More than 900 people have been sentenced to die in California since 1978, when the state’s current death penalty system was adopted, but only 13 of these individuals have actually been executed. In many cases, inmates sentenced decades ago remain on death row, awaiting a slight chance that the state may some day decide to kill them. According to one scholarly article, “[t]ypically, the lapse of time between sentence and execution is twenty-five years, twice the national average.”
This system, where “a sentence of death in California” is actually “a sentence of life imprisonment with the remote possibility of death” violates the Eighth Amendment’s ban on cruel and unusual punishment, according to George W. Bush-appointed federal Judge Cormac Carney.
The death penalty system in California is, to put it mildly, a dysfunctional mess. Although men and women accused of capital crimes are legally entitled to legal representation at multiple stages of appeal, California has not budgeted nearly enough money to guarantee that a sufficiently large pool of competent lawyers are available to argue capital cases. The result is that a person convicted of capital murder will wait three to five years, on average, before counsel is appointed to represent them on appeal. They will then wait years more for a new lawyer to be appointed at a later stage in their case. And even when they do have appointed counsel, those lawyers may need months or years to familiarize themselves with the case and prepare a brief — and the courts may require even more years to decide each phase of the appeals. Altogether, by the time the California courts reach a final determination that an inmate may be executed “he will likely have spent a combined 17 years or more litigating his direct appeal and petition for state habeas review before the California Supreme Court.”
This backlog is also getting worse. As Judge Carney explains, over a five year period, “the State has issued an average of 22.8 death judgments per year compared with only 9.4 annual appointments of habeas counsel over the same period.” And even if inmates exhaust their state-level appeals, there is still likely to be many years of litigation ahead in federal court.
In striking down the state’s death penalty system, Carney relies on a line of Supreme Court precedents establishing that states cannot rely on an arbitrary process in order to determine which inmates will be executed. If a death row inmate becomes one of the few who are actually executed in California,
their selection for execution will not depend on whether their crime was one of passion or of premeditation, on whether they killed one person or ten, or on any proxy for the relative penological value that will be achieved by executing that inmate over any other. Nor will it even depend on the perhaps neutral criterion of executing inmates in the order in which they arrived on Death Row. Rather, it will depend upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process.
Allowing someone to be killed by such a system, Carney concludes, “would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death.”
As a practical matter, Judge Carney’s opinion is unlikely to have much immediate practical effect, even if it is upheld on appeal. California has not executed anyone since 2006, in large part due to lawsuits challenging the state’s lethal injection protocol.