Some links & quick thoughts on today’s California death penalty ruling

Federal district judge Cormac Carney ruled today that California’s death penalty, as carried out (or more accurately, as not carried out), violates the Eighth Amendment to the U.S. Constitution. You can read Judge Carney’s ruling here. (Update: Here’s a thorough overview from the SF Chronicle‘s excellent legal reporter, Bob Egelko.)

Some links, context, and quick thoughts:

  • This challenge to the death penalty follows the contemporary pattern: it’s not about whether capital punishment is categorically unconstitutional but about whether a particular state’s particular system of implementing capital punishment is, for particular reasons, unconstitutional. This format is what capital defense attorneys have to work with nowadays because no one thinks that American courts will seriously entertain categorical constitutional arguments against capital punishment anymore, and certainly not the Supreme Court (for reasons that it would take another post to discuss fully, but which have partly to do with the rise of originalism). For historical context on the rise and fall of direct constitutional challenges to capital punishment itself, you could read my recent review essay in Public Books, or even better, read Evan Mandery’s absorbing history, A Wild Justice.
  • Judge Carney’s ruling is likely not out of step with California voters’ preferences statewide (although within California, support for the death penalty varies quite a bit by region*). In 2012, California voters came very close to abolishing the death penalty by referendum. Almost half (48%) of California voters voted in favor of Proposition 34, which would have converted all California death sentences to life without parole (LWOP). The referendum campaign focused largely on the cost to taxpayers of California’s protracted capital appeals process, as weighed against the reality that very few executions are actually carried out — in other words, the same cost-benefit analysis that’s at the heart of Judge Carney’s ruling today.
    [* The Bay Area counties hardly ever impose the death penalty; as you can see from this list of current death row prisoners, Southern California is more heavily represented. In particular, the City & County of San Francisco district attorney’s office has had a longstanding practice of never seeking the death penalty, which some observers once thought might prove an obstacle for Kamala Harris‘s political ambitions.]
  • For some of the reasons why California carries out so few executions, see my 2011 post at NPR affiliate KALW’s now-defunct criminal justice blog, archived here.
  • Today’s ruling presumably will be appealed to the Ninth Circuit (although as discussed in comments here, it would be surprising but not inconceivable if it weren’t, since both Governor Jerry Brown and Attorney General Kamala Harris have historically opposed capital punishment). If this case does go to the Ninth Circuit, then it could have implications throughout the American West. Note that, for the very reasons spelled out in Judge Carney’s ruling, the Ninth Circuit’s capital appeals out of California tend to move very slowly. But Ninth Circuit judges do spend quite a lot of their time and energy reviewing imminently looming executions in Arizona. So the Arizona context will provide another set of experiences that Ninth Circuit judges might bring to bear (directly or indirectly) on this issue. (When an execution is looming, the Ninth Circuit homepage posts a range of documents under the heading “Inmates with pending execution dates.” Here’s an example such page for a currently pending case.)
  • Interestingly, the 2012 California referendum gained momentum in part thanks to this article by Ninth Circuit judge Arthur Alarcon and his former law clerk Paula Mitchell (cited by Judge Carney’s ruling at page 6), which added up the enormous costs of California’s death penalty system. For instance, the Los Angeles Times covered the Alarcon-Mitchell study here.
  • I’ve noticed some commentators making special note that Judge Carney is a George W. Bush appointee. I don’t think that matters so much. District court judges are the federal system’s trial-level judges — there are 600+ of them, some of them are more ideological than others, but regardless, 1) how they get appointed often has more to do with standing in the local legal community than partisan affiliation (even if there’s some scholarly disagreement about the extent to which district judgeships are/have historically been merely patronage appointments for senators) (Carney, for instance, was previously a state court judge appointed by Gray Davis), and 2) whatever their politics, district court judges are highly legally constrained — they (generally) have to follow the law as it currently is. Conversely, they are the least factually constrained judges in the federal system (theoretically), because they alone can hear evidence in the first instance (i.e. witnesses, exhibits, etc.) and they alone make findings of fact. Appeals courts, and the Supreme Court, are (theoretically) bound by the district court’s factual findings (although, for various reasons, this distinction matters less in cases that are vehicles for topics of broad public concern than in narrow disputes between particular parties; see generally: all of the recent gay marriage cases).
  • So, what probably matters more for understanding Judge Carney’s ruling is that he’s drawing on years of studies and proposals, both by the state of California itself and by academics and other observers, lambasting the high cost and glacial pace of California’s death penalty machinery. Those underlying facts are highly specific to California. Ironically, this ruling would seemingly provide little ammunition for death penalty opponents in states like Texas that actually do carry out the death sentences they impose.
  • However, Judge Carney does make more of a leap to get from those California-specific facts to the Eighth Amendment violation. Starting at page 17 of the ruling, he reasons that California’s death penalty, as actually carried out, is arbitrary and, as such, can serve no valid penological purpose. In other words, whether you’re ever actually executed depends not on your degree of culpability or the facts of your crime but on the idiosyncrasies of California’s byzantine appeals process. It will be interesting to see what higher courts make of this argument (and/or how the state of California responds). A key passage:

Screen Shot 2014-07-16 at 7.42.28 PM

  • One possibility: California could, conceivably, speed up its capital appeals process to comply with this theory of the Eighth Amendment, as three former California governors have proposed.