Federal Judge Rules the Death Penalty Unconstitutional in California

At the time of writing, it's been just three days since Judge Cormac J. Carney's unexpected ruling, and the news is still trickling out.

Human Rights activists and Christian bloggers are leaping up and down in victorious prose, while stunned journalists and right wing writers are frothing at the mouth in their indignant compositions.

In truth, it's too soon for any such reactions. I too would like to bounce around in triumphant euphoria, but the ruling is unlikely to stand for long. Most commentators predict that the Ninth Circuit will over-turn California's moratorium at the earliest opportunity, and if, by some fluke, it makes it out of state, then the US Supreme Court will reinstate the slaughter.

Not that it's actually much of one at the moment. California has over 900 people languishing on Death Row, but has only managed to kill thirteen of them since 1978.

That - for District Judge Carney - was the point. While not against the death penalty per se, he saw no justice in the fact that those thus sentenced had to wait decades for all of the legal wranglings to take their course. At any moment, during those twenty or thirty years of maximum security confinement, their names could be called. Their lives would be over. Their family and friends would have to sit by, knowing that their loved one was being taken out and killed, and there was nothing they could do about it.

For the likes of Judge Carney, it was just, but didn't feel like justice. The failures of California's judicial system turned it into something other than what their original trial had concluded should be done. Though he never once said the words, psychological torture was the impetus behind his ruling that California's death penalty constituted a 'cruel and unusual punishment'.

And by the laws of the land, that was enough to get the sentence struck from the books - at least until another judge over-rules him.

Judge Carney was hearing the case of Ernest Dewayne Jones, who was sentenced to death on April 7th 1995.

For nearly twenty years, Mr Jones (pictured) had sat on Death Row in San Quentin Jail, uncertain when - or if - he would be killed. The delays started as soon as he was there. It took four years for him to be assigned a lawyer, so that his appeal procedures could even begin.

A further four years passed before the appellate court confirmed the soundness of his original conviction. But by then, Mr Jones was already filing a habeas corpus petition.

Unfortunately, he'd lost the right to consult with this appeals lawyer, hence the need to be assigned another. Five years passed before the State of California could spare one.

In 2009, the California Supreme Court finally passed its verdict. Fourteen years after being sentenced to death, Mr Jones was told that he would indeed be executed. However, no-one quite knew how.

The state's only sanctioned method of killing - lethal injection - was ruled unconstitutional in February 2006. District Judge Jeremy D. Fogel ruled that the three-drug injection, as currently administered, posed too great a risk of suffering, thus rendering it a 'cruel and unusual punishment'.

The State of California duly appealed, and the Ninth Circuit judges did provide some wriggle room in their amendment to the ruling.  The court would allow lethal injections to continue only if a qualified medical practitioner performed the execution.

But the American Medical Association had long since prohibited all members from actively killing anyone, even if the condemned was legally ear-marked for death. Any doctor, nurse or medic delivering a lethal injection would be instantly struck off the books.

Mr Jones was pretty much told that he was going to die, but when and how was under question. If the appeals regarding the lethal injection finally succeeded, then it would be that. Otherwise, it would be some other way, as yet undecided, because the committees had been unable to come up with a viable alternative.

For another five years, he sat on Death Row understanding that his Fate could catch up with him at any time. The appeals spotlight upon lethal injection brought with it highly publicized exposes on why it had been deemed 'cruel and unusual' as a punishment. Any one of those horror stories could happen to him. Or else, he might be used as a guinea pig in some untried, experimental method.

These dark, stark imaginings were what assaulted every person on California's Death Row, every minute of their lives. 40% of whom had been there, like Mr Jones, for two decades, and a fraction longer still.

It was this psychological ordeal which was deemed unacceptable by Judge Cormac J. Carney. When Mr Jones stood before him in the dock, on July 14th 2014, the district judge transmuted his sentence to life imprisonment instead. Then preceded to rule ALL sentencing to death as unconstitutional.

And nobody saw that one coming.

The Judge went on to say, '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.'

He then provided several pages of background information about the state of the death penalty in California, including reams of legal footnotes in support of the grim facts thus recounted. It all made damning reading.

Judge Carney estimated that it takes an average of 17.2 years for due legal process to take its course, from first death sentence to actual execution.  This was a gap which was growing wider each year with no evidence of the trend reversing. For most entering Death Row right now, the delays are likely to take more than twenty-five years.

It was far more common for inmates of Death Row to die of other means than via the State. Between 1978 and 1997, out of 511 individuals thus condemned, 79 had otherwise expired. Since 1997, 389 people had been sentenced to death, and fifteen of them died without meeting their legal executioner. That's a grand total of 94 dead through natural causes, suicide or (in my opinion, a rather ominous) other.

