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.

   

life in prison, with the remote possibility of death.

Cormac Carney went to the Air Force Academy for a year, then transferred to UCLA where he played football.  He played professionally for a year after college, then went to Harvard for law school.  In January 2003, Bush the Younger nominated him to be judge of the U.S. District Court, Central District of California.  He was confirmed by the Senate three months later.

None of that, except indirectly the fact that he's a judge, is why I'm writing about him.  Hell, it isn't why I wrote about him in 2009 or 2011, either.  I write about him every couple of years because every couple of years he does something remarkable from the bench.

He holds the government accountable for its misconduct in prosecuting folks they think are bad guys.

Judges just don't do that.  On the rare occasions they acknowledge that the government cheated, they blow it off.  It was inadvertent.  It didn't matter anyway.  Can't make an omelet without breaking a few eggs.  But Carney.

In 2009, he dismissed, with prejudice, fraud and conspiracy charges against Broadcom.  

Based on the complete record now before me, I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense. The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.
To submit this case to the jury would make a mockery of Mr. Ruehle's constitutional right to compulsory process and a fair trial. The Sixth Amendment to the United States Constitution guarantees the accused the right to compulsory process for witnesses in its defense. For this constitutional right to have true meaning, the government must not do anything to intimidate or improperly influence witnesses. Sadly, government did so in this case.

In 2011, he was the judge in Islamic Shura Council of Southern California v. Federal Bureau of Investigation. The government's lawyers lied to him, and he called them on it.  They said they had a right to do it.  National Security and all.  Because terrorism.    To which he said, fuck you. (Though not in those words.)

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

Wednesday afternoon, he did it again.  This time it wasn't prosecutors or lawyers.  This time it wasn't the feds.  It was, instead, California.  Which in a detailed, carefully laid out and factually delineated 29 page opinion he excoriated for creating a systematically dysfunctional death penalty system.  It's captioned

ORDER DECLARING CALIFORNIA'S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER'S DEATH SENTENCE.

It's not that he says the death penalty itself is a problem.  It's the way California implements it.  Here's the guts of it, laid out in the first two paragraphs.

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.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. 

There are, Judge Carney points out, since California's death penalty law took effect in 1978, more than 900 men and women have been sentenced to die.  13 have been executed.  93 have died of natural causes, drug overdoses, homicide, or suicide. 1 was killed by another state. There are, today, 748 on death row.

Why the problem?  Why can't California be Texas (or Ohio)?  Because it won't provide the resources. 

Every death sentence must be reviewed by the California Supreme Court.  

To pursue that appeal, indigent Death Row inmates are entitled to the assistance of court-appointed counsel. See Cal. Penal Code § 1240. But inmates must wait years—on average, between three and five years—until counsel is appointed to represent them.

(Footnote, explaining that they're all indigent, omitted.)

But why that delay?  Oh, cause 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, because California insists on having a death penalty but refuses to provide the resources necessary to make it functional, it just has a system of (one more time) 

life in prison, with the remote possibility of death.

And that possibility isn't merely remote.  It's also random, arbitrary.  Under the circumstances, and because of California's actions not the inmates', the law loses any deterrent value it might otherwise have and fails even to provide meaningful retribution.  Or so he says.

And that's unconstitutional.

Kamala Harris, California's Attorney General, says that she's reviewing the decision to decide whether to appeal.  It's hard to imagine that she won't.  And hard to imagine that if she does Judge Carney won't ultimately be reversed.  

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

Because Law of Rule.

  Carney Order

Governor Once Moonbeam and the Third Rail

Social Security, they say, is the third wheel of politics.  Or maybe it's medicare.  Or defense.
Once it was probably school busing.  Before that, integration.
And remember slavery?
There's always a line politicians won't cross.
Romney said that his comments about the 47% were "not elegantly stated."  Now he says they were "completely wrong," which is something altogether different.  But, hey.  It's a game.
Obama spent how many years "evolving" on gay marriage before Joe Biden forced the question on him and he admitted that he believes there's a constitutional right to it but that states should be free to decide whether to enforce that right or prohibit it.
Which brings me to California, Proposition 34, the death penalty, and Jerry Brown.
Prop 34 is, of course, the ballot referendum on the death penalty in California.  If a simple majority of voters endorse it on November 6, California, with the nation's largest death row, will join the abolitionist states.  It will replace the sentence of death in prison inflicted by prison guards under color of law with a sentence of death in prison by natural causes or however else it might occur.  That's a horrible sentence, a worse one to some people.  But it isn't a sentence of murder, and that's no small thing.
In February 1960, Caryl Chessman was nearing the end of his almost 12 years on death row as the Red Light Bandit, convicted of of a series of robberies, kidnappings, and rapes.  Chessman said he was the wrong guy, and he fought for years over his sentence.  In fact, his was the longest fight over a death sentence in US history to that point.  And now it was almost over.

Governor Pat Brown

Caryl Chessman

As Chessman and his lawyers played out the string, a 21 year old kid, called his dad.  

