|Today's Daily Journal story about our petition. Please click to enlarge.|
As the decision notes, since the reinstatement of the death penalty in California in 1978, only 13 people have been executed. Meanwhile, 95 inmates have died of natural causes or suicide, 39 were granted relief from their sentence, and the remaining 748 are languishing on Death Row, some of them for decades. More than 40% of the condemned population has been on death row for more than 19 years, and nearly all of them are still engaged in expensive, lengthy litigation—direct and collateral review proceedings—funded by the state. The arbitrariness in the administration of executions, according to Judge Carney, echoes the historical concerns in Furman v. Georgia (1972), and undermines any deterrence arguments, to the extent that these are still credible.
But while Judge Carney believes that these delays have made the promise of capital punishment an empty one to California citizens, to jurors, to victims and their loved ones, he does not believe that these defects can be remedied simply by streamlining the death penalty and executing inmates faster. He convincingly argues that much of the delay in litigation is the state’s fault, but points out that all efforts to reform post-conviction remedies have failed, and that cutting them would increase the grave risk of mistakes and wrongful executions. While the order pertains only to Mr. Jones, generalizing Judge Carney’s conclusions to all those affected by a system that “serves no penological service” is unavoidable.
The unavoidable question is, what next? The ball is currently in Governor Brown and Attorney General Harris’ court. They must decide whether the state will appeal the decision to the Ninth Circuit. A day after Judge Carney’s decision, I started a petition on Change.Org, asking Attorney General Harris not to appeal the decision, which, as I write these words, bears 2,078 signatures. The Governor and the Attorney General are not known to be fans of capital punishment, and I believe that a refusal on their part to stand behind the death penalty can communicate an important symbolic message that has the potential to place us on the much-awaited path to abolition. It would signal that our state government is fiscally responsible, and unwilling to continue wasting $100 million annually (according to the Legislative Analyst’s Office calculations) on the incarceration of a few people in a dilapidated facility, paying for expensive conditions and litigation, with or without an execution at the end. It would signal an acknowledgment that consistency and fairness are important tenets of our penal policy. It would signal that the botched execution of Joseph Rudolph Wood in Arizona—and the botched executions of many others, estimated as 3% of executions every year—indicate that there is no way to divorce the infliction of death from the infliction of suffering, even behind a sanitized, medicalized window-dressing. It would signal that, like Justice Blackmun in 1980s, we have tired from “tinkering with the machinery of death” and have finally acknowledged its profound dysfunction. And it would signal that these new considerations join the old abolitionist arguments, based on ethics, racial equality, and innocence concerns—in ushering in an era of abolition.
But beyond the symbolic message, there are the practical consequences associated with the State’s decision whether to appeal. Should the Attorney General appeal the decision, the Ninth Circuit might affirm it, in which case it will apply to the entire State of California, rendering the death penalty effectively abolished. However, the current Supreme Court makeup does not seem promising to the abolitionist cause, and an appeal of the Ninth Circuit decision will, in all likelihood, reverse Judge Carney’s decision. A possible appeal of such a decision to the Supreme Court will, likely, reverse the decision. The best scenario, therefore, for abolition would be a final, affirming decision on the Circuit level, without a subsequent appeal—but that scenario depends on a favorable Ninth Circuit panel and the Attorney General’s restraint in appealing that decision.
If, on the other hand, the Attorney General decides not to appeal the decision, we will find ourselves in an interesting situation. As many California residents recall, the Governor and Attorney General did not appeal Judge Vaughn Walker’s District Court decision, according to which Proposition 8, which amended the California constitution to forbid same-sex marriage, was unconstitutional. Supporters of the initiative, who appealed the decision in their stead, were found by the Supreme Court to lack standing, and Judge Walker was left as the final decision on Proposition 8’s constitutionality. Lest our short memory confound us, California’s death penalty is also the product of a voter initiative: Proposition 7, the Death Penalty Act, of 1978. Moreover, some of the original supporters of Proposition 7 have now joined the abolitionist cause, so even if they had standing, they would probably lack the motivation to fight the decision.
There is, however, an important legal difference: Judge Walker’s order was an injuctive relief against the state. Judge Carney’s decision merely vacates Mr. Jones’ death sentence. In the absence of an appeal to the Ninth Circuit, further legal and political steps would be required to move from a particular case to a de-facto abolition of the death penalty in California.
The easiest situation would be that of inmates under sentence of death who have a pending federal habeas claim in the Central District, who could argue their case should be heard by Judge Carney, as a “related case”. The decision would be up to Judge Carney’s discretion, though it seems clear from the tenor of his decision that he meant for it to have an impact beyond Jones’ case alone. Also, the decision raises the question whether other Central District judges can ignore it in similar cases if Judge Carney does not, for some reason, find that they are “related”.
Inmates outside the jurisdiction of the Central District would face more of an uphill battle. Judge Carney’s decision, while of persuasive value, is not binding in other district, nor could they benefit from an “issue preclusion” claim, as they were not original parties to the action. This is where the good will of the Attorney General’s office and the other District Courts would come into play; surely we wouldn’t want to see the death penalty effectively ended in one California district and have other inmates on death row. Another possible scenario would be that, in order to correct the grave injustice of having some inmates benefit from a general decision while others don’t, the Governor could commute the sentences of all death row inmates to life without parole, and with the support of the California Attorney General, we could enter another period of moratorium.
The possible legal outcomes of Jones, therefore, run the gamut from one inmate’s victory to a de-facto moratorium in California. The eventual impact of the decision depends on the sound discretion and good will of many actors in the legal and political arena in the state. Last, but not least, of these actors is the public. In 1978, 71% of California voters supported the death penalty amendments. After many years of delays, mistakes, discrimination, litigation over chemicals, and expenses, support for the death penalty plummeted to 53% in 2012. Whether the courts and administration will bravely turn the tables before the public tide is completely reversed remains to be seen, but a comparative perspective shows that the road toward abolition—toward progress—is a one-way street. Let’s get this done.