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July 16, 2014

Federal district judge declares California's death penalty unconstitutional under Eighth Amendment

An notable new opinion by a (Republican-appointed) federal district judge in California is sure to be the talk of the death penalty community for the forseeable future and is also sure to be the basis for a intriguing coming appeal to the Ninth Circuit (and perhaps the Supreme Court). The opinion in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available for download below), is authored by a GWB-appointee Cormac Carney, and it is described by the judge as an "ORDER DECLARING CALIFORNIA’S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER’S DEATH SENTENCE." Here is how the 29-page opinion start and ends:

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California.  Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 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. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment....

When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.

But for too long now, the promise has been an empty one. Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional. Accordingly, the Court hereby VACATES Mr. Jones’s death sentence.

Full opinion:  Download Jones Cal DP opinion

July 16, 2014 at 03:35 PM | Permalink


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Is there any word from AG Harris whether the State will ask for a stay, or appeal? She is not a big supporter of the death penalty, so I'm very curious to see what the reaction from her office will be.

[NOTE to DAB: I'm an attorney for the ACLU of Virginia. As a second-year law student, I clerked for the California Appellate Project, which assists private attorneys with state habeas petitions in death penalty cases.]

Posted by: Rob Poggenklass | Jul 16, 2014 4:13:52 PM

Great question, Rob, and I think it is possible (but would be quite controversial) that Gov Brown and AG Harris decide they should NOT appeal this constitutional ruling.

Posted by: Doug B. | Jul 16, 2014 5:46:27 PM

While I admit there are many reasons for California's inept death penalty, one of the main causes are Judge Carney's colleagues on the 9th Circuit. It takes them about 3-4 times longer to dispose of a death case than other circuits. In many cases it takes a year just to decide whether to hear it en banc. They also constantly withdraw opinions and reissue them many months later. The fact of the matter is that the Circuit should be split because they "handle" way too many cases.

Posted by: DaveP | Jul 16, 2014 6:07:19 PM

I will bet Stephen Reinhardt will have his hand up in the air eager to be on the panel in this case.

Posted by: DaveP | Jul 16, 2014 6:10:19 PM

This is a judicial activism pro dp infomercial. Or would be if it were a sincere opinion from the left.

Posted by: George | Jul 16, 2014 7:59:46 PM


FWIW, the judge in this case exhaustively reviewed why it takes 25 years to hear all of the appeals in a California death penalty case, and the predominant delays were in underfunding of court appointed counsel delaying assignments of appellate lawyers for people sentenced to death, and in the bottleneck created by the California Supreme Court's failure to take up fully briefed cases promptly.

Posted by: ohwilleke | Jul 16, 2014 8:42:14 PM


I don't disagree with you. Like I said, there are many reasons why California cannot carry out the death penalty. It has never been effectively managed, even back in the 80's. The state was unfortunately stuck with the California Supreme Court (Bird court) and the 9th Circuit in addition to other factors.

Posted by: DaveP | Jul 16, 2014 8:56:55 PM

Dave, Rose Bird was removed in 1986. 38 years should be enough to remove the terrible residues from her reign of terror. She remains a convenient scapegoat, but you cannot really be giving her a substantial portion of the blame for the state of the California death penalty in 2014, when the majority of 2014 Californians were not even alive when she was removed.

Posted by: Paul | Jul 16, 2014 10:04:05 PM

I have some thoughts veering from ambivalence to hostility on the case over at Prawfs:

I welcome reactions. I was initially more ambivalent about the decision, but the more I thought about it and discussed it with a fellow crimprof (who supported the outcome initially) this evening, the more convinced I became that the issue was wrongly decided as an Eighth Amendment issue.

Posted by: Dan Markel | Jul 16, 2014 11:26:43 PM

I was trying to emphasize how dysfunctional it has been even back in the 80's. Even cases such as Albert Brown's that SCOTUS reversed the Bird Court on in 1981 has still not been carried out.

Hopefully, California will appeal and this will be reversed. But, does it really matter with all the other problems the State has? Does Governor Brown and AG Harris even care? Probably not.

Posted by: DaveP | Jul 17, 2014 12:10:21 AM

Regardless of the philosophical/legal theory issues doesn't it bug anyone that what this case holds is that one court is holding a legal scheme unconstitutional because of foot dragging by other parts of the judiciary? Not only do the metaoptics of that look horrible but it strikes me that lurking in the background is a separation of powers issue. The executive has a constitutional legal scheme and due to the intransigence/hyperviligance/lack of comity of the judicial branch this causes the scheme to become unconstitutional. Say what?!

The judiciary gets to make a hash of the death penalty and then claim the death penalty is unconstitutional because they made a hash of it. That's breathtaking in its hubris and arrogance.

Posted by: Daniel | Jul 17, 2014 1:18:25 AM

One of the arguments in Furman was that the Death Penalty was cruel and unusual like getting struck by lightning was cruel and unusual. In that sense, an arbitrary time in carrying it out is analogous. If the "effective" death penalty number is completely random, then it could be seen as just as arbitrary as before. Although, if the "who" is predictable and it's only a very long delay, I don't see that as arbitrary or random at all. Merely dying by natural causes rather than by state action ahead of time really shouldn't change the equation.

Although, I'll admit that I'm also bothered by the incentives this seems to create. Kill faster if you want the death penalty to be preserved. I'm sure states like Florida will look to this as evidence on why they should reduce judicial review.

Posted by: Erik M | Jul 17, 2014 8:01:08 AM

I'm in the defense community.

The note about the judge being a Republican (Bush 43) appointee doesn't cut it. Yes, he's a Republican appointee, but one from California-Central. At the time there was a 51-48-1 split in favor of the Republicans, with the Independent (Jeffords) caucusing with the Democrats. There were also two Democratic senators: Boxer and Feinstein.

With such a narrow partisan split, the judicial filibuster in effect, and two Democratic senators from California, President Bush had to bargain to some extent with said senators to nominate someone for that seat. That's how a Gray Davis appointee to Calif. Superior (Orange County) Court wound up being nominated to the Federal bench. Noting, of course, that Gray Davis had pressures from the reverse standpoint in terms of installing someone in Orange County.

All this is consistent with Carney's profile on "Robing Room". A conservative but believes in fairness. Carney's action here demonstrates that "Party of the Appointing President" is too blunt an instrument by which to identify latent ideology and political views on the part of judicial nominees.

Posted by: Roland | Jul 17, 2014 9:07:05 AM

Guess who has commented via Dan Markel's post?!

The opinion reminds me somewhat of Justice White's Furman dissent. In the long run, the delay is a result of various factors and I share another person's opposition in citing long past state judges, putting aside such judges did not come from the ether, but in some fashion individuals the state of CA voted for.

Posted by: Joe | Jul 17, 2014 9:08:55 AM

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