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July 18, 2014

Furman and randomness (not just delay) at heart of California capital ruling

As discussed here and here, U.S. District Judge Cormac Carney earlier this week declared all of California's death penalty system unconstitutional in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here).  Because much of the opinion documents how "California’s death penalty system [has become] 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," much criticism of the opinion questions how a very long delay between a death sentence and an execution could alone render a sentence unconstitutional.  As noted before, Kent Scheidegger here at Crime & Consequesnces has stressed that few Justices have taken "seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it."  And now Orin Kerr here at The Volokh Conspiracy explains why he "found the [Jones] opinion unusually weak" given all the "obvious puzzles raised by delay-based Eighth Amendment claims."

Though decades of delay between a death sentence and possible execution is part of the equation of the Judge Carney's ruling in Jones v. Chappell, I see the concept of randonmess to be more fundamental and more fundamentally important to Judge Carney's constitutional conclusion.  Judge Carney cites repeatedly the various opinions in the Supreme Court's 1972 landmark ruling in Furman v. Georgia which found an Eighth Amendment violation based ina state's sentencing process making it essentially random (or "arbitrary") who ultimately gets sentenced to die among a large pool of eligible capital defendants.  I read Judge Carney's opinion as extending Furman by concluding that the Eighth Amendment is also violated if and when a state's appeals process makes it essentially random (or "arbitrary") who ultimately gets executed among among a large pool of condemned defendants sentenced to die

Because Furman remains good law (and obviously has nothing to do with execution delay), I think there is a little more "juice" to the ruling in Jones v. Chappell than suggested by those whose criticisms are focused only on execution delay aspects of the ruling.  Indeed, in order to keep the focus on Furman and randomness, consider a variation on a hypothetical statute present to students when discussing Furman.  Consider, dear readers, if you think a state would be constitutionally allowed to pass a capital law along these lines:

Because of the huge costs associated with adequate appellate review of death sentences, state appeals courts should randomly select (via a fair lottery process) only 1 out of every 50 death sentences to be subject to full and fair appellate review each year.  All death sentences shall be indefinitely stayed (and no execution date imposed) unless and until a death sentence has been is randomly selected for, and properly subject to, full and fair appellate review.

Of course, California has not formally passed such a law.  But Judge Carney's ruling (rightly) finds that California functionally operates its capital punishment system this way AND then (questionably) concludes such a capital punishment system violates the Eighth Amendment based on Furman

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July 18, 2014 at 08:58 AM | Permalink


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Are they randomly selected for appellate review, though? If that's the case (if a recent case may be selected before one on the back burner, for example) I agree. But if it's just that someone dies before their appellate review is finished, I can't see that as constitutionally significant.

Posted by: Erik M | Jul 18, 2014 10:55:16 AM

"obviously has nothing to do with execution delay"

The arbitrary ("so-called" if one likes) nature of the application of the death penalty that was a concern of the majority justices there (Furman) includes execution delay, especially (as discussed by the judge) if the result is that an arbitrary number of people are execution, have years more on death row or for whatever reason are never executed at all (e.g., die of natural causes after decades). Justice White even viewed things from a pro-penal standpoint (if you execute so few, your penal interests are not apparent).

So, even if this specific issue was not addressed, it is but an aspect of the wider picture. It is far from obvious to me Furman had "nothing to do" with execution delay. As to Prof. Kerr, he's the one, sorry for a tad bit of snark, who thought the Jones GPS ruling would logically go the other way if we followed precedent and refused to admit he was mistaken ("not my fault they didn't follow the law!"). But anyways.

Posted by: Joe | Jul 18, 2014 10:57:42 AM


Yes, delay and randomness are intertwined in a practical sense. It is probably true that delay alone is not enough to raise constitutional concerns, though people do debate it. It is also probably true that randomness alone is not enough because there is a sense in which the imposition by a judge or jury of the death sentence is random to begin with in the sense that a different judge or jury might not have imposed that same sentence. The question raised by Carney is does the intertwining of these two issues create a constitutional problem where each one individually might not. And it seems to me that his opinion is the first opinion to /squarely/ face that issue because neither Furman nor Lackey squarely address it--one focusing on delay and the other focusing on randomness.

