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.