07/22/2014 11:07 pm ET Updated Sep 21, 2014

Can You Hear the Death Rattle of Capital Punishment in California?

On July 16, 2014, a federal trial court judge in Santa Ana ruled that the California death penalty system was unconstitutional -- not because actually executing a convicted murderer is cruel and unusual, but because the "inordinate and unpredictable period of delay" before the inmate is executed is a violation of the Eighth Amendment. It was not lost on Federal District Court Judge Cormac J. Carney that it is the appeals brought by the condemned prisoners that (initially, at least) trigger such delays, of over 25 years, on average, from sentence to execution. The old adage of the child who kills his parents and asks for mercy because he is an orphan may initially seem felicitous, but Judge Carney makes a compelling case for the dysfunction of the California system in a relative comparison with the arbitrariness and the length of time from conviction to execution in other states.

Judge Carney particularly focuses on the fact that of the 900 people sentenced to die in California since 1978, only 13 have been executed, while 79 have died from other causes and nobody has been executed since 2006 because of legal challenges to the method of lethal injection. There are few who would disagree with Judge Carney's assessment that California's death penalty appeals process is dysfunctional. We would have to look no further than on November 6, 2012, when California, the state with the most inmates on death row, was a hair away from passing a referendum to become the 18th state in the U.S. to ban capital punishment, and the sixth state to do so in the previous five years. The proponents of this referendum did not primarily focus on the typical philosophical and morality-based objections but on the financial costs borne by taxpayers and the state's inability to carry out the executions consistently and relatively expeditiously.

Most people have an intractable opinion when it comes to the death penalty. After all, how often does anyone change his or her mind on the bigger issues? It usually doesn't help to argue the evidence for or against capital punishment when an individual's stance is, at its core, about intangible morals and values, not empirical facts. I believe that there is no more enlightening crucible for the values inherent in the criminal justice system than the debate over capital punishment. I find no irony in the assertion that our society needs the death penalty to definitively assign the ultimate value of human life, yet I fully respect the opinions of death-penalty opponents who argue their own moral stance that "life is life." But, after Judge Carney's decision, I am very concerned that many murder victims' families will soon be dealt another painful blow. If the state retroactively eliminates the death penalty, many grieving people, already robbed of so much, will lose the justice and closure that juries, after a thorough and lengthy review of all the facts, had granted them.

I still believe that there's a moral imperative to use the death penalty where it's legal and administered in a fair and just manner. If virtuously and evenhandedly requested by prosecutors and imposed by juries, I believe that the death penalty strives for moral proportionality (i.e., does the punishment morally fit the severity of the crime?). Even Judge Carney recognized in his decision that the criminal justice system has "consistently affirmed the view that retribution, as 'an expression of society's moral outrage at particularly offensive conduct,' is a constitutionally permissible aim of capital sentencing schemes." Reading the Supreme Court decision that Judge Carney refers to (Gregg v. Georgia) sheds even more light on the value of retribution in criminal justice sentencing. Supreme Court Justice Potter Stewart wrote in that seminal capital punishment case:

The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.

In other words, there is still an essential purpose to capital punishment that transcends any failure to reach "empirical consensus" on whether there is a deterrent effect of the death penalty. Given this, do we have a duty to not throw out the proverbial baby with the bathwater in California and find a solution rather than impose the nuclear option? Despite his finding of unconstitutionality, Judge Carney seems to subtly hint at a few potential remedies: offering intermediate appeals to California appellate courts rather than directly to the California Supreme Court, additional funding for death penalty appellate defense lawyers and conducting concurrent federal and state habeas reviews rather than requiring the exhaustion of all state remedies first. However, in reality, California needs a global solution that focuses on the practical, the ethical, the equitable and the financial or we will lose capital punishment forever.

I think it is first important to focus on what types of cases statutorily qualify for the death penalty in California. Let's look at the hypothetical case of an 18-year-old named Paul who joins his friend Sam in the armed robbery of a local convenience store. About halfway through the holdup, and to the complete shock of Paul, Sam shoots and kills the clerk. Under California law, as long as Paul was a major participant in the robbery and acted with reckless disregard for life (hard to argue against in any armed robbery case), he could be sentenced to death along with his friend who actually pulled the trigger. It's important to understand that the majority of those on death row in the United States are sentenced to die for a murder committed during a botched robbery. It is also well to note that this is likely a significant factor accounting for the racial discrepancy in the imposition of the death penalty. In startling contrast, under California law if a person is convicted of torturing to death a child but does not "intend to kill" that child, he could not be sentenced to death. In fact, I have prosecuted a case where the death penalty could not legally be imposed despite a man having been convicted of the brutal torture and murder of a 3-year-old boy, but could have been imposed for the man who robbed a convenience store that ended with his accomplice unexpectedly or accidentally killing a clerk.

There is no doubt that there are fundamental inequities of California's current capital punishment law. However, as I stated before, it doesn't mean that we should throw out the proverbial baby with the bath water. It only means that in the name of justice, we should wake up, revise the law's language, and fix the flaws.