Only thirteen had been put to death by the State of California since 1978.

The bulk of Judge Carney's ruling unsurprisingly is about the deficiencies in the legal process causing these delays. He analyzed each step along the way, producing damning indictments against the courts, counsels and governmental offices involved. Yet concluded that under-staffing and an unwieldy backlog was the main culprit here.

In order to reduce that backlog, 'the state would have to conduct more than one execution a week for the next 14 years'.  Yet of the 748 people still sitting on the state's Death Row, only seventeen have completed the final stages of the process, exhausting all avenues of appeal, and are therefore in a position to be killed.

The deciding factor wasn't anything to do with their crimes, but the speed through which they may navigate their appeals. Which Judge Carney considered arbitrary.

'For Mr Jones to be executed in such a system, where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections - that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death.'

He understood that such measures were instituted to stop people being randomly selected for death, but felt that this amounted to much the same thing.  Or, as he put it,

'Arbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises.'

Judge Carney went on to question the deterrent nature of the death penalty, as enacted by California's 'dysfunctional' system. After all, deterrence was the major point for imposing a death sentence, but - in his opinion - that relied upon it being carried out in a timely manner.  The other two reasons being retribution and closure for the communities (especially the families) affected. But decades worth of delays made a mockery of that too.

He dismissed as incorrect two 'assumptions' made by the general public and court officials alike. That is that the delays are the fault of the petitioners themselves, as they insisted on appealing, and that ensuring the accuracy of evidence in order to 'safeguard the inmate's constitutional rights' took time.

Mr Jones's circumstances were in fact typical of California. He appealed (who wouldn't), but didn't receive legal counsel for years, and couldn't go to trial without one.  Judge Carney concluded with a scathing retort to any who thought that it took 'more than two decades' to ensure constitutional rights. He might have added that, if there was any doubt regarding the accuracy of the evidence, why would anyone be sentenced to death in the first place?

In concluding his ruling that California's death penalty system renders the 'cruel and usual punishment' now unconstitutional, Judge Carney wrote that a courtroom's condemnation to death 'carries with it an implicit promise from the State that it will actually be carried out'.

It was a promise made to the State's citizens regarding justice; jurors, in recompense for all they'd seen and deliberated over; victims and loved ones, to enact moral and emotional closure; and to the inmates of Death Row, as confirmation that their 'heinous' crimes meant 'they have forfeited their right to life'.

'But for too long now, the promise has been an empty one... 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.'

(Historic words emboldened by myself.)

The United States legal system is layered in such a way that, if somebody doesn't get the result that they wished to see, they can keep going up through the ranks until they do.

Or it hits the Supreme Court of the United States for a final judicial review.

As Judge Cormac J. Carney made his ruling in a District courtroom, the next step will be for the State of California to appeal to the United States Court of Appeals for the Ninth Circuit.

This is ordinarily a random selection of three judges from amongst its pool of such. But a case important enough to change something fundamental to state law - as this is - will necessitate a higher level - the en banc review. It will still be the Ninth Circuit, but with eleven judges presiding instead.

It's largely down to which judges are selected as to whether Judge Carney's ruling will be upheld or dismissed. However, most of the twenty-nine possible Ninth Circuit judges do openly support the death penalty, hence the general feeling it won't get past them.

On the other hand, it currently has a higher percentage of Democratic appointees, rather than Republican. And the Democrats are politically more inclined to favor a reduction in applications of the death penalty, if not an all out moratorium.

Whatever it decides will be subject to controversy. Unlike other Circuits, the large size of the Ninth means that only eleven of the twenty-nine sit in judgement during an en banc review. So it's always open to criticism that its rulings don't reflect the views of all.

On the off-chance that the Ninth Circuit does support Judge Carney's ruling, then it's practically inevitable that the State of California will appeal to the US Supreme Court.

An analysis of the judgment calls made by the highest court in the land, regarding the death penalty, shows a distinct pattern. Challenges to due process tend to favor a tightening of the law (unless it involves foreigners), while those aimed at removing the actuality of capital punishment rarely succeed.

In short, if Judge Carney's ruling that the death penalty is unconstitutional makes it to the US Supreme Court, his judges are most likely to return a verdict that he's very much mistaken. Then the killing can technically resume in the Golden State.

However, if contrary to all expectation, the US Supreme Court concur that a 'cruel and unusual punishment' is being enacted in California, then shock-waves will ripple across the whole country.

There's a long-standing tradition that whatever happens in California eventually occurs in all fifty states (hence the vicious campaigns wrought there, in an unsuccessful attempt to stop gay marriage, which saw funds and people shipped in from throughout the country). A Californian death penalty ban would therefore send a strong signal that the USA is preparing to embrace human rights.

It would be the start of a movement towards aligning with most of the rest of the world.