Life in Prison with the Remote Possibility of Death: The Death Penalty and California's Broken Punishment Paradigm

Judge Carney's 39 page opinion finding California's death penalty is already setting off a wave of debate in the media. We will see yet whether it catches any political fire in this dry but so far politically placid season in California.  There is much to recommend in the opinion (read it here courtesy of the LA Times).  At its core is an unassailable principle of contemporary 8th Amendment law, that a sanction as severe as death cannot be administered arbitrarily.  The constitutional basis of the contemporary death penalty is that the statutes "narrow" the realm of death eligible crimes so that a rational basis existed for distinguishing those convicted of murder and sentenced to death and those convicted of a similar murder and given life.  Judge Carney reviewed California's system that has handed out around 900 death sentences, but only executed 13 people, and concluded that the system was unconstitutionally arbitrary because no rational basis exists distinguishing those actually executed from many not, and likely never, executed.  His conclusion, summarized in our title quote, is that a death sentence in California is actually a sentence to "Life in Prison with the remote possibility of death." That is not what the Supreme Court decisively upheld as constitutional back in the 1970s (see Gregg v Georgia 428 U.S. 153, 188 (1976))

The Judge also turned to an analysis of the purposes of punishment that is increasingly central to 8th Amendment analysis of both death and long prison sentence cases.  Clear Supreme Court doctrine makes clear that only two (deterrence and retribution) of the four classical purposes of punishment (those plus rehabilitation and incapacitation) can justify the death penalty.  Why?  In a nutshell, long prison sentences can deliver as much rehabilitation and incapacitation as death, so if such a severe sanction can be justified on penal grounds it must be on deterrence (scare potential offenders) and retribution (satisfy community/victim outrage at a particularly heinous murder).  Here few will argue with Judge Carney's bottom line argument that whatever deterrent or retributive value executions might have in a system (Texas? Virginia?) that delivered them more efficiently and effectively (of course those systems may violate other constitutional rights in order to achieve high execution rates, probably do), California, where delay between sentence and execution (if it ever occurs) is around 25 years, cannot deter or deliver retributive justice.

Proponents of the death penalty are and will argue that the delay argument is flawed because the system can be fixed to speed up executions.  This is the crux of Judge Carney's analysis.

California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death. Of the more than 900 individuals that have been sentenced to death since 1978, only 13 have been executed. For every one inmate executed by California, seven have died on Death Row, most from natural causes. The review process takes an average of 25 years, and the delay is only getting longer. Indeed, no inmate has been executed since 2006, and there is no evidence to suggest that executions will resume in the reasonably near future. Even when executions do resume, the current population of Death Row is so enormous that, realistically, California will still be unable to execute the substantial majority of Death Row inmates. In fact, just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years. Such an outcome is obviously impossible for many reasons, not the least of which is that as a result of extraordinary delay in California’s system, only 17 inmates currently on Death Row have even completed the post-conviction review process and are awaiting their execution. See Appendix A. For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose.

Those who insist that California could have a "normal" death penalty (whatever that means) quickly enough has to address Judge Carney's assessment of the overall system (which includes the paralyzed legislative politics around capital punishment) and its incapacity.  More importantly, those prisoners who have already served more than twenty-five years have an excellent argument that whatever might be true in the future, to execute them now after being degraded or even tortured by decades of uncertainty violates the Eighth Amendment.

Judge Carney's opinion now joins the 3-Judge court opinion on California's mass incarceration system upheld by the Supreme Court in Brown v. Plata (2011) in condemning not the means of punishment but the political system in California whose highly politicized and inconsistent crime policies has produced forms of both capital punishment and imprisonment that violate the Eighth Amendment and offend human dignity.  California, the homeland of governing through crime for decades, needs not just realignment and a repeal of capital punishment, it needs a re-boot of a fundamentally broken justice paradigm (for further details of what might replace it see the last chapter of my new book Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New Press) out next month)

It is not clear this case will ever be reviewed by the Supreme Court (because the facts are so California specific it is unlikely to establish a precedent for other states), but the question whether even to appeal to the Ninth Circuit Court of Appeals provides Attorney General Kamala Harris, who has already distinguished herself as having a pro-active system view of California's justice problems, to make the case to Californian's that Judge Carney (appointed by President George W. Bush) is right and California's current law does not deserve a defense in the appeals court.  An opponent of capital punishment who has both pragmatic and principled reasons to be reluctant to impose her views on California voters who remain highly divided, she could invite the legislature and citizen initiative groups to propose new capital statutes and put them before the voters.  The backlash at converting existing death row inmates to life without parole will be brief, and easily answered by Judge Carney's findings that almost none of them faced an actual likelihood of execution (one suspects it will be further muted once word of massive unhappiness among the current occupants of death row at being transferred into California's degrading prison system will further allay political damage to the Attorney General from pro-death penalty voters).