California Death Penalty Ruled Unconstitutional

MAUREEN CAVANAUGH: Our top story on Midday Edition, life in prison, with the remote possibility of death. That is how the federal judge characterized California's death penalty as he overturned the sentence of a man awaiting execution since 1995. The judge's ruling only applies in the one case, but the language used by Judge Cormac Carney implies a more sweeping condemnation of California's death penalty. Carney writes that the California death penalty law is unconstitutional, because random and infrequent executions violate the eighth amendment prohibition on cruel and unusual punishment. Joining me to discuss a ruling that could have major consequences for capital punishment in California and across the country are my guests, Professor Laurence Benner, Managing Director of the Criminal Justice Programs at the California Western School of Law. Laurence, welcome to the program. And Legal Analyst and Attorney Dan Eaton is here, it is good to see you. The petitioner in this case is a convicted murderer named Ernest Jones. Tell us what he was asking the court to do. DAN EATON: He was asking the court to invalidate his death sentence, on the grounds that it was unconstitutional in the way that the state administered it. He said the delays involved, and the relatively arbitrary way I've been put on death row means that this death sentence cannot be carried out, it is unconstitutional, and it's a violation of the eighth amendment, the ban on cruel and unusual punishment. It's important to understand he was not challenging his guilt, no, I was guilty, but that is not available because under these circumstances it would be cruel and unusual punishment, because of the systemic problems under the California death penalty system. MAUREEN CAVANAUGH: He was convicted for a 1992 murder, is that right? DAN EATON: He was, the murder and rape of his girlfriend's mother, who was a fifty-year-old accountant, under very awful circumstances, actually her husband of thirty years found her gagged and bound body as a matter of fact. That was the killing for which he was sentenced to death. MAUREEN CAVANAUGH: Federal Judge Carney says the sentence is not valid because of the delays and infrequency of executions in California. Explain that to us, because I don't think that we have heard that as a reason to invalidate a death sentence. DAN EATON: The reason you have not heard it is because the US supreme court, delay is not enough to make it unconstitutional under the eighth amendment. What Judge Carney said, under these circumstances, we are not talking about individual problems of delay, were not talking about delay caused by the inmate himself, because of repeated delays and appeals that had no basis. He said there is something wrong with the California system. That is why these delays are different. There is no real deterrent or retributive benefit to carrying out the death penalty under these circumstances. MAUREEN CAVANAUGH: Professor Benner, what does this ruling actually do? It does not overturn California's death penalty, does it? LAURENCE BENNER: That is an interesting question, because it does delay, I think as a practical matter this case will go on appeal to the Ninth Circuit Court of Appeals. But given the reasoning of the court, the court found that this was a systemic delay, and there were really two reasons for the judge's decision. The death penalty no longer served the rationale of deterrence, and retribution, because the average time to execution after a sentence is twenty-five years. That was coupled with the fact that only thirteen people have actually been executed since 1972, and none since 2006. The implementation, this is not about putting them on death row, this about the implementation of the execution. The implementation of the death penalty is so completely dysfunctional that it violates the eighth amendment of prohibition against excessive, cruel, and unusual punishment. MAUREEN CAVANAUGH: Why does it take so long for these executions take place in California? LAURENCE BENNER: This was the basis for the judges decision, that it is an inordinate and unpredictable delay that occurs due the fault of the state, not do to the defendant deliberately trying to delay his execution. Because you could take Mister Jones's case as typical, it took four years before he even had an attorney appointed to handle his death penalty appeal, the direct appeal to the California Supreme Court. There was a four-year delay before he even had an attorney appointed. Once the attorney was appointed the case, the case took another four years to be heard, that is about the average that the California Supreme Court takes, they can only handle 20 to 25 cases a year. We have currently 748 inmates on death row, we have had as many as 900. It takes 8 to 12 years before you even get through with the direct appeal. After that, the direct appeal only handles issues that are appearing as based on the record at trial. There are a host of other issues, such as claims involving ineffective assistance of counsel, or the police failure to turn over evidence that is favorable to the defendant, or jury misconduct. These