California's Death Penalty: Dysfunctional Review Dysfunctionally Reviewed

The panel unanimously held that Carney's Order affirmed a novel claim, which the federal courts therefore could not decide owing to nonretroactivity (so said Judges Graber and Rawlinson) and/or a failure to first exhaust state remedies (so said Judge Watford). There are perfectly clear errors in the secondary findings of nonretroactivity and nonexhaustion of remedies, but for the purposes of this article they are beside the point. [23] The only thing perfectly clear about the dispositive finding of novelty is that it rests on two confused and contrived errors:

1. Although Furman announced that it applies to "the imposition and carrying out of the death penalty," the panel held that Furman actually says nothing binding about the "carrying out" period.

2. Although "carrying out" a death sentence cannot begin until appellate review is finished, when the sentence becomes final, the panel held that Furman's "carrying out" period begins at close of trial. [24]

Based on these two mistakes, the panel concluded that, because Jones complains of post-trial, appellate dysfunction, Furman does not apply. In support, the Jones panel cited its own ignorance (Jones, at 25; here, "post-sentencing" is used to mean "post-trial"):

[W]e know of no other case in the four decades since Furman was decided that has invalidated a state's post-sentencing procedures as impermissibly arbitrary under the Eighth Amendment, strongly suggesting that the rule is novel.

However, in 1976 Gregg v. Georgia [25] reinstated Georgia's death penalty by holding that Furman's conditions had been satisfied in important part owing to a seemingly effective automatic appeal to the Georgia Supreme Court; but in 1980 Godfrey v. Georgia[26] found the appeal procedure impermissibly arbitrary insofar it permitted the Georgia Supreme Court to issue decisions so perfunctory that the court had failed to tailor the new sentencing rules narrowly enough to obviate the standardless sentencing discretion that Furman barred . [27] No reasonable jurist can dispute that dysfunctional appellate processes are on their face incompatible with Furman's care-in-sentencing requirements.

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The claim raised and affirmed by Carney is of course by now incorporated in numerous pending death penalty cases. Does it matter that the claim is now buried in Jones? Yes, in that the off-point record cries out for the articulation and application of sua sponte litigation standards. Yes, in that the opinion drastically, precedentially, and erroneously narrows Furman. Yes, in that Carney's Order and the amicus briefs comprise a body of fact and opinion that cogently and comprehensively puts at issue all three concerns listed in Breyer's dissent, as follows (at 2):

Today's administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty's penological purpose.Perhaps as a result, (4) most places within the United States have abandoned its use.

In Jones, the state affirmed as a defense that its postconviction review delays assured reliability. [28] The other two constitutional issues are the core of Carney's Order. The freakishly rare executions evince the de facto abandonment of the death penalty in the great majority of counties.

For the full story, see my paper Judge Carney v. The Death Penalty . Jones could be mooted by a 2016 state ballot eliminating the death penalty, but the paper has value beyond the Jones case, which is deconstructed only after a thorough review of legal context and precedents. Notably, from Furman it adduces four black-letter rules, where most commentators see little if any majority consensus. Here is the preface:

This paper reviews fundamental caselaw re the constitutionality of the death penalty, arguing that Jones v. Davis , which attacks California's appellate review processes as dysfunctionally backlogged, offers an excellent vehicle for reconsidering the death penalty la Justice Breyer's dissent in Glossip v. Gross . En banc, the Ninth Circuit should reinstate Judge Carney's Order Declaring California's Death Penalty System Unconstitutional , as cruel and unusual, and as lacking due process.

Besides promoting Carney's Order, my hope is to provide something akin to a hint of the record that by now should have been developed in Jones. I also hope to satisfy lawyers and insatiably curious laymen who are aware that legal disputes over the death penalty have recently sharpened, and want to glimpse precisely how battle lines are being drawn up, fought over, and glossed over in court, where the rubber meets the road. In essence, I am putting in accessible form my own research to that end, as applied to a frontline case. [29]

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