Pop, won't you do something about this?  Call it off, will you?  Please.  You know it's the right thing to do.

The kid was Jerry Brown.  The father was Pat Brown, then-Governor of California.  Maybe it was Jerry's call, maybe not.  (He claimed it was at the request of the State Department because of a trip Eisenhower was taking to South America where feelings against executing Chessman were strong.)  Whatever convinced him, Governor Brown issued a 60-day reprieve.  He didn't commute the sentence, though, and in April Chessman was killed.  (A federal court order granting a one-hour stay so the judge could hear last minute evidence that Chessman was innocent arrived moments too late.)
Young Brown kept at it.  In 1968, he was among those holding a vigil outside the gates of San Quentin when Aaron Mitchell was executed.  He was Governor when the California legislature passed a bill reinstating the death penalty.  He vetoed it.
David Siders in the Sacramento Bee.

He called it "a matter of conscience," a sentiment he expanded upon when he was asked while running for president in 1992 if his opposition to the death penalty was absolute.
"Yes," Brown said. "When someone is contained in a cage, then to bureaucratically, coldbloodedly snuff out their life, whether by poison or by electrocution or by gas, it seems, it doesn't seem right to me."

So you think it would be an easy call.
Yet ask him about the death penalty now, and he won't say.  Two years ago he was asked generally why he wouldn't try to stop executions any more. Siders again.

"I don't know," Brown said on an airplane between campaign rallies in the Central Valley. "You want to reinvent the world. But we have the world. And this is a matter that's been before the voters … been before the Legislature. At this point in time, it's relatively settled." 

Governor Who?

And now?  Proposition 34 would end the death penalty.  Governor Brown the Younger can't enact it.  But he can support it.  He can certainly vote for it.  After all, he'll be casting a ballot on Novermber 6 (if he hasn't already done so absentee or early or whatever is possible in California).
And maybe he'll vote for Prop 34.  Or maybe not.  He won't say.
He's not talking about the secret ballot or anything. 

He said [he] is focused solely on his own initiative to raise the state sales tax and income taxes on California's highest earners.

Which, you know, means that he refuses to answer the question.  To give Prop 34 any moral support.  To use the at least somewhat bully pulpit of the Governorship.
It's not too late.
The election is 30 days from tomorrow.  Five seconds to answer a reporter's question.
About whether lifelong principles count.
Or is he afraid the death penalty is the third rail.
The voters could prove him wrong on that one. 

Read more here: http://www.sacbee.com/2012/10/05/4883699/jerry-brown-sidesteps-death-penalty.html#storylink=cpy

Read more here: http://www.sacbee.com/2012/10/05/4883699/jerry-brown-sidesteps-death-penalty.html#storylink=cpy

Read more here: http://www.sacbee.com/2012/10/05/4883699/jerry-brown-sidesteps-death-penalty.html#storylink=cpy

Proposition 34 and the Potemkin Village

Back in April I wrote about Proposition 34.  (More precisely I was writing about how Proposition 34 leads to LWOP which is horrific but still better than the alternative.)
Prop 34, if you haven't paid attention, is the California ballot measure that, if it's passed on November 6, will eliminate the death penalty in The Golden State and replace it with LWOP.  From one form of Death in Prison to another.  Sigh.
Anyway, it's a major fight.  I'm not going to take up your time now rattling on about why the death penalty should be abolished and how it is that abolition in California would be a major step and a great thing and dammit even good for California.  You know what side I'm on.  Want more information? Trying to figure out how to volunteer to help the effort? Go here.
That's not what I want to talk about today.
I want to talk about honesty.
Which forces me to talk about New Hampshire on my way to talking about California.
See, a few years ago, The Granite State came really close to abolition.  Things were looking good, since really, who gave a damn.  After all, there was nobody on the row there, and New Hampshire hadn't actually executed anyone since 1939.*  In fact, the legislature passed abolition, but the governor vetoed it.
That's not actually the story I'm interested in.  The story is that one sheriff who spoke explained that the death penalty was really important, really really import, really really really.  Not so they could execute people of course.  They wouldn't want to do that, he didn't quite say, not in the state with the motto

Live Free or Die

(Well, maybe they would want to kill people in a state with that motto.  But I digress.)
No, the death penalty was important because otherwise people wouldn't just plead out to life in prison.  Which makes a certain kind of sense.  If the idea of a plea bargain is that you avoid something worse, then LWOP only works as a plea bargain if there's something worse to avoid.
And that brings us back to California, and to Debra J. Saunders column in the San Francisco Chronicle.
She's opposed to Prop 34.  Oh, she recognizes the structural problem.  
California's death penalty law is close to worthless as a killing machine.  They don't actually execute people in California, it mostly seems.  They just spend extra tens of millions trying capital cases, housing death row inmates, and pursuing years of endless litigation that's more likely to end with an inmate's death from natural causes than from a legally ordained killing.
So Mark Klaas likely won't have the satisfaction of knowing that Richard Allen Davis will be killed for the murder of Polly Klaas.