issues often come to light after the trial. There is no record, you have to have a state postconviction petition, and that is a required under federal habeas corpus, you must exhaust all of your state remedies first. They have to file a state postconviction petition in the California Supreme Court. Of course, that is now taking a long time. The judge found in this case there are currently seventy-six death row inmates, whose direct appeals have been completed, and they have been waiting over fifteen years for an appointment of an attorney to handle the state postconviction review process. MAUREEN CAVANAUGH: That they attribute their has I think we're getting a really good feel for the fact that these wheels turn extraordinarily slowly when it comes to actually implementing the death sentence in the state of California and other states as well. Dan, obviously one remedy to fix this problem would be to speed up executions. Is that a likely solution? DAN EATON: It's not clear. Pete Wilson, our former governor, tried to get a ballot initiative that would have sped up the state process, and he was not able to get sufficient signatures. They're going to try again. One interesting thing is that judge Carney said I am not necessarily encouraging a tremendous speeding up of the process, because as you pointed out, those have challenged in either state or federal court death sentences, they have been remarkably successful in getting the death sentence vacated. In fact, over half have challenged it had been successful. He is saying yes, it has to be sped up, the state should not allow these systemic delays, just taking that long to appoint counsel at various stages of the appeal. But he also said, there are ways to speed this up regardless, under this system right now it is unacceptable, it does not serve the purpose of deterrence, and it does not serve retribution, which is expressing society's moral outrage in proportion to the arm done. MAUREEN CAVANAUGH: Some critics' reaction to this ruling is that death penalty opponents do all they can do to slow down the process of execution. And then they file complaints that executions are taking too long ñ DAN EATON: ñ I would take exception to that. They are just following procedures that are in place to protect the innocent. We have had over 144 exonerations nationwide by Innocence Projects. This is outside of the normal procedure we're talking about here. Innocence Projects have had to come in after the fact and investigate and find out these people were actually innocent, 144 death row inmates. This is something that is a problem. This is a bigger problem, the elephant in the ground here is the defense system in this country, and in California too is woefully and inadequately funded. LAURENCE BENNER: Defense for the poor? DAN EATON: Yes. All of us are indigent when it comes to a capital case, we do not have the money in the bank to afford an attorney. It affects all of us. The system we have is underfunded, everybody knows this. We also are over using the death penalty. We have twenty some odd special circumstances, and many varieties within each of those to add even more flavors. We have so many people who are not actually even killers get the death penalty, we have expanded the death penalty in California, while at the same time we have shrunk the resources available. Some public defender offices have been cut by a third in budget in the last few years. MAUREEN CAVANAUGH: Partially for the reasons Professor Benner is outlining here, there seems to be a growing movement among the public at least here in California to take another look at the death penalty, and perhaps say it is just not worth it. We had a vote on this issue, a very close vote, which is unusual, because the types of votes we have had here in California historically over the last generation or so have been very pro-harsh punishment for people convicted of serious crimes. DAN EATON: That is true, and there is an issue, not to be too glib, about whether the game is worth the candle at some point. A very interesting facts, the daughter of the woman who was killed at the time of the sentencing of her killer, Mister Jones, called the sentence a hollow act according to the Los Angeles time, because executions are rarely carried out. That was very prescient of her at the time, she realized that the time it was unlikely. There is a question about whether the deterrent function is served there, some people believe very strongly that it is. This judge, said, however, under California's particular system, "the death penalty is about as deterrent of a capital crime as a possibility of a lightning strike to going outside in the rain." So he really had a problem with the idea of whether it really deters capital crime. LAURENCE BENNER: If I could just add an interesting statistic, the death penalty information center has a lot of facts on the death penalty, and they looked this up by region. The region we call the South, which does not include Texas and Oklahoma, by the way, has the highest execution rate in the country, 80% of all executions are from that area. And yet, they have the highest murder rate in the country. By