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June 10, 2017

Is adequate due process for capital cases "arguably impossible"?

The question in the title of this post is prompted by this San Francisco Chronicle editorial complaining about the prospect that the state of California might try to give effect to the voter initiative passed in the Fall, Proposition 66, intended to try to get the state's death penalty operational again.  Here are excerpts from the editorial, headlined "California should not speed up death penalty," which concludes with the phrase quoted in the title of this post:

Voters last fall narrowly approved Proposition 66, which sets a deadline for court review of capital-punishment appeals and takes other steps to restart a capital punishment machine that ground to a halt a decade ago. Fortunately, the state’s Supreme Court justices, who are considering a challenge to the initiative, have expressed appropriate doubts.

Efforts to prevent wrongful or torturous executions have slowed or stopped executions in many states as attorneys wrangle over challenges to convictions, court procedures and killing methods. The delays inevitably suggest one of two diametrically opposed political solutions: ending executions or expediting them. California voters rejected death penalty abolition and supported acceleration.

The constitutional amendment they approved sets a five-year deadline for each of two stages of death penalty appeals, which would shorten the average appeal by several years. With some 750 prisoners on Death Row and a backlog of more than 300 appeals, the justices noted, that would substantially shift court resources toward capital punishment and away from all other cases.

Prop. 66 also attempts to force more defense attorneys to take on capital cases, raising questions about how many of them would be qualified and eager to do so. Another provision would curtail review of lethal-injection procedures; California stopped executions in 2006 amid claims that its drug cocktail caused cruel and unusual punishment, and the state has yet to devise a new protocol.

The trouble with all these execution-efficiency measures is that they add up to an assault on the level of due process the death penalty requires, which is at least extraordinary and arguably impossible.  Barriers to carrying out the death penalty have their roots in serious questions about its irreversibility, arbitrariness and immorality.  Executing prisoners more quickly is exactly the wrong answer to those questions.

I understand all sorts of variations on abolitionist arguments, but I am sometimes troubled this notion that it is "arguably impossible" to provide capital cases with sufficient due process.  Recent high-profile federal and state capital cases involving Dzhokhar Tsarnaev (Boston Marathon bomber) and James Holmes (Aurora mass shooter) provide good examples of mass murderers getting plenty of process. Of course, if a jurisdiction is trying to secure many hundreds of death sentences every year, it is certainly possible (perhaps even likely) that a kind super due process would not be provided in every case.  But still, as long-time readers know well, I generally worry a lot more about lesser criminals not getting much process at all than about modern capital defendants not getting enough procedural protections.

June 10, 2017 at 01:52 PM | Permalink


You can point to high profile criminal defendants of various types getting "plenty of process" too. It doesn't mean the system as a whole, consistently, provides the level of due process that is necessary. And, more than once even high profile defendants later turn out to have successful claims of problems with the process of their trials.

And, by numbers alone, obviously, the breadth of problems of non-capital cases is going to be a concern. But, repeatedly, their is overlap of concerns there. And, killing people remains of particular concern. Sometimes, this crowds out (given our limited resources and concerns) other things too much. The same applies in other cases.

Posted by: Joe | Jun 10, 2017 2:00:05 PM

If by 'due process' someone actually means 'perfect process' then I would agree that it is impossible. But 'due process' has never meant such. I am starting to see something to SC's criminal enterprise accusation.

As for tortuous executions, even the worst lethal injection attempt has not even come close to the sorts of punishments that I believe the 8th amendment actually forbids (I do think electrocution comes a lot closer on this point).

Posted by: Soronel Haetir | Jun 10, 2017 3:15:39 PM

It's certainly possible to get adequate process and move cases faster.

In my state, the rules give the appellant ninety days to complete the record. While there are typically one or two extensions granted, in most cases -- capital, non-capital, and civil -- parties can typically get the transcripts filed within 180 days because the responsibility for preparing and organizing the transcript falls on the court reporters who are expected to get it done on time (which sometimes means spending evenings and weekends on transcripts if there judge has a lot of trials) if they want to keep their job. Similarly, while the parties have to designate what they want in the "legal file" (the pleadings part of the record in my state), the clerk's office is the one that makes the copies and certifies the accuracy of the record and all the attorney (or the attorney's secretarial staff) has to do is bates stamp the pages (or with electronic filing scan the documents in and have adobe pdf automatically bates stamp the pages) and prepare the table of contents.

