. Jazmine Ulloa, Will ending the death penalty save California more money than speeding up executions?, L.A. Times, Nov. 1, 2016,
http://www.latimes.com/politics/la-pol-ca-death-penaltycosts- snap-20161101-story.html. Then, there’s the risk that we might be putting innocent people to death. See Glossip v. Gross, 135 S. Ct. 2726, 2756–59 (2015) (Breyer, J., dissenting). Or that race may be a factor in how the death penalty is imposed. And there’s the impulse to follow other Western democracies that have abandoned this hoary punishment. See Carol S. Steiker & Jordan M. Steiker, Courting Death 22 (2016). "

Posted by: anon21 | Oct 11, 2017 2:49:29 PM

I hate to admit it, but Kozinski is spot on. Just last week Fernando Belmontes died on California's death row of natural causes. Possibly some of you will remember that Judge Reinhardt tried on 3 different occasions to overturn his death sentence only to have SCOTUS reverse it every time.

Posted by: DaveP | Oct 11, 2017 2:50:25 PM

Behar, you write: "Yet, this dumb shit does not understand what is happening. Moron."

The only dumb shit and moron is you.

Posted by: anon17 | Oct 11, 2017 2:51:21 PM

Anon17. Are you a licensed lawyer?

Posted by: David Behar | Oct 11, 2017 3:21:52 PM

Anon21. The guy is stupider than I thought. He is aware of the heist, $5 billion. It is staring at him, and he cannot see it. Have you tried to take candy from a baby? Not easy. Now, try taking $5 billion from hundreds of lawyers.

This the smartest appellate judge in the country. Dumb shit.

Posner even mentioned rent seeking in his God damned book, and stayed oblivious the heist the profession is pulling on our nation.

Posted by: David Behar | Oct 11, 2017 3:52:05 PM

Behar, take your filthy mouth and wash it out with soap. you four-year-old jerk.

Posted by: anon10 | Oct 11, 2017 4:53:51 PM

Anon10. You are getting upset by the facts, and scapegoating me. Your profession needs to be stopped. The best guy you have turns out to be a totally dumb shit. He is stupider than a Life Skills student, who would understand more.

Posted by: David Behar | Oct 11, 2017 5:07:15 PM

Kozinski's rambling analysis seems superficial and trivial. If he were my high school civics student, I would return this paper, and ask for more depth, to avoid a C-.

Posted by: David Behar | Oct 11, 2017 5:10:52 PM

Unfortunately, Kozinski was not aware of
Belmontes death when the Kirkpatrick case was released. I am sure he would have added a few paragraphs on Belmontes which would fit perfect with his dissent. He could have taken a swipe at Reinhardt also.

Posted by: DaveP | Oct 11, 2017 5:14:43 PM

The rate of innocence reflects an exception bias. Stop all driving until there are no accidents.

All racial bias is toward the under valuation of black murder victims, and requires a quadrupling of the death penalty for black murderers. There are almost no white murderers of black murder victims.

Kozinski comes across dumb as a box of rocks.

Posted by: David Behar | Oct 11, 2017 5:17:34 PM

The problem of representative democracy. In a referendum, there is only one issue so you know that the majority agrees with position A over position B. It is less clear that there is a consensus on what policy the majority prefers based on which candidates get elected. For each candidate, there is a laundry list of policy positions, but most voters make their decisions on a very small number of those positions -- with different voters choosing based on different issues. Many voters are shocked to learn that the nice state representative who ran on getting X and Y done is also the same person who is voting against doing anything about A and B. Very few voters find a candidate who is "perfect" on every issue; so they have to accept bad on issues A and B to get good on issues X and Y.

I am not sure that California voters want a death penalty on paper only. In fact, their recent vote indicates that they want to get rid of the obstacles to carrying out the death penalty. Putting aside the actual merits of any of the folks who have run in California, the voters have picked the candidates that are best on a wide-range of issues. While some voters may have recognized the effect of their votes in these races on the death penalty, I doubt that there was a conscious decision by the majority to undermine the death penalty. Instead, my expectation is that the winning candidates won primarily on other issues with their views on the death penalty playing an insignificant role in the elections.

Posted by: tmm | Oct 11, 2017 5:30:48 PM

I think the idea the voters wanted the death penalty on paper, which means some minimum usage that at some point might get too small warranting some re-balance (the proposition), is as likely as the voters being "deluded" in the sense noted. The voters finding the issue "insignificant" doesn't hurt the case. In other states, voters want the best people to win too. But, there, "best" to them includes more concern for the death penalty actually occurring. I doubt many voters are "shocked" Gov. Brown etc. are not gung ho about the death penalty, especially when elected officials themselves give tepid support at best.

The recent propositions don't change the theory very much. A proposition to end the death penalty lost by a thin margin (a few percentage points) and the winning proposition won by about a percentage point. It still allows things in state courts to continue for years more & the state supreme court made the deadlines even less fixed in stone. And, that doesn't even address (since voters cannot) federal court action. It looks like a mild desire for the death penalty on paper to have a bit more bite.

Posted by: Joe | Oct 11, 2017 6:26:48 PM

In Italy we drive and we have not the Death penalty. The same in the civilized world.

Posted by: Claudio Giusti | Oct 12, 2017 6:09:32 AM

Hi, Claudio. Act badly in jail in Italy, you are found dead by suicide or by murder. Italy kills hundreds if not thousands of thugs this way. Good job. I am now a big fan of the Italian Death Penalty. Serial killer, Jeffrey Dahmer, died this way, and slowly, and painfully.

Posted by: David Behar | Oct 12, 2017 1:41:59 PM

Dear DB, you are completely out of order. Last year we had 400 murders and America 16.000. Your police kills 1.500 persons every year. In our prisons we have 50 suicide and one homicide per year. Please DB, stop IDIOCY, stop STUPIDITY, and stop SILLINESS.

Posted by: Claudio Giusti | Oct 12, 2017 2:12:20 PM

Hi, Claudio. I found the problem. You are basing your opinion on the wrong numbers. The pro-criminal EU declared Italian prisons a crime against humanity. I like them. They kill 1000 vicious criminals a year, over half by suicide. These criminals are executed at no additional government expense. Good job.

Posted by: David Behar | Oct 12, 2017 2:34:38 PM

Vaffanculo DB, vaffanculo, stronzo.

Posted by: Claudio Giusti | Oct 12, 2017 3:52:10 PM

Buffone raccapricciante.

I found your picture, finally.


Posted by: David Behar | Oct 12, 2017 5:55:52 PM

stupid, disgusting liar ...

Posted by: Claudio Giusti | Oct 13, 2017 5:30:57 AM

Hi,Claudio. Please, do not scapegoat me in place of the European Court for Human Rights.


Posted by: David Behar | Oct 14, 2017 11:35:31 PM

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