contrast, the Northeast, which includes metropolitan cities like New York City, has the lowest execution rate, many of those states do not have the death penalty, and yet those cities have the lowest murder rates. DAN EATON: Of course, that is a policy question, about whether or not the death penalty in fact is worthwhile. A lot of people feel very strongly about that. LAURENCE BENNER: It should have the burden of proving deterrence. MAUREEN CAVANAUGH: Let me ask you regarding this particular opinion, both of you have been quoting extensively from what the judge wrote in this. I read that this opinion is broad and seems to give the plaintiffs a lot of ammunition on appeal, why is that? DAN EATON: They're going to take this opinion, no matter where they are, in California or other states. Pennsylvania has a very long death row as well, and they will say here at this is a violation of the amendment, you need to vacate my death sentence too. It is not binding, you have to understand, unless this goes up on appeal and is affirmed by the Ninth Circuit, there will be even further challenges to the Supreme Court, this is not binding on other courts, but it is persuasive authority. I expect you'll see a lot of inmates on death row amend their federal habeas corpus petitions to include this argument and definitely site extensively the judge's sweeping twenty-nine page opinion. MAUREEN CAVANAUGH: Laurence, how does a ruling like this affect people who are so involved in the death penalty debates in the country? LAURENCE BENNER: Have well, it is a very well written, and thoughtfully constructed opinion. It makes legal propositions which are solid in precedent, that you cannot have arbitrary. We have not talked about that aspect of it, one of them is simply if you wait twenty-five years, how can you claim this deters when you only have executed thirteen people since 1972? It just does not serve that purpose, even if it does deter, which 88% of all criminologists in the country said does not anyway. Even if you believe that argument, it does not deter. And retribution twenty-five years later, is it really worth it? The marginal utility at this point is so minimal in going towards those goals. Those goals, the Supreme Court has said, are the rationale for the death penalty. If we can't implement the death penalty in a way that does that, because we are not willing to put the resources into the criminal justice system. MAUREEN CAVANAUGH: Let me end this with a question about the US Supreme Court. Just to be clear, this is the opinion written by one federal judge and it only affects one case in California. People have a strong feeling that this will be appealed to the Ninth Circuit. So, that is the next step in this process. If, however, this is go all of the way to the US Supreme Court, haven't recent rulings from the court tended to narrow the scope of the death penalty? DAN EATON: They have, but not in this way. You know you cannot do it in less there is a killing, you cannot do it for juveniles, you cannot do it for people who have severe mental problems. You have that trend. The question is, whether they are willing to use systemic delay as a basis for overturning the particular administration of a particular states death penalty regime as unconstitutional. That particular eighth amendment question is not one that the court has specifically confronted. It is not clear how it will. I don't think you can rely on the earlier cases that we just mentioned as a basis of saying if Carney's opinion goes up, the majority of the Supreme Court will confirm it. LAURENCE BENNER: It is probably an open question as to what the Supreme Court will do. Although, you look at the last case, the Kennedy case, which dealt with a type of crime and that you could convict for the death penalty, they said they will use their own independent judgment on whether or not the death penalty is in itself cruel and unusual punishment. Certainly, I think it is in this case, I think the governor what to declare a moratorium until this legal issue is resolved. MAUREEN CAVANAUGH: Well, that is a bit moot, we have not had an execution here since 2006. DAN EATON: We need to have a de facto moratorium in a way. Certainly to have an execution now in the face of this opinion, I think that would be very unlikely. MAUREEN CAVANAUGH: Doesn't this opinion actually put a delay if there is an appeal of this, a delay on all other executions until the Ninth Circuit looks at it? LAURENCE BENNER: Absolutely, I think there will be a de facto moratorium at any further executions. DAN EATON: Understand it is a practical matter, in the aftermath of the 2006 ruling out of the Northern District of California, it said our protocol was unconstitutional. The state has made efforts to change the protocol, and as a result of some defects in the procedures they have used, they have not been able to change the protocol in a way that works. As a practical matter, we are in fact in a holding pattern right now. The question of how far this goes and whether it ultimately eliminates the death penalty in California is still very much an open question today. MAUREEN CAVANAUGH: I want to thank you both very much.