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July 21, 2014

Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell

Among a large number of major sentencing developments last week, the biggest in the capital punishment arena was clearly, as discussed here and here, U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional.  The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts here and here), and I am now pleased to reprint another insightful bit of analysis sent my way over the weekend.  Specifically, Professor Richard Broughton sent me an e-mail with his reaction ot the Jones ruling and kindly permitted me to reprint this excerpt:

It looks to me as if the case should (or at least could) have been disposed of on Teague v. Lane grounds.

I was troubled that California didn't raise Teague, and was glad that Judge Carney addressed it sua sponte.  But his analysis was entirely perfunctory and merely glossed over, or simply failed to cite, a number of important Supreme Court precedents on Teague and "new rules."  (Chaidez, Summerlin, Lambrix, etc.).  I suppose one could argue that Jones was asking for a substantive rule rather than a procedural one, and could therefore avoid the Teague bar.  That strikes me as a stronger way to avoid Teague in this case. But Judge Carney didn't articulate his ruling this way.  Instead, Judge Carney simply said the rule was not "new," thus alleviating any need to categorize it as a substantive or procedural rule.  In light of the Supreme Court's (and other courts') consistent rejection of delay-as-cruel-and-unusual-punishment claims, it would seem to me that a reasonable jurist would not have felt compelled by precedent to conclude that Jones was entitled to relief.  Hence, the rule here was "new."

Judge Carney's effort to avoid the "new" rule bar by claiming that this ruling fits within the dictates of Furman and its progeny with respect to the wanton and freakish imposition of the death penalty strikes me as entirely wrong (and barred, if we are talking about a procedural rule).  Jones wasn't merely trying to have Furman apply to a new set of facts -- it was an effort to extend Eighth Amendment doctrine to situations where there are long delays, an extension that was not dictated by Furman and that courts have routinely rejected (indeed, if the rule was dictated by precedent, why has it been so often rejected?).  I would think the State could plausibly argue that, despite Furman and its progeny, the precise rule that Jones was seeking -- that delays in his execution render his sentence unconstitutional because California's death penalty system has not followed procedures that would expedite capital cases -- was not dictated by precedent when his conviction became final.  Therefore, there would have been a need to decide whether it was substantive or procedural, and if procedural, it would be barred.  There is, in fact, Ninth Circuit precedent on this very matter, applying the Teague bar to a Lackey claim.

I read Bill Otis's post at C&C on Jones as essentially requiring a Miranda-type prophylaxis.  I agree substantially with that view (though I think few other federal courts would come out and say this is what they are requiring), and I think California and others may start thinking about some legislative reforms to address the problem that Judge Carney identifies.  I think even those of us who support the death penalty acknowledge that delays are a problem, though for different reasons than the capital defense bar thinks.  But if Otis's view is accurate, doesn't that simply serve to reinforce the reality that Teague bars the rule that Judge Carney set forth?

Of course, I am troubled by many aspects of the case, not just the Teague analysis.  That's just the tip of the iceberg for me.  But I didn't see anyone else talking about Teague. Maybe there's a good reason for that; maybe my view of the Teague issue is premature and I'm ultimately wrong.  My mind is open.  But I am concerned that this view could take hold not just in more California cases on habeas review, but in other jurisdictions, as well. And I think California and the others should be prepared to assert the Teague bar (if my instincts are right).   At a minimum, I think Teague is a plausible basis for rejecting these kinds of claims, and that the case should have at least dealt more extensively with that doctrine. 

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July 21, 2014 at 11:13 AM | Permalink


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Bill's approach of a prophylaxis might be defensible on intellectual grounds but it finds no support on prudential grounds. The reason that Miranda warnings work to any degree is because they are an imposition of one independent branch (the judiciary) on another independent branch (the executive). On the other hand, Bill's prophylaxis is an imposition of one higher branch of the judiciary on a lower branch of the judiciary--only rather than a standard based approach it will be more of a rule based approach. History does not provide any evidence that such an approach will work. When you have judges whose outspoken attitude is that the Supreme Court "can't catch them all" (which is true) then rules will be as easily malleable as standards. I simply have no faith in the ability of the judiciary to police itself in any meaningful or substantial manner--not when it comes to the death penalty.

Posted by: Daniel | Jul 21, 2014 1:21:28 PM

I realize the Supreme Court refused to hear various cases, leading Breyer and Stevens to dissent, but would like clarification on when it formally showed a "consistent rejection of delay-as-cruel-and-unusual-punishment claims" or (contra to what the Court repeatedly says) is the refusal to grant cert. supposed be a substantive ruling on the merits? If they have formally substantively rejected this claim, fine. The other "courts" cited actually substantively examined the issue. They substantively rejected them. Denial of cert is probably telling, but how far does it go really?

The opinion here also has an interesting footnote:

"Because there is no underlying state court ruling on the merits of Mr. Jones’s claim of arbitrariness in California’s death penalty system, the Court does not consider the claim under AEDPA’s deferential standard of review. See 28 U.S.C. § 2254(d)."

Skilled advocates on both side of the divide here have shown me that the proper application of Teague is rather confusion, so I'm agnostic, though there is the problem of raising a claim sua sponte. It is less likely to be covered in a comprehensive fashion.

As to Bill Otis' idea, as noted in a past comment, judges aren't the only ones involved in the process here, including the delays. There might be some value to all sides if that was put in place though like AEDPA etc., there will be likely -- again because of various forces -- loopholes and other complications that will limit its value.

Posted by: Joe | Jul 21, 2014 6:22:12 PM

Judge Carney's first error is that he brushed aside the procedural default problem -- under AEDPA (as well as under earlier case law), defendant's failure to raise this issue in state court should have barred him from federal relief. At the very least, the federal court should have stayed-and-abeyed -- that is, kept the federal case on-hold while the prisoner presented his claim to state courts. But presumably Carney knew that if he did that -- that is, if he let the state courts weigh in on the constitutional issue as they're supposed to do -- then, when they ruled against this newly invented purported right, the federal court would have to defer. As a result, he saves himself from having to obey the deference mandate by excusing he prisoner from the exhaustion mandate -- thereby violating two of the fundamental limitations on habeas.

Posted by: Procedural default | Jul 21, 2014 8:12:19 PM

What about the application of the 1st exception to the Teague doctrine?

Posted by: c3cathy | Jul 27, 2014 11:46:51 AM

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