Mark Jenkinson / Corbis

The U.S. Ninth Circuit Court of Appeals reversed a lower-court ruling on Thursday that had declared California’s death penalty unconstitutional, removing a legal barrier to the potential resumption of executions on the nation’s largest death row.

A federal district court judge ruled last year in Jones v. Davis that excessive delays in executions throughout the state’s capital-punishment system violated the Eighth Amendment. But the three-judge appellate panel unanimously overturned the decision, ruling that the lower court made a procedural error in its review of the death sentence.

Among the states that allow it, California is simultaneously the most and least prolific wielder of the death penalty. With about 750 inmates awaiting appeals or execution, California houses about one-quarter of all death-row inmates in the nation. Juries in the state send an average of two additional inmates there each month, according to the Los Angeles Times. In 2012, 52 percent of California voters narrowly rejected a ballot initiative to abolish capital punishment in the state.

At the same time, the state carries out a fraction of its death sentences. California executed only 13 of the more than 900 inmates sentenced to death since the return of capital punishment in the 1970s. By comparison, the Sacramento Bee reported that more than 70 death-row inmates died of natural causes, another 24 inmates had committed suicide, and another “half a dozen” inmates were murdered or died of drug overdoses over the same period.

Critics and supporters of capital punishment alike attribute the execution rate to decades-long delays between a jury’s death sentence and the execution chamber.On July 16, 2014, federal judge Cormac Carney ruled in Jones v. Davis that the cumulative effect of these delays rendered California’s capital-punishment system unconstitutional.

Most Death Row inmates wait between three and five years for counsel to be appointed for their direct appeal. After the issues are briefed on direct appeal, another two to three years are spent waiting for oral argument to be scheduled before the California Supreme Court. On state habeas review, far from meeting the ideal goal of appointing state habeas counsel shortly after the death verdict, at least eight to ten years elapse between the death verdict and appointment of habeas counsel. When that counsel is appointed by the State, investigation of potential claims is hampered by underfunding, which in turn slows down the federal habeas review process. Then, after state habeas briefs are submitted, another four years elapse before the California Supreme Court issues a generally conclusory denial of the inmate’s claims.

And that’s just from the state appellate process; inmates must extinguish all appeals there before starting the federal appellate process. As a result, the average death-row inmate in California will likely wait a quarter-century between sentencing and execution—assuming they live that long.

“Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death,” Carney wrote.

The decades-long gaps between sentencing and execution, Carney argued, negated any “retributive or deterrent purpose” to the death penalty. Moreover, he suggested, executing only 13 inmates out of hundreds could only be described as the arbitrary application of capital punishment, which the Supreme Court expressly set out to forbid when it struck down the nation’s death-penalty statutes in the 1972 case Furman v. Georgia. Carney relied on Furman’s hostility to arbitrariness to buttress his decision.

Jones reached the federal courts through a writ of habeas corpus, which state inmates can file in federal courts to review their convictions or challenge the conditions of their incarceration. Congress and the courts, however, have steadily rolled back the Great Writ’s potency over the past three decades. In the 1989 case Teague v. Lane, the Supreme Court limited the scope of habeas petitions to prevent federal courts from applying “novel constitutional rules” to settled state convictions.

Using Teague, the three-judge panel accordingly reversed Carney’s ruling on procedural grounds. “Many agree with Petitioner that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary,” Judge Susan Graber noted in her majority opinion. But the court was bound by Supreme Court precedent to review state criminal sentences based on federal law at the time, she wrote, instead of constantly revisiting old sentences with each change in federal laws.

She also noted, however, that the panel did not reach the lower court’s substantive claim about the delays themselves, and therefore made no determination on whether they rendered the capital-punishment system unconstitutional.

The panel’s decision is a significant step toward resuming executions in the state for the first time since 2006. On November 6, the state also unveiled a new lethal-injection protocol using a single drug. State officials may choose from one of four different barbiturates to execute an inmate—amobarbital, pentobarbital, secobarbital, or thiopental—to provide flexibility amid the ongoing lethal-injection drug shortages. Amobarbital and secobarbital have not previously been used to execute a prisoner in the United States.

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