Death Penalty Oral Argument: Procedural Debate Belies Anger at State's Dysfunction

This morning, the Ninth Circuit (Judges Graber, Rawlinson and Watford) heard oral argument in Jones v. Davis (formerly Jones v. Chappell). As you may recall, the original case was decided by District Court Judge Cormac Carney, who found the death penalty in California unconstitutional because of the severe delays in its application. The decision was appealed by the Attorney General, and nothing much happened since then in terms of addressing the delays on death row.

What did happen more litigation relying on Jones--notably, Andrews v. Davis before the Ninth Circuit and People v. Seumanu before the California Supreme Court.

At today's hearing, the Government representative argued that Jones was barred from benefitting from the delay in his case for two reasons:

1. It is a claim purporting to create a new rule, not brought up before, and as such is barred by Teague v. Lane.

A little bit of background: New substantive rules apply retroactively. For example, if a certain behavior ceases to be a criminal offense, whoever is still doing time for that offense will probably be let out immediately. But for new procedural rules, appellants can benefit from them only if these rules come into being while their case is still "alive", that is, still under direct review. In the diagram to the left, the rule change can benefit people in situations (1) and (2), but not (3). Note that, if the new rule came into being when (2) was still under direct appeal, but now (2) is arguing for it in a habeas proceeding, (2) still gets to benefit from the rule. (3), however, does not--his case became final before the rule change.

What about announcing a new rule on Habeas? According to Teague v. Lane (1989), the dilemma is as follows: the defendant who is asking for the new rule is, essentially, (3) from the previous diagram. That is, he would not be able to benefit from the new rule if it were announced today in someone else's case. Which also means that all the people who are similarly situated to this defendant--whose cases are final and on habeas--will not benefit from the new rule. Since the court doesn't want to just announce the rule and not enforce it, or to enforce it only in the particular case and not in those similarly situated (inequality), it reached the bizarre conclusion that it will simply not announce new rules on Habeas--unless these rules fundamentally change criminal justice, either in terms of legalizing previously prohibited behavior or being a "watershed rule of criminal procedure."

Jones' representative, Michael Laurence from the Habeas Corpus Resource Center, argued that the issue at stake here is substantive, not procedural. That is, the application of the death penalty is not merely a change in procedure, but rather a fundamental issue of applying the death penalty, as it was regarded in Furman v. Georgia (1972), Atkins v. VA (2001), and Schriro v. Summerlin (2003), the latter specifying that "rules that regulate the manner of punishment" are considered substantive, rather than procedural. Even if it is a procedural rule, it is essentially a reframing of the problem of arbitrariness, which led to the death penalty abolition in Furman, and therefore not a "new one" but merely the application of an old one.

In response, the government's representative argued that the arbitrariness claim, in this context, is a "new rule", and moreover, a procedural one. There hasn't been precedent directly on point claiming that arbitrariness can manifest itself in delay, and since this is a new question, it cannot result in a new rule on Habeas under Teague.

There was some back and forth about whether the court's decision in Andrews, which rejected a Jones-based claim, should be used to interpret whether the rule is new or old. 

2. Even if it's a claim relying on an old rule, Jones has not exhausted his argument in state court (in fact, never brought this up in state court) and is therefore barred from raising it in federal court under the Habeas provisions in section 2254. As 2254(d)(1) says,

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) 

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]

This was not the case here, claims the government; Jones didn't even go to state court, and cannot therefore challenge the sentence at the federal court.

Jones' representative argues that Jones benefits from an exception to the exhaustion clause, which appears in 2254(b)(2)(b)(ii):

(b)

(1)An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—

(A)

the applicant has exhausted the remedies available in the courts of the State; or

(B)

(i)

there is an absence of available State corrective process; or

(ii)

circumstances exist that render such process ineffective to protect the rights of the applicant.

This may seem very technical, but there's actually a lot of anger beneath the technicalities. As Jones argues through Laurence, the California Supreme Court would not have provided a cure to the delay, but rather delayed things even further. In 1997, the Ninth Circuit found that 140 people on death row were unrepresented, and released them from the timely submission obligations under AEDPA. Now, there are 358 unrepresented people. The wait for an attorney can be 16 (!!!) years, and after that, litigation can last 8-10 years (!!!)--all this time, obviously, spent by the applicant on death row. Amazingly, the only office limited in its number of lawyerly hires, the Habeas Corpus Resource Center, can only hire 34 (!!!) lawyers, which is a woefully inadequate number of people to handle 758 (!!!) cases. Before and after Jones, the California Supreme Court did nothing to remedy this situation, argued Laurence, and therefore there was no point in trying to "exhaust" the claim in state court. That would be, literally, exhausting.

In response, the government representative said that the prospective delays in state resolution of such issues is speculative.

There was also a bit of back and forth on the merits, with the government resisting the assertion that death penalty in California is "arbitrary" but rather that cases are carefully examined.

I'm hoping that, no matter the result in the Ninth Circuit, this case will go to the Supreme Court, where the dysfunctional application of capital punishment in the state might find a receptive ear in Justice Kennedy and in Justice Breyer, who explicitly said, in Glossip v. Gross, that he would welcome an opportunity to address the constitutionality of the death penalty on the merits.

Today! Live Argument in Jones v. Davis

Starting at 10am, Jones v. Davis, the case in which the death penalty in California was declared unconstitutional because of the delays, streams live here:



If you're at Hastings, join me at my office at 10am. If not, tune in to the blog later today for fresh commentary.

Upcoming Event! Juveniles in Adult Institutions

We're happy to invite you to a film screening and discussion of juveniles doing time in adult prisons.