Klaas wants to see Davis executed, he told me later, because the man who killed his daughter should have no influence in this world. That, he emphasized, is "what's supposed to stop."

Likely won't happen.  Oh, Davis will die eventually. Everyone does.  But the odds are against it's happening at the instance of the state.
See, it's not about the killing.  There's no closure. Klaas doesn't expect the pain to go away or to miraculously heal should Davis ever be killed.  But the collateral consequence for Californians, that's something else..

He cited cases like that of John Gardner. After the convicted sex offender was arrested for the murder of 17-year-old Chelsea King in 2010, Gardner went for a deal. He admitted to killing King, and also to the 2009 murder and attempted rape of 14-year-old Amber Dubois. Gardner even led authorities to Amber's bones.
Parents Brent and Kelly King agreed to the plea bargain, because, they said in a statement covered by CBS News, "the Dubois family has been through unthinkable hell the past 14 months. We couldn't imagine the confession to Amber's murder never seeing the light of day, leaving an eternal question mark."
"You take the death penalty off the table," Klaas told The Chronicle, and communities will be held hostage to the fear and uncertainty that follow when a young person goes missing. "Crimes will not be solved. Victims will not be recovered."

And there's Jared Lee Loughner who might have been found insane rather than guilty of murder and locked away for the rest of his life after a trial rather than quickly pleading guilty and getting locked away for the rest of his life if California Arizona (How the hell would Prop 34 have changed that?) didn't have a death penalty.

See, it's not about actually killing people.  The important part of the death penalty is the threat.

Not because it deters murderers.But because it deters trials.

We need to keep the death penalty, Saunders says, because as an empty threat it has a practical value.  Like that New Hampshire sheriff wondered, why the hell would anyone voluntarily plead to LWOP if there wasn't the risk of something worse?

The overwhelming majority of cases never go to trial. 

That thing about getting your day in court? Telling it to the judge? 12 good men and true?

Only cranky old men and hundreds of years of an Anglo-American legal system ever believed in that shit.

It's uncertain.  It's time consuming.  And as Reagan's Attorney General Ed Meese once told US News and World Report,

If a person is innocent of a crime, then he is not a suspect.

So what's the problem?

Joe Deters is the prosecutor in Cincinnati, Ohio.  I suspect that he and I couldn't even agree about whether the Sun rises in the east or the west.  But he knows the problem.  He explained to Andrew Welsh-Huggins of the AP

To use the death penalty to force a plea bargain, I think it's unethical to do that.

If you think they deserve to be killed, Joe figures, then you get the jury to agree and the courts to agree and kill them.  If they don't deserve to be killed, then you don't take a chance.

Our criminal justice system, and certainly our capital punishment system, shouldn't be a game of chicken based on threats - empty or real.

When you get right down to it, Californians may just be the next group to say they're tired of even the idea of killing in their names.  It's bad policy.  It's bad economics.  And it's morally offensive.

And behind California's a capital punishment system, there's no reality.  It's a studio set, a Potemkin village.

To use the death penalty as a bargaining chip is to deny it even the pretense of moral force.  To keep the death penalty on the books because it's a useful bargaining chip is to deny even the pretense of moral force to the whole justice system.
And really, that pretense is about all they have out in California these days.


-----------------
*Things have changed.  There's now one person on New Hampshire's death row.

Kill 'Em While We Can

They must be worried.

How else to account for it?

723 men and women on the row.  Just 13 executions.  It's been over 6 years since the last one.

But suddenly . . .

They must be worried.

How else to account for it?

They've spent years litigating around the margins, insisting that they can save the three-drug sequence the judge says is unconstitutional rather than switching to a one-drug scheme he says is likely fine.

But suddenly . . .

They must be worried.

How else to account for it?

Governor no-longer-Moonbeam Brown said just three-days after that they should consider switching to the one-drug method.

And suddenly . . .

They must be worried.

How else to account for it?

Because suddenly . . .

Kent Scheidegger, who may or may be worried himself, explains.

The legal theory in this motion is, in part, the same as in CJLF's petition for writ of mandate, noted in this post.  The California Department of Corrections and Rehabilitation has a duty to execute these sentences.  While that department has broad discretion on the specifics, continuing to litigate the enjoined three-drug protocol for years after the federal court has given the go-ahead to resume executions with a one-drug protocol is an abuse of that discretion.

Because they must be worried.

Which is why, suddenly . . .

Dan Whitcomb for Reuters:

Los Angeles prosecutors asked a judge on Wednesday to order the execution of two condemned killers using a single drug for lethal injections, a move intended to end a 6-year hold on the death penalty in California over the method used by the state.

The move comes days after Democratic Governor Jerry Brown told prison officials to consider using the single-drug execution protocol, and ahead of a November ballot measure that seeks to repeal capital punishment in the state.

Maybe it's just me, but the tea leaves here suggest that they're really scared abolition will pass.  And they won't get to kill all those folks.