WASHINGTON -- In oral arguments Monday, three federal judges did not signal whether they are willing to wade into the death penalty fight in California, instead focusing on procedural barriers that could hold up the case. The state has the largest population of inmates on death row in the country.
The judges, a panel of the U.S. Court of Appeals for the 9th Circuit, must decide whether to uphold a lower court ruling asserting that California's death penalty violates the Eighth Amendment’s ban on cruel and unusual punishment. In California, more than 900 inmates have been sentenced to death since 1978, but fewer than two dozen have actually been executed. The appeals process is so lengthy, an inmate can expect to wait at least 25 years before execution becomes a realistic possibility.
U.S. District Judge Cormac Carney, an appointee of former President George W. Bush, ruled last year that "the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay." Such a system, he reasoned, fails to work as a deterrent to crime and is unconstitutional.
Carney’s 2014 ruling overturned the death sentence of Ernest Jones, a man convicted in 1995 of raping and murdering his girlfriend’s mother.
Douglas Berman, a law professor at Ohio State University who specializes in sentencing law and policy, said that the court may choose to avoid the merits of the case and instead focus on a technicality. The judges could decide, for example, that the case needs to be sent back to state court, as federal courts tend to abstain from ruling on issues that remain undecided at the state level.
Jones' petition will sit in the California Supreme Court for up to four years if the federal appeals court judges send the case back, Michael Laurence, Jones' lawyer, warned.
"In that time, countless people will die of old age or sickness on death row, no executions will take place and the system is only going to become more backlogged," Laurence told The Huffington Post. "I don't know whether or not they have the stomach, but certainly the Eighth Amendment compels them to act."
The panel seemed "very interested in fleshing out the procedural issues," Ellen Kreitzberg, a professor at the Santa Clara University School of Law, told HuffPost. "They certainly weren't dismissive of Jones' arguments."
The office of California's attorney general maintains that the process is lengthy because the state seeks to provide careful, individualized reviews of death sentences. In its appeal, the state argued that "no Eighth Amendment precedent requires the State to force every case to conform to some schedule designed to ensure greater speed."
The Supreme Court last addressed the constitutionality of the death penalty almost 40 years ago, but has since considered various aspects of how states carry out the punishment. Most recently, the high court in June upheld Oklahoma’s use of a controversial lethal injection drug that had previously been used in several botched executions.
If the 9th Circuit judges decide to uphold the lower court ruling, their decision could end up echoing Justice Stephen Breyer's dissent from the June Supreme Court case. In his dissent, Breyer wrote that it was "highly likely that the death penalty violates the Eighth Amendment," due in part to the penalty's arbitrary application. It's possible that the case in California could also have ramifications for other states with lengthy death penalty delays.
A growing number of states have recently rejected the death penalty. Nebraska, which carried out its last execution in 1997, repealed its death penalty in May, with lawmakers citing the cost of maintaining a seldom-used punishment system. Connecticut’s high court ruled the state’s entire death penalty system unconstitutional earlier this month, on the basis that the punishment “no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose."
California has had a de facto moratorium on executions since 2006, when convicted murderer Michael Morales raised concerns about the state’s lethal injection method.
It's hard to predict what will happen, Laurence said. But "the system that we've had in California for the past 20 years is not going to fix itself."
Kim Bellware contributed to this story.
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