California's Death Penalty Ruled Arbitrary and Unconstitutional

By William Peacock, Esq. on July 17, 2014 | Last updated on March 21, 2019

Shocker: the death penalty in California is a joke.

Okay, we all knew that. It's a ridiculously expensive, wasteful, inefficient, broken, delayed, and completely and utterly dysfunctional system that, quite frankly, isn't doing its job: killing killers. Out of more than 900 sentenced to death, the state has only executed 13 since 1978 -- less than two percent. And any deterrent effect, after waiting decades for sentences to maybe, just maybe, be carried out is minimal at this point.

Whatever adjective you choose to describe our system in the Golden State, U.S. District Court Judge Carmac Carney has two more to add to that list: arbitrary and unconstitutional.

Underfunded System Full of Delays

It's no longer a death penalty: it's "life in prison, with the remote possibility of death," Carmac concluded.

He got there after running through a number of surprising statistics, including:

  • Of the 748 inmates currently on Death Row, more than 40 percent have been there longer than 19 years;
  • The exhaustion of all state and federal remedies will likely take 25 years or more;
  • More prisoners have died of non-execution causes (suicide, natural causes, etc.) since 1997 than have been executed since the death penalty was reinstated way back in 1978;
  • Nearly 20 percent of California's current Death Row population is over 60 years old;
  • Only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process.
  • Sixty percent of all inmates whose habeas claims have been finally evaluated by the federal courts were each granted relief from the death sentence by the federal courts. (Ten were resentenced to death by the state.)
  • From the sentence of death to the California Supreme Court's disposition of a statutorily required direct and automatic appeal, between 11.7 and 13.7 years will have elapsed;
  • Despite the Cal. Supreme Court's note that habeas counsel should be appointed shortly after a sentence of death, in practice, counsel isn't appointed until eight to ten years after the imposition of the death sentence.
  • More than 45 percent of current inmates without habeas counsel have been waiting more than ten years;
  • The average delay in current state habeas cases is 49 months from filing to decision, for an average total of 17 years from sentencing before exhausting state remedies.
  • As of 2008, the federal process took an average of 10.4 additional years from district to Supreme Court.
  • 74 percent of federal proceedings are stayed for additional state remedies -- in California, these interruptions average 3.2 years.

His data comes from a multitude of sources, including one study by Senior Judge Arthur L. Alarcon, a published lecture by Chief Judge Alex Kozinski, and multiple writings by former California Supreme Court Chief Justice Ronald M. George. All agree: this a broken system.


So, given the underfunded and delayed system, who is actually executed? Judge Carnac notes that it isn't about the severity of the crime or the date the sentence is imposed -- it's absolutely arbitrary, and depends simply on when the case can be squeezed through California's underfunded and "dysfunctional" system.

In Furman v. Georgia, a plurality decision with no controlling majority, Justice Stewart noted that the Constitution, specifically the Eighth Amendment's prohibition on cruel and unusual punishment, "cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Furthermore, Carmac wrote that the decades-delayed executions are too far removed from the crime to serve the penological goals of society -- deterrence and retribution. As Justice White stated in Furman, the arbitrary imposition of the death penalty "would be the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment."

And while other courts have held that delay alone doesn't violate the Eighth Amendment, these weren't delays in the interest of fair administration of justice -- this is just a broken (and unconstitutional) system.

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