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November 13, 2009

"There have been fewer executions in California than deaths by lightning strike "

The title of this post is the first sentence of this new note in the California Law Review, which is titled "Capital Crime: How California’s Administration of the Death Penalty Violates the Eighth Amendment."  Here is more of the piece's abstract:

But what does the death penalty have to do with lightning?  The comparison is drawn from the analysis in the landmark capital punishment case, Furman v. Georgia, which held capital punishment at the time to be unconstitutional.  That analysis, now mostly relegated to sound bite status, suggests that California's capital punishment system is unconstitutional.  In Furman, Justice Stewart compared being sentenced to death with getting struck by lightning, in the sense that sentencing was both arbitrary and capricious.  The Furman court noted that this was not acceptable because it meant that capital punishment could not serve the legitimizing penal purposes of deterrence and retribution.

Now once inmates have been sentenced to death in California, executions are so infrequent that comparison with lightning is generous. Because the execution rate in California is so low, sentencing does not correspond to the actual imposition of the death penalty.  Only 13 inmates have been executed since 1978.  There are currently 677 on death row.  This paper aims to show that as a result of a low execution rate and inmate death row stays averaging around 17 years and growing, capital punishment in California is no longer more retributive or deterrent than the punishment of life without parole.  As such, it is excessive and violates the Eighth Amendment.

November 13, 2009 at 09:57 AM | Permalink


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Presumably the student's constitutional concerns could also be solved by an order requiring California to pick up the pace of its executions and requiring the California AG to issue guidelines that would lead prosecutors to seek the death penalty in more cases.

The Reinhardt-Henderson-Karlton opinions on California's prison system might be a good template for that sort of thing.

Posted by: anonymous | Nov 13, 2009 10:54:11 AM

Similarly, as Justice Scalia suggested in this week's oral arguments in the LWOP-for-juvenile-offender cases: the fact that a sentence is imposed relatively infrequently or rarely might suggest admirable restraint rather than unconstitutional cruelty or unusualness. And as the previous commenter suggests, it seems doubtful that the note-writer would be happier if California started seeking the death penalty more often and executing more convicted murderers.

There are currently very few prisoners serving death sentences or life-without-parole sentences for terrorism or acts of treason. Would that make terrorism or treason prosecutions, or death or life-without-parole sentences for terrorists or traitors unconstitutional?

Posted by: anonymous | Nov 13, 2009 4:03:11 PM

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