For briefing, my state grants the parties 60 days (appellant)/30 days (respondent)/15 days (reply) for briefing. Again some extensions are the norm, but the one capital case that I did had briefing completed within seven months. Oral argument was within two months of the end of the briefing, and an opinion was issued approximately four months after oral argument. Of course, some states are larger and will have more capital cases occupying their state Supreme Court docket (and mandatory cases may reduce the number of discretionary cases that the state Supreme Court can hear), but that was still less than eighteen months from the notice of appeal to the disposition of the case. Similarly for a capital case that I handled in the trial court on collateral review, it took approximately twenty-one months from the notice of appeal to the mandate.

The bottom line is that there are procedural mechanisms by which a state can reassign duties related to the appeal in a way that shortens the appellate process without harming the ability of a defendant to raise meritorious claims on appeal if those claims exist.

Posted by: tmm | Jun 10, 2017 4:57:18 PM

TMM. Nice scheme to defraud the tax payer. The entire death penalty appellate racket, especially judges, should be arrested for fraud and treason. Put them in general population, and pay lifers to murder them.

Posted by: David Behar | Jun 10, 2017 5:38:41 PM

Is there anything more morally reprehensible than an appellate judge, in all out insurrection against our constitution? Maybe a serial child rapist and murderer has less morals.

Posted by: David Behar | Jun 10, 2017 5:45:13 PM

It is unclear who is asking for "perfect" process here. That is repeatedly alleged. What it actually means is that the person thinks someone is asking too much more than necessary. But, that isn't what "perfect" means.

It don't think only "tortuous executions" are barred but that was cited in the article. The argument is made that some lethal injection protocols will in effect cause the person to feel pain akin to a sort of burning at the stake. The rejoinder is repeatedly that the FACTS don't show that. But, if that is actually what happens, it very well might be "tortuous." OTOH, some might think murderers can be inflicted that sort of thing.

There also is a good argument, one that was provided in the past too, that various aspects of punishment is a sort of torture even if it is not the physical torture akin to burning at the stake or breaking on a wheel. This includes mental and physical torture arising from various types of punishment such as solitary confinement.

tmm notes there are ways to address two concerns at once. But, the layers of due process over the years have in various ways, including appeals, extended things to some degree. Back in the day, even executions occurred in under a year and major trials in a day.

Posted by: Joe | Jun 10, 2017 7:10:32 PM

Joe. All your statements are false.

Posted by: David Behar | Jun 10, 2017 7:32:51 PM

I have a very different type of concern which is why is the CA Supreme Court even hearing this case? More and more I see efforts to undermine any pretense of democracy. The CA voters passed an constitutional amendment. Since that amendment is last past the post the justices don't get to decide whether it is "constitutional" or not. It is constitutional. Whatever flaws it might otherwise have the people of that state are presumed to know their own Constitution.

So whatever substantive due process claims that would otherwise exist the people of CA nullified them by passing the amendment.

Posted by: Daniel | Jun 10, 2017 7:36:38 PM

Should have wrote "substantive or procedural due process claims"

Posted by: Daniel | Jun 10, 2017 7:37:53 PM

Looking, the editorial references an earlier article:


The arguments don't seem to be based on the federal Constitution, though not sure. But, the question -- someone aware of CA law would be useful here -- would be the breadth of the power of ballot measures here. I know this came up with the Prop 8 case.

There are limits under state law as to what is allowed there.

Posted by: Joe | Jun 10, 2017 8:18:45 PM

I support the visiting of appellate judges by pro-victim, direct action groups, to end this total bullshit.

Posted by: David Behar | Jun 10, 2017 9:51:31 PM


Yes but that would be a different concern. It would be one thing if the initiative was not a proper initiative under CA law; I do think that would be a proper thing for the court to review. I don't understand them to be judging that however. I understand them to have a practical concern about the impact the amendment would have on the judiciary as a whole which is exactly the prerogative of the people to decide. If the people want the justice system to spend all their time on DP cases that is what they want. I personally would think that an unwise choice but it isn't the judiciary place to countermand that.

