Constituional, Smonstitutional. Get on with It.

Doctor, when the cast comes off, will I be able to play the violin?
Of course, there's no reason you can't.
Great.  I never could before.

Which might be the story of California's death penalty.  

• Enacted in 1973, effective January 1, 1974
• 747 folks on death row (728 men, 19 women)
• 13 executions, the last in January, 2006
• Declared unconstitutional July 16, 2014
• Nevertheless, November 12, 2015

That last requires some explanation.  The explanation requires a bit more background than those bullet points, though they set out the general idea.

California has the largest death row in the country.  By far.  One major reason:  It doesn't execute people.  In fact, the 13 executions (again, none since January 2016) are only the third leading cause of death on the row there.  Natural causes leads the way.  When 69-year-old Ronald Seaton died in September after 26 years on the row, he was the 69th person to die of natural causes.  When James Tulk committed suicide in November 2006, he was the 14th to do so. Ten more have killed themselves since then.  (Here's the chart, from the California Department of Corrections.)

There are all sorts of reasons California doesn't actually kill the folks on death row.  Some is good lawyering.  But a major reason is the failure of California's court system.  Not that it reverses death sentences.  It doesn't much.  Rather . . . . Consider Ernest DeWayne Jones.

U.S. District Judge Cormac Carney told the story (citations omitted & paragraph breaks added) in an opinion he issued in July 2014.

After Mr. Jones was sentenced to death in April 1995, he waited approximately four years before the State appointed counsel to represent him in his direct appeal. Then, another four years later, on March 17, 2003, the California Supreme Court affirmed Mr. Jones’s conviction. In total, Mr. Jones spent about eight years litigating his direct appeal before the California Supreme Court—considerably less time than the 12 to 14 years spent by most individuals on California’s Death Row.

Mr. Jones’s state habeas counsel was appointed on October 20, 2000, five years after he was sentenced to death and while he was still litigating his direct appeal. By October 21, 2002, Mr. Jones’s counsel—the Habeas Corpus Resource Center, which continues to represent him in this federal habeas proceeding—filed his state habeas petition.

Six and a half years later, and over five years after the petition was fully briefed, on March 11, 2009 the California Supreme Court denied Mr. Jones’s petition in an unpublished order. No hearing was conducted, and no briefing was provided by the State beyond an informal reply.

Finally, on March 10, 2010, Mr. Jones filed his petition for federal habeas relief. Briefing on the petition was completed in January 2014, and the Court is reviewing his claims.

Note the first problem.  It took four years, FOUR YEARS!, to find counsel who were willing to take the case an direct appeal.  It took an additional year to get HCRC involved.  It's not that easy to find lawyers who are trained and competent and willing to take on these cases for what the courts pay. Not when you need counsel for 747 men and women.  And you see, California cut the funding of public defenders to do the work and won't pay enough for appointed counsel to take it on. Same for state habeas relief where the state won't provide the necessary funding for lawyers or investigators.

So, California insists on having a death penalty but refuses to provide the resources necessary to make it functional.

In April, just three months before Judge Carney issued his opinion, Jones amended the 27th claim in his habeas petition.  He'd been arguing that the delay in his case was unconstitutional.  Now he added

that as a result of systemic and inordinate delay in California’s post-conviction review process, only a random few of the hundreds of individuals sentenced to death will be executed, and for those that are, execution will serve no penological purpose. 

Which is what caught on.  Judge Carney began his opinion this way (paragraph breaks added, italics sic).

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone.

Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution.

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. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

And so, the bottom line. Judge Carney (appointed to the bench by the lesser Bush, George W, in 2003) declared California's death penalty law unconstitutional.

When I wrote about his decision last year, I said it was hard to imagine that Judge Carney won't ultimately be reversed.

Not because he's wrong. But because he's right.

This week, the 9th Circuit did what I expected.  They reversed Judge Carney's determination that California's death penalty was unconstitutional.  The Golden State can, they said, go back to intending to kill hundreds of people - even if it never, or almost never, kills any of them.  

It's not that the court said Carney was wrong about the law being unconstitutional.  It's that he thought that meant it should be stopped.  Here's the conclusion of the majority opinion written by Judge Graber (joined by Judge Rawlinson).

Many agree with Petitioner that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary. But “the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.” Sawyer, 497 U.S. at 234. Because Petitioner asks us to apply a novel constitutional rule, we may not assess the substantive validity of his claim.

It's not enough for the law to be unconstitutional, the court said.  The Supreme Court had to have recognized that it was unconstitutional at the time Jones was sentenced to die.  Judge Watford agreed with the outcome but not the reasoning.  He figured that Carney should have been reversed because Jones hadn't given the California Supreme Court the opportunity to reject them.

Either way, of course, the result is the same.  It doesn't matter if the law is unconstitutional. California can use it to kill people anyway.  

The Criminal Justice Legal Foundation, an organization devoted to the execution of as many people as humanly possible, promptly issued a press release quoting its Legal Director, Kent Scheidegger.  "This is a major victory for justice in California," he said.

Thereby recognizing that justice (whatever that might be) has no relationship to obeying the Constitution.

Law of Rule.