In a recent decision, the 9th Circuit Court of Appeals overturned California’s death penalty. For the rest of the nation, a decision deeming California’s specific death penalty unconstitutional may not initially seem like big news. However, seeing as California had the largest death row population in the country, the impact from a decision like this may be huge.
It’s worth mentioning from the outset that this is not the first time California’s death penalty has had potentially crippling legal troubles. Back in 1972, a case called People v. Anderson held that the state’s capital punishment system violated the state’s ban on cruel and unusual punishment. In addition, the death penalty itself is no stranger to strong legal opposition. In the same year as the Anderson decision, the Supreme Court of the United States issued Furman v. Georgia, which called for a degree of consistency in how the death penalty is applied. The immediate effect of the decision was a moratorium on executions nationwide.
Ultimately, despite short victories, the death penalty won the war. In California, a voter initiative known as Proposition 17 reintroduced the death penalty back to the state. With 37 states adjusting their death penalty laws to comport with Furman, the Supreme Court spoke again on the death penalty in 1976 in Gregg v. Georgia. There, a series of criteria and procedural requirements had to be met before a death sentence could constitutionally be issued, but nonetheless, the death penalty was officially revived.
Since the 70s, the dialogue on capital punishment has been focused around an Eighth Amendment claim of a cruel and unusual implementation and basis. This has heightened an awareness of and objection to how capital punishment impacts certain classes of people. In some instances, it has been successful. More frequently, opposition falls on deaf ears.
What’s different about this decision, Jones v. Chappell, is it hinges on the administrative aspect of capital punishment, rather than solely the moral or equitable grounds most objections are based on. In fact, the court specifically pointed to a “systemic delay caused by the dysfunctional state review process [which] has resulted in the arbitrary selection of a small handful of individuals for execution,” as a specific reason for why the state’s death penalty unconstitutional. Indeed, in California, the average time from conviction until execution is 20 years. Moreover, there hasn’t been a single execution in the state since 2006.
While this decision may still be appealed, what it does is really incredibly significant. This decision lays the framework for an entirely new realm of constitutional objections to capital punishment systems. Rather than simply belaboring and struggling over the nuances of existing Eighth Amendment claims, it accepts those points and rules that as applied, the system still isn’t working.
Essentially, a new claim has been created; advocates may now argue, with persuasive authority – in many states, binding authority – that a specific state’s death penalty statutes are so dysfunctional, so ill equipped to handle the gravity of the task it has been created to do that it itself is unconstitutional as a cruel and unusual punishment. Think about it – being sentenced to die, but only actually having a remote possibility of a potential death at the hands of the state creates an entirely knew form of punishment that sounds as though it were created by Kafka.
Of course, the specific facts around California’s death penalty are important. California’s delays are undoubtedly unique. Nonetheless, Arizona just experienced a similar debacle when having to appeal a 9th Circuit decision and petition the Supreme Court to order that they were under no obligation to reveal the source of a drug in their execution cocktail. The company that has manufactured existing, “acceptable” execution drugs stopped doing so when they discovered what their drug was used for, and states have scrambled to use similar substances, many of which are remarkably more problematic.
Texas has reportedly had to beg Oklahoma to lend them some drugs just to keep executions moving. Moreover, when you have Judge Kozinski, the Chief Judge of one of the most powerful and persuasive circuits in our nation, calling for a return of the guillotine and firing squads to subvert the administrative mess lethal injection has posed, it’s pretty clear the entire system is crumbling.
Signs seem to indicate a breaking point in capital punishment, and for those opposed to it, this decision creates, at least for now, a pretty universal and powerful argument that how capital punishment has been conducted isn’t working. Just as importantly, it marks a clear indication that a system that delivers empty promises and bureaucracy to victims of heinous crimes is not only unfair to them, it’s unfair to us all.