One way to think about this entire question is to think of the Sword of Damocles. Is the imposition of a perpetual state-imposed Sword of Damocles unconstitutional? Maybe it is. After all, in the fable Damocles begs to be relieved of the sword and he wasn't even in prison but had every luxury at his disposable. Certainly I am with Doug that the argument isn't weak.

My own problem with the ruling steams not from its intellectual force but as an expression of power. The judiciary gets to make a hash of the DP and then claim that because it made a hash of the DP it's now unconstitutional. That's the epitome of self-dealing.

Posted by: Daniel | Jul 18, 2014 2:07:11 PM

So win this proposed lottery and your prize is a better chance at execution than the losers?

Posted by: Wayne-O | Jul 18, 2014 2:23:47 PM

I continue to believe any "hash" has many parents and focus on the judiciary alone is incomplete and at times misleading. Breyer and Stevens, e.g., in various dissenting from denial type opinions that delays weren't just the fault of judges, but other factors too.

Posted by: Joe | Jul 18, 2014 3:54:19 PM


This is where we disagree, I suppose. Does anyone realistically think that if Bill Otis were governor of CA that the mess would be any better? The fact is that while political administrations come and go--some of which are more pro-death penalty than others--the mess that has been created over the course of decades lies at the feet of one branch only--the judiciary. As an act of power, it is the judiciary passing judgement. It is not the executive that keeps allowing endless appeals of every single nitty gritty aspect of the death penalty process. In any event, regardless of the precise degree to which one appropriations blame, the judiciary has unclean hands. So any pretense that the judiciary is a neutral arbiter or even an independent one flies out the window and dances among the daises in fantasy land.

Posted by: Daniel | Jul 18, 2014 4:46:31 PM

Where do judges come from? They are chosen by people we elect. The people brought in New Deal judges as well as Nixon/Reagan judges, who had very different approaches on various issues. If people didn't want these judges, they could vote in different people, or in CA particularly, there are ways to remove them.

The death penalty rate is different in different states. Other states have executed significantly more people than CA. Why? In part, because of the people of CA, including their elected officials, do not have as much of a desire for executions, resulting in various delays without much pressure to do anything.

The appeals come partially because the system in various ways is problematic. Judges don't cause this. Second, the appeals come because the people are very wary about the death penalty. A majority supports it but very warily. They are willing to -- unlike they did in the more distant past as much -- deal with long appeals processes to try to safeguard the process. Time and time again some new problem or problem case comes up, including some innocent only freed from death row after a long time, and it only encourages the process.

The courts aren't some isolated institution. They are interlocked with the other branches and their actions are influenced and limited by them as well as the people at large. In that sense, they are not completely independent. That doesn't get you where you want to go though. Likewise, I don't have a "pretense" the courts were EVER a totally "neutral" arbiter btw -- they are human beings. But, again, such bias is a result of various things, including outside forces.

Posted by: Joe | Jul 19, 2014 10:42:26 AM

["Judges don't cause this" should be interpreted to me that the system of executing people would be flawed regardless, but as actors in the system, surely, there are not free of blame. They are however just one cog in the machine.]

Posted by: Joe | Jul 19, 2014 10:44:17 AM


The response that the system is complex and complicated isn't a persuasive argument. Life is complicated and and complex, yet despite that multitude of factors that influence and individual's life we still manage to find people guilty of crimes. Taken to it's logical extreme no case could ever be prosecuted because the chain of causation is just horribly confusing and too attenuated to find anyone to blame. I'm going to quote the pop singer Lorde, "I’m kind of tired of being told to throw my hands up in the air – so there."

Judge Knopf had a good post about this a few months ago. Life-time tenure was supposed to give judges the freedom to raise above the heat of the moment and apply the law in a neutral way regardless of the passion of the times. Instead, what it has done in many cases is allow judges with an ideological axe to grind a lifetime remit. From the perspective of power, courts are a totally isolated institutions--they are the only one that have lifetime tenure. That was exactly the purpose of lifetime tenure--to isolate them. It hasn't worked out well. Power without responsibility is just taxation without representation in a different guise--why anyone ever thought it was a good idea to give that to a bunch of lawyers in black robes is beyond me.

Posted by: Daniel | Jul 19, 2014 12:47:32 PM

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