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Supreme Court Justice Breyer: California embodies the death penalty’s ‘fundamental defects’

The lethal injection facility at California’s San Quentin State Prison. (Eric Risberg/AP)

California is not the first state that springs to mind when considering the country’s death penalty, perhaps owing to how infrequently inmates there are executed. The last execution in California took place in 2006, when the state executed 76-year-old Clarence Ray Allen for three counts of first-degree murder. Even before the current decade-long hiatus — prompted by concerns over lethal injection protocols — it was still rare for the state to put someone to death. Since 1976, the year the U.S. Supreme Court reinstated the death penalty, California has executed 13 of its death row inmates; Texas, far and away the country’s most active death-penalty state, executed 13 inmates last year alone.

But it is California, not Texas or any of the dwindling number of other states that still carry out executions, that is home to an outsize proportion of the country’s death row inmates. The Golden State has 1 in 4 death-row inmates in the United States, making it home to more prisoners with death sentences than the next two states (Florida and Texas) combined. Lacking the ability to actually execute inmates has not stopped new death sentences from being sought and handed down, either. The state has had 167 inmates sentenced to death since the beginning of 2007, according to corrections officials, which means that even since executions stopped, more people have been sentenced to death in California than sit on the death rows in all but four other states.

Many of California’s row inmates have been there for decades. This week, the U.S. Supreme Court rejected an appeal filed by one of these inmates arguing that it was unconstitutional to keep people on death row, under the threat of a possible execution, for such long periods of time. Richard Delmer Boyer was convicted of murdering an elderly couple and first sentenced to death in 1984. The couple, William and Aileen Harbitz, were found dead inside their Fullerton, Calif.,  home, with a combined 43 stab wounds between them, according to court records. Boyer had appealed to the court and asked whether his spending 32 years and counting under a death sentence creates “psychologically inhumane stress” and violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

The U.S. is executing fewer inmates and sentencing fewer people to death

The justices denied Boyer’s petition, but Justice Stephen G. Breyer dissented, saying that California’s death penalty system appears to personify issues he has raised with capital punishment in the United States. In his brief dissent this week, Breyer, who was not joined by any other justice, cited a dissent that he wrote last year, joined by Justice Ruth Bader Ginsburg, questioning whether the death penalty is constitutional:

“Put simply, California’s costly ‘administration of the death penalty’ likely embodies ‘three fundamental defects’ about which I have previously written: ‘(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.'”

Breyer had previously questioned whether it was unconstitutional to execute an inmate who was on death row for decades, saying in 2007 that such delays bring up “a serious constitutional question.” (Last year, the justices did not hear an appeal from a Texas inmate who had been on death row for 30 years and brought up the issue; Breyer dissented there and said the justices should hear the case, but because of an issue with the man’s sentencing, rather than the length of time.)

In his two-page dissent released Monday, Breyer pointed not only to the long periods of time inmates can spend on death row, but also to factors raised in a 2008 report released by the California Commission on the Fair Administration of Justice, a group established by state lawmakers to examine their criminal justice system. Breyer highlighted the report’s finding that more than 10 percent of death sentences in California were reversed, and its note that inmates sentenced to death in California were more likely to commit suicide or die from natural causes than be executed.

“Indeed, only a small, apparently random set of death row inmates had been executed,” Breyer wrote. “A vast and growing majority remained incarcerated, like Boyer, on death row under a threat of execution for ever longer periods of time.”

Justices Breyer and Ginsburg: ‘It is highly likely’ the death penalty is unconstitutional

About a quarter of the more than 700 inmates on California’s death row have been there for more than 25 years, according to Justice Department statistics. At the end of 2013, the last year for which data was available, the average death-row inmate there had spent a little more than 16 years with a death sentence, higher than the national average. In general, though, the amount of time death-row inmates nationwide will spend there is only likely to increase, as the country executes fewer inmates each year while holding nearly 3,000 people on death row.

Proponents of capital punishment argue that death-row inmates who remain for lengthy periods of time are there primarily because of persistent legal challenges. In an opinion last year responding to Breyer’s dissent questioning the death penalty, the late Justice Antonin Scalia said the increasing delays between death sentences and executions were due to “nothing other than the proliferation of labyrinthine restrictions on capital punishment, promulgated by this court.”

The system in California has faced legal questions about both the delays and the nature of how it would conduct executions. At least 16 of California’s death row inmates have exhausted their appeals and could be put to death if executions resume, according to the Los Angeles Times. A federal judge said in 2014 that California’s death-penalty system was unconstitutional because of what he called “inordinate and unpredictable delay,” but an appeals court overturned that last November.

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Days earlier, California had proposed a new lethal injection protocol after its earlier methods were struck down by a court. These new methods were an attempt to “develop a humane and dignified execution,” and state corrections officials said they decided to inject a single chemical “because it reduces the risk of pain and possible complications, and addresses constitutional concerns.” It remains to be seen whether these will be adopted.

In the meantime, more than a decade after California executed Clarence Ray Allen, hundreds of death-row inmates remain in San Quentin State Prison and Central California Women’s Facility. When Allen was put to death in the early minutes of Jan. 17, 2006, more than 33 years after he was sentenced to death, he used his last statement to praise his last meal (which included buffalo steak, Kentucky Fried Chicken and sugar-free pecan pie). He also said he wanted to thank “all of the inmates on death row that I’m leaving behind” and said “they will be joining me one day.”

Further reading:

Florida revamped its death penalty after the Supreme Court struck it down

Executions in the U.S. were down last year. But the country still put more inmates to death than most other nations.

Americans agree that innocent people can be put to death under the current system

‘It was fundamentally unfair.’ A prosecutor apologizes for his role in putting an innocent man on death row