Still, I am no expert on CA law and if my understanding is wrong then I apologize.

Posted by: Daniel | Jun 10, 2017 10:37:58 PM

Again false, pro-criminal, pro-lawyer employment propaganda, without balance. The lawyers here are a total disgrace, and are amoral reptiles.

Posted by: David Behar | Jun 11, 2017 1:43:56 AM

Attempts to speed up "due process" by reference to time will always fail the constitutional test. Every case is different - from sheer complexity, the inadequacy of defendants rights to disclosure, the availability of new technical procedures to test evidence, differential qualities of defense counsel, differential qualities of prosecutors, to name a few. Due process is already diminished by unnecessary limitations of right to appeal - which may be lost because of failures of defense counsel to adequately protect or enact them, or because prosecutors have suppressed vital evidence to protect a prosecution. Also from the convenient catch-all that new evidence may be insufficiently meritorious to have influenced a jury verdict, in the opinion of the judge (prosecutor). For these reasons and more, it is right that the judiciary protect defendants from popular votes based on misunderstandings and political influence.

Posted by: peter | Jun 11, 2017 6:39:54 AM

"For these reasons and more, it is right that the judiciary protect defendants from popular votes based on misunderstandings and political influence."

This is nonsense. The judiciary itself is a product of the political process. If the people want to amend the federal Constitution and delete Article III from the Constitution that is their prerogative. There isn't anything sacred about a so-called independent judiciary. The "greatest that was Greece and the glory that was Rome" manged to do just fine as world empires without anything resembling an independent judiciary. Again, whether eliminating the judiciary is wise is a different question. The idea that the judiciary protects defendants as a matter or /right/ however is malicious both in its motives and its consequences as it is simply the promoting of an oligarchical tyranny under a different guise.

Posted by: Daniel | Jun 11, 2017 10:57:33 AM

From my understanding, there are recognized limits to the proposition process, so the people do not have carte blanche power there such as if it interfered with certain basic judicial powers. The state Constitution can be changed in another way even there.

Posted by: Joe | Jun 11, 2017 11:04:41 AM

Daniel - "Any first-year law student ..... knows that the idea of judicial review—the authority of courts to rule on the constitutional validity of legislative and executive enactments, and to have those rulings respected at least to some extent by the other branches—is a bedrock in our system of constitutional democracy." from verdict.justia.com
9 March 2017

Posted by: peter | Jun 11, 2017 12:41:12 PM

Article I Section 1 gives law making power to the Congress.

Article III has a Court deciding legal controversies, not constitutionality. It does not give the Court the power to repeal laws.

Judicial review was unlawful, and void for judicial misconduct anyway.


It lay dormant for 50 years, implying lack of validity or even utility.

Its first expression was in the Dred Scott decision. For some reason, that decision is not covered in law school. The decision cancelled the Missouri Compromise, that had prevented war for 30 years. It violated a ratified international treaty about the boundary with Canada, that precluded the spread of slavery. And, it set off the Civil War that killed 850,000 Americans, almost twice the death toll as World War II. It returned in Roe v Wade, that killed 40 million innocent babies.

So judicial review does not have a good track record as national policy.

So, Peter, "bedrock of our constitutional democracy"? No.

Posted by: David Behar | Jun 11, 2017 1:22:07 PM

Here is a valid form of verdict review.

Unrelated seasoned law enforcement investigators pore over the case. They report to the original judge, familiar with the case. He rescinds or confirms his verdict and sentence based on the accuracy of the original according to experts.

Contrast to know nothing lawyers, unfamiliar with the facts, judging the skill of loophole finding by nitpicking lawyers, whose incomes depend on delaying tactics. I can safely say, if I were a lawyer, I could find an infinite number of mistakes and an infinite number of controversies to maintain my job for decades.

Posted by: David Behar | Jun 11, 2017 1:28:47 PM


You are dead right.

There is no rational nor legal reason that 5 years will reduce due process in capital cases.

