The Court surprisingly announces that "[t]here is, of course, no constitutional right to appeal." Ante, at 751. That statement, besides being unnecessary to its decision, is quite arguably wrong. In Griffin [], Justice Frankfurter, expressed doubt that there was a constitutional right to an appeal . . . If the question were to come before us in a proper case, I have little doubt that the passage of nearly 30 years since Griffin and some 90 years since McKane [] would lead us to . . . decide that a State must afford at least some opportunity for review of convictions, whether through the familiar mechanism of appeal or through some form of collateral proceeding. There are few, if any, situations in our system of justice in which a single judge is given unreviewable discretion over matters concerning a person's liberty or property, and the reversal rate of criminal convictions on mandatory appeals in the state courts, while not overwhelming, is certainly high enough to suggest that depriving defendants of their right to appeal would expose them to an unacceptable risk of erroneous conviction. [Citations.] Of course, a case presenting this question is unlikely to arise, for the very reason that a right of appeal is now universal for all significant criminal convictions.
Nearly thirty-three years even later, the admonition of de Tocqueville not to confuse the familiar with the necessary clearly cuts the other way. Only an ideologically bound originalist (i.e. no reasonable jurist) could fail to see that McKane's 1894 holding is now repugnant to the constitution's due process provisions.
Though forgotten by courts, Brennan's above footnote was reproduced in full in Were There no Appeal: The History of Review in American Criminal Courts , immediately before the 49-page article's grand conclusion:
If it is ever appropriate for history to foreclose debate over the meaning of a part of the Constitution, the issue of a requirement for some means of review of criminal convictions does not qualify. [11]2. Systemic Appellate Dysfunction And Jones v. Davis
An opportunity for an en banc Ninth Circuit panel to retire McKane arises from the three-judge panel decision in Jones v. Davis , [12] which recently vacated Central District of California Judge Carney's Order Declaring California's Death Penalty System Unconstitutional . [13] In an introductory synopsis, Carney wrote (at 1-2; emphasis in orig.):
[D]ysfunctional administration of California's death penalty system has resulted, and will continue to result, in inordinate and unpredictable delay . . . [T]he 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.
The three-judge panel summarized Carney's Order as follows (at 7-8):
Relying primarily on [] Furman . . . the district court held that the "systemic delay and dysfunction" in California's post-conviction review process was unconstitutionally "arbitrary," because a capital prisoner's selection for execution "will depend upon . . . how quickly the inmate proceeds through the State's dysfunctional post-conviction review process." The court concluded that "where . . . only an arbitrarily selected few of those sentenced to death are executed, the State's process violates the Eighth Amendment['s cruel and unusual punishment clause] ."
To concretize the "dysfunction," suffice it to note that the California Supreme Court has a growing backlog of hundreds of death penalty appeals; that it already can take over 25 years to decide a first appeal; [14] and that, s ince 1978, of over 900 convicted murderers sent to death row, 87 have died of natural causes or suicide, [15] while the sentences of only 31 have become legally final, of whom only 13 have been executed (owing to a drug-related 2006 moratorium, now set to end in 2016). Several other death penalty states have similarly small execution rates. [16] As Brennan pointed out in Furman, after providing a table of annual execution counts (Furman, at 291 n. 40, 294):
Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain . . . the execution of such a tiny sample of those eligible.
However, the Ninth Circuit panel vacated Carney's Order on the creative and binding ground that Furman did not address postconviction processes, being limited to trial court care-in-sentencing (Jones, at 24; emphasis in orig):
First, unlike the prisoners in Furman, [Jones] does not allege arbitrariness at sentencing. [17] Instead, he alleges that the State "arbitrarily" determines when to carry out a lawfully and constitutionally imposed capital sentence. Second, Petitioner does not contend that the State has granted unfettered discretion to a fact-finder to decide on an execution date. [18]
Accordingly, the panel unanimously adduced that Jones' claim was novel, and therefore was barred because of nonretroactivity [19] and/or Jones' failure to first file it in the state court. [20] Wherefore, the panel dismissed the case, conceding that California's death penalty appellate processes might well be dysfunctional.
If and insofar as Jones raises a novel claim, it is certainly not because Furman does not concern postconviction processes. [21] This ground for finding novelty is flat up against: (1) Furman itself, in which the majority held that "the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment," [22] and in which the freakish rarity of executions was (as in Jones) a primary statistic of independent concern; (2) Gregg v. Georgia , [23] in which two pluralities reinstated Georgia's death penalty, one explaining that Georgia's apparently adequate automatic appeal to the Georgia Supreme Court was an "important" consideration in finding compliance with Furman, the other approvingly detailing that appeal process; and (3) Godfrey v. Georgia , [24] which subsequently held that Georgia's Supreme Court had failed to tailor the new trial court sentencing rules narrowly enough to obviate standardless sentencing discretion in the trial courts.
In addition (and retiring McKane), the right to a criminal appeal is now guaranteed by the Fourteenth Amendment's due process clause. [25] Accordingly, an adequate appeal process is a necessarily implied concomitant of Furman's sentencing requirements.
3. TakeawaysDysfunctional appellate systems do not offend equal protection, but they do fall far short of what should be today's Fourteenth Amendment's due process mandate ; and, re the death penalty, they fall even farther short of Furman v. Georgia' s heightened Eighth Amendment care-in-sentencing mandate.
In light of systemically dysfunctional appellate processes increasingly at issue in death penalty cases such as Jones v. Davis, it is necessary that the federal courts promptly retire McKane v. Durston, by declaring that today's Fourteenth Amendment due process guarantee incorporates an adequate criminal right to appeal.
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