There hasn’t been an execution in California since 2006, but that may be about to change. The Atlantic reports that a Federal appeals court has just overruled a 2014 lower-court finding that California’s death-penalty statue was unconstitutional. (The full opinion is here.) It’s a complicated ruling, basically arguing that the lower court didn’t have the power to declare the law unconstitutional because the Supreme Court was bound to enforce federal laws in force at the time each inmate was sentenced (you can read more at the Atlantic site or in the original opinion). The opinion concludes this way, and perhaps a lawyer can clarify it for the rest of us:
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.
The lower court ruling found that the way the death penalty is applied in California violates the Constitution’s Eighth Amendment prohibiting cruel and unusual punishment. Because of the long appeals process, the average time between sentencing and execution of a prisoner in California was twenty-five years. That amounts to life without parole for many prisoners, most of whom die before execution:
Among the states that allow it, California is simultaneously the most and least prolific wielder of the death penalty. With about 750 inmates awaiting appeals or execution, California houses about one-quarter of all death-row inmates in the nation. Juries in the state send an average of two additional inmates there each month, according to the Los Angeles Times. In 2012, 52 percent of California voters narrowly rejected a ballot initiative to abolish capital punishment in the state.
At the same time, the state carries out a fraction of its death sentences. California executed only 13 of the more than 900 inmates sentenced to death since the return of capital punishment in the 1970s. By comparison, the Sacramento Bee reported that more than 70 death-row inmates died of natural causes, another 24 inmates had committed suicide, and another “half a dozen” inmates were murdered or died of drug overdoses over the same period.
So, although the opinion, written by Justice Susan Graber, admits that the long delay in executions renders the system “dysfunctional,” that doesn’t matter: the state can resume killing people. My opposition to the death penalty is a matter of record on this site, and so I found the Atlantic’s conclusion chilling:
The panel’s decision is a significant step toward resuming executions in the state for the first time since 2006. On November 6, the state also unveiled a new lethal-injection protocol using a single drug. State officials may choose from one of four different barbiturates to execute an inmate—amobarbital, pentobarbital, secobarbital, or thiopental—to provide flexibility amid the ongoing lethal-injection drug shortages. Amobarbital and secobarbital have not previously been used to execute a prisoner in the United States.
And, of course, the 25-year average waiting time will probably remain the same, because the appeals process is unchanged. Remember that since capital punishment in California resumed in 1978, nearly twice as many people on Death Row committed suicide as were executed. That alone is a sign of cruel and unusual punishment. So, by the way, is life without parole. I refer reader to my June post on how well the judicial system works in Norway, where there is no capital punishment and no life sentences, with or without parole.
Ironic that the lengthy appeals process, giving an inordinate opportunity to reverse the outcome, is deemed cruel and unusual punishment.
Does that mean a newly created law that says “if appeals aren’t complete in 2 years then fry the prisoner anyway” would fix that?
I think PCCE’s point is more along the lines of “a judicial system that is designed to rehabilitate offenders and to effectively address the reasons for their antisocial behaviour is less cruel, cheaper and more productive then the retribution-based system in the US today”. or words somewhere down that direction of thinking.
Of course, since such a system would eventually reduce the number of people in prison (because you effectively rehabilitate the offenders) there’s no room in the Norwegian system for anyone to make a profit. So it’s just inconceivable that the present-day profiteers living off the US justice system would allow such changes there. “Pile them high, house them profitably (for someone), and ensure that they’ll keep on coming back” appears to be the popular policy there.
Do any of those waiting on ‘death row’ kill other inmates or prison staff?
I assume they do because AFAIK, death row inmates are kept separate from other prisoners, and Jerry says some are murdered. That could be an incorrect assumption of course.
What have they got to lose?
From what I read of Norway, even though the maximum sentence is only 21 years, that doesn’t mean that everyone will be freed after that amount of time, so there effectively can be life imprisonment.
For some types of criminals, rehabilitation is impossible and life imprisonment is the only rational way to deal with this sort of person. The conditions in which they live, however, ought to be much more humane.
Criminals, or people with a mental problem? (Which normally means a defective biochemistry.)
Well, those with a mental problem, certainly, particularly psychopathy. Seems likely that anyone given a 21-year sentence has some sort of mental problem.
In that case they should be in a hospital, not a prison? It may be a locked hospital, but nonetheless, a hospital is a very different place to a prison.
Semantics. 🙂 I already indicated that I agreed with a more pleasant environment than what prisons currently provide, but whether that occurs in a prison or hospital doesn’t matter much, since you can’t heal psychopathy.