The CSC problem is that 66 causes them to be more responsible with their management of these cases.

The CSC, currently, allows as long as 7 years prior to the first appellate brief being filed.

You have to be a fool not to recognize that the Court is killing the death penalty.

There is no rational nor legal reason for these cases not to be able to conclude state review within 5 years, on average.

Virginia has executed 112 out of about 150 death row inmates since 1976, within 7 years of appeals, on average, through both state and federal courts.

Posted by: Dudley Sharp | Jun 11, 2017 2:23:12 PM

Dudley - yes, its easy to find a way to execute quickly, if you are prepared to deny due process and ignore the possibility of innocence. The problem arises when you know that over 100 persons since 1963 have been exonerated from death row after periods of incarceration of 6 to 39 years! It really is the case that given the, shall we say, inefficiencies within the justice system (which include all and more of the factors mentioned in my earlier post), that innocence takes time to be revealed. I hardly think that quoting Virginia as a shining example of judicial efficiency gives anyone great confidence since, so far as I can see, it has only managed to identify ONE innocent man in all of those years. What does that tell you about the quality of Justice in the state? Talk about the Machinery Of Death!

Posted by: peter | Jun 11, 2017 3:46:29 PM

Doug opposes physical actions against judges and other tyrants.

The Star Chamber was not just torture. It was painful bureaucratic and administrative law extraction of the rent by lawyers. It ended when Charles I was beheaded, it being his agency of tyranny.


Then his spawn tried it again, and set off a civil war, the Glorious Revolution of 1688.It was bloodless, but definitely a form of self help.


As a result of these recent experiences, the Founders used the word, All, in reference to legislative powers granted to Congress. Why is that word so hard to understand by the lawyer?

This review is not mine. It comes from Yale Law grad, Phillip Hamburger, interviewed the WSJ, Sunday, June 10, page A13. No link because a subscription is required.

His award winning book is,


Posted by: David Behar | Jun 11, 2017 4:22:28 PM


Constitutional amendment is outside the entire notion of bedrock principals. So long as it complies with the floor set by the federal constitution the people of each state are free to do whatever they want to their own.

And really, while the federal judicial power is given to the federal courts I don't see anything that requires equivalent separation at the state level. States are required to have a representative government but I believe a Westminster parliamentary style government would meet that requirement.

I'm not even certain that anything requires that state governments be ones of limited powers the way the federal government is supposed to be.

Posted by: Soronel Haetir | Jun 11, 2017 4:41:57 PM

There is a sense in which @peter is right. One of the problems with judicial review is that it has gone on so long it has become a bedrock principle in fact if not in theory. Like all malicious monsters it is going to eventually consume that which birthed it. Yes, there is a problem of protecting the rights of the minority. At the same time, there is a thin line between "protecting the rights of a minority" and "a tiny guild of professionals with a particular educational degree using the rubric of democracy to impose their will on the majority under the guise of protecting the minority." Which is to say there is a thin line between protecting the rights of the minority and said minority imposing its will on the majority. I fear that is where we are at today. We are at the place where rhetorical appeals to "bedrock principles" is just a polite way of forcing people to do what one wants when one can't make the democratic case for it.

Posted by: Daniel | Jun 11, 2017 7:32:27 PM

How can there be "equal protection under law" when the risk of a death penalty depends foremost on which county the body drops in, and who has won the most recent prosecutor's election?

Posted by: Jay Hurst | Jun 11, 2017 8:57:37 PM

Jay. We need mandatory death penalty guidelines which will kill them all equally, and not privilege them, when they land in a Blue, pro-criminal, rent seeking county.

Next we need sentencing robots running algorithms written by the legislature.

Posted by: David Behar | Jun 11, 2017 11:42:33 PM

Jay Hurst, that is a concern, but how far do we take it?

The risk of prosecution and what sort of punishment in general relies on such things. The right to have a local jury factors in as well -- the Constitution sets up a bias toward local control there, including local perspectives on punishment.

I'm willing to say death is different here, especially once the differences in results are particularly blatant, but equal protection applies to all crimes on some level.

Posted by: Joe | Jun 12, 2017 9:52:45 AM

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