RSVP via this link.

Jones v. Chappell Oral Arguments Coming Up at the Ninth Circuit

Remember Jones v. Chappell?

At the time we were very excited: A federal District Court judge, Judge Cormac Carney of Orange County, declared the death penalty in California unconstitutional because of the decades-long delay in its administration. In fact, we were so excited that we organized a public petition to the Attorney General, asking her not to appeal the decision. We got some press and support from more than 2,000 signees (thank you!) and there were even a few surreal plot twists.  Much to our disappointment, the Attorney General decided to appeal the decision.

On August 31, the Ninth Circuit will hear oral arguments in the case (now called Jones v. Davis--change of wardens). CCC will be there to report. If you want to read up a bit in the meantime, here's the amicus brief submitted by Death Penalty Focus.

BREAKING NEWS: Connecticut Supreme Court Finds Death Penalty Unconstitutional

Today, the Connecticut Supreme Court ruled the death penalty unconstitutional, in a broad retroactive decision that removed all 11 inmates from death row and into general population. The Hartford Courant reports:

The majority decision, written by Justice Richard N. Palmer, found a host of flaws in the death penalty law, which banned "prospective" death sentences, those imposed after the effective date of the law. But the majority wrote that it chose to analyze capital punishment and impose abolition from a broad perspective.

After analysis of the law and "in light of the governing constitutional principles and Connecticut's unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state's death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose," Justice Richard Palmer wrote for the majority.

""For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment."

Congratulations, Connecticut! Come on, California Supreme Court!

Good News on Health Care for Transgender Inmates

Today a settlement was reached in Quine v. Brown, a case involving housing and healthcare for transgender inmates. The Transgender Law Center reports:

Today, the California Department of Corrections and Rehabilitation reached a groundbreaking settlement with Shiloh Quine, a transgender woman held in a men’s prison, to move her to a women’s facility and provide medical care, including gender-affirming surgery, determined necessary by several medical and mental health professionals. In the settlement, the state also agreed to change its policies so that transgender prisoners can access clothing and commissary items consistent with their gender identity. The state also affirmed that it is revising its policies regarding transgender inmates’ access to medically necessary treatment for gender dysphoria, including surgery.

“This historic settlement is a tremendous victory, not just for Shiloh and transgender people in prison, but for all transgender people who have ever been denied medical care or basic recognition of our humanity just because of who we are,” said Kris Hayashi, Executive Director of Transgender Law Center, which represented Shiloh along with pro bono counsel from the law firm of Morgan, Lewis & Bockius LLP. “After years of unnecessary suffering, Shiloh will finally get the care she desperately needs – and transgender people nationwide will hear a state government affirm that our identities and medical needs are as valid as anyone else’s.”

BREAKING NEWS: 50,000 New Voters in 2016!

Just in time for the fiftieth anniversary of the Voting Rights Act, a legal team comprised of various rehabilitation and reentry organizations has triumphed in returning the right to vote to 50,000 men and women who are under mandatory supervision!

A little bit of background: The California Constitution disenfranchises felons who are "imprisoned or on parole". In League of Women Voters of California v. McPherson, the First District Court of Appeal ruled that these categories did not include people who were in jail as a consequence of violating felony probation. After Realignment, thousands of non-serious, non-violent, non-sexual felons were sentenced to jail terms. A prior litigation effort on their behalf was unsuccessful (though we raised some important questions that were left unanswered.)

The current litigation effort was more modest, but also perhaps more realistic, seeking to restore the right to vote not to all realigned felons, but only to those under mandatory supervision. Folks under supervision serve time on the outside, under conditions strongly resembling probation. The prospective voters' advocates were successful on the first round. The former Secretary of State appealed, and just as the parties were ready to go forward, the current Secretary of State, Alex Padilla, withdrew his appeal, with the outcome that voting is restored. And here's what Secretary Padilla had to say--here at CCC we wholeheartedly concur:

“Passage of the Voting Rights Act was not easily won,” Secretary Padilla said. “People marched. People struggled. People died. They bravely sacrificed for each other – for friends, family, for our country so that each of us could be empowered with the opportunity to participate meaningfully in our democracy.” 

“Civic engagement and participation in the election process can be an important factor helping former offenders reintegrate into civil society.  If we are serious about slowing the revolving door at our jails and prisons, and serious about reducing recidivism, we need to engage—not shun—former-offenders. Voting is a key part of that engagement; it is part of a process of becoming vested and having a stake in the community,” Padilla added. 

“The United States Supreme Court eloquently proclaimed, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” 

“Our California Supreme Court has made similar pronouncements: “No construction of an election law should be indulged that would disenfranchise any voter if the law is reasonably susceptible of any other meaning.”   

“Today’s announcement is in line with these statements, the arc of California history, and the spirit of the Voting Rights Act,” Padilla said. 

See you at the ballot, fellow Californians!

College Education Grants for Inmates Restored

Pell grants for inmates pursuing college education, which were terminated during the Clinton administration, have been renewed! The Wall Street Journal reports:

The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.

Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens.

Between the mid-1990s and 2013, the U.S. prison population doubled to about 1.6 million inmates, many of them repeat offenders, Justice Department figures show. Members of both parties—including President Barack Obama, a Democrat, and Republican Sen. Rand Paul of Kentucky—have called for a broad examination of criminal justice, such as rewriting sentencing guidelines.

A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn’t.

Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.

Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren’t yet clear, such as which institutions and what types of convicts would be allowed to participate.

I really like this administration's focus on rehabilitation and return-on-investment strategies. I hope Obama will manage to accomplish as much as possible in this arena before the election in 2016.