I oppose the death penalty. In 1935 all death sentences in NZ were changed to life imprisonment and it was abolished in 1941. Unfortunately it was reinstated by a more conservative government in 1951, but was abolished again, for good this time, and the last execution was in 1957.
I suspect if there was a referendum there’d still be many people who supported it, but I don’t think it would be a majority. (I hope not anyway.)
In 2007 NZ was one of the countries that supported a UN resolution banning the death penalty worldwide. Even if it had been successful, it would have no force in law anywhere that still carries it out.
The US is, of course, the only OECD nation that still has the death penalty.
In the US the individual states get to decide. I’ve always been proud of Michigan – banned since 1846.
Excellent! I’d be proud too! 🙂
The quandary about how to execute people humanely is absurd. It begs the question of the purpose of the death penalty. Whether one, as a death-penalty advocate, believes the purpose is deterrence or believes the purpose is retribution, logic requires a brutal, agonizing, humiliating, and public death to maximize either one. The Romans understood that.
Agreed–good point. It’s hypocritical for people to want the death penalty for deterrence, or even for retribution, and then keep it all hush-hush, executing people in secret.
Surely any inhumane method (and I think that includes all methods in use in the USA today) would count as “cruel and unusual” and therefore be unconstitutional.
But, as you say, a humane method, such as gassing with nitrogen, would not achieve the desired deterrence effect unlike all the inhumane methods… oh, wait, they don’t work either.
Best you get rid of the death penalty altogether then.
In fact getting rid of the death penalty might be advantageous (apart from the ethical issues). If a murderer who would get the death penalty flees to Europe, currently they could not be extradited back to the States.
During the years when there was no death penalty in the USA (1972-1976) how was the nation diminished? What did we gain when the death penalty was reinstated?
Pentobarbitol and Secobarbitol are the main drugs used for physician-assisted suicide. I wonder if the manufacturers will refuse to sell them in the US now that they’ll be used for capital punishment.
That would be outrageous and abominable (so, unfortunately, quite likely to happen). I suspect the pro-life** faction would regard that as a win-win.
(**Pro-life, that is, to be enforced on anyone who actually wishes to die with dignity at a time of their choosing. Not pro-life for anyone who doesn’t want to die.)
It seems the death penalty in California should be eliminated for incompetence if nothing else. Waiting several years for council, an average 25 years to get through the process, just write it off and close the door. They already have certain crimes that automatically eliminated the death penalty anyway. I know this because I was on a jury some years ago out there that was one of these eliminated crimes.
Having no death penalty to worry about makes the trial easier on the jury system. Even when people say that giving the death penalty to someone does not bother their judgement, it does. It hangs over a jury every day of the trial and it gets to people. Take it off the table and a huge weight is removed with it. If you have had to serve on one of these trials as I have, you know what it’s like.
The American system is based on revenge rather than rehabilitation. Yes, there are psychotic recidivists who are likely to follow the same murderous pattern, but surely that’s why there are secure lunatic asylums? (Ooops Political Rectitude undone!) Yes, there are people who should be separated from society at large, but the American system has become an industry and the one thing that Americans are really, really good at; is making money. Other products tend to be outsourced, like small household goods, clothing etc. the things that make up most of consumer demand. This causes unemployment, poverty and desperation in the poorer classes, while the rich get away with grand theft on a massive scale because they control the legislature. Remember the golden rule?
Assume you mean – Them with the gold makes the rules.
I can imagine if one of the franchises printed this on their cups there’d be people dropping hot coffee everywhere
apologies. this is on the wrong post
Californian law on this is plainly dysfunctional and mindlessly oriented to vengeance. I agree that the Norwegian/Scandinavian rehabilitation oriented example is best except with regards to serial killers or mass killers like Brevik. Even if Brevik was insane (and he was way too organised to be so – just a hyper narcissist) it was clear he would always be a clear and present danger to the public and the priority should first and foremost should be that in this case of extreme violence (nothing to do with deterrence or vengeance or even rehab because its clear Brevik is a psychopath to anyone familiar with the case and his behaviour before during and after the trial) Unless compelling evidence for retrial has emerged in first 10 ten years, such people should be slated for life imprisonment, with no review – life meaning life.
I believe the 21 yr Max Sentence is a starting point in cases such as Breviks ,that at or near the time of release he is assessed and if found to be in the same Psychotic frame of mind the Sentence can be extended and so on ad infinitum.
Yes, it’s a starting point only. I seriously doubt whether Brevik will ever see freedom again.
I dread to think the amount of innocent people executed in the US, that for me is the one argument against the Death Penalty that can’t be denied and as such the Death Penalty should be repealed.
Indeed. No reason to find any other justifications (though there are some).