A federal trial judge in California has handed down an opinion, Jones v. Chappell, striking down California’s death penalty. I found the opinion unusually weak, and I thought I would explain why.

Let’s start with the judge’s argument. According to Judge Carney, California’s “death row” is really not death row at all. Once a person is sentenced to death in California, he then spends on average over 25 years fighting his conviction in state and federal court. The direct appeal following conviction usually takes more than a decade; the state habeas process usually takes around 5 years; and the federal habeas process usually takes more than a decade. The state and federal courts usually find ways to invalidate the sentences. But even when the courts don’t ultimately overturn the capital sentence, the execution can’t come until the legal arguments are resolved. Because that process takes around a quarter century or more, being on death row in California is pretty much the same as getting life in prison without the possibility of parole. Indeed, for every one person actually executed, around seven have died of natural causes. Of the 900 individuals that have been sentenced to death in California since 1978, only 13 have been executed. And California has not executed anyone since 2006.

Why does this matter for the constitutionality of the death penalty? According to Judge Carney, the low chances of actually being executed makes the California death penalty unconstitutional for two reasons. First, it makes the system arbitrary:

For [a person] to be executed in such a system, where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death. See Furman, 408 U.S. at 293 (Brennan, J., concurring) (“When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system.”). To be sure, Furman specifically addressed arbitrariness in the selection of who gets sentenced to death. But the principles on which it relied apply here with equal force. The Eighth Amendment simply cannot be read to proscribe a state from randomly selecting which few members of its criminal population it will sentence to death, but to allow that same state to randomly select which trivial few of those condemned it will actually execute. Arbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises.

Second, the system works so poorly that it can’t actually have the benefits that it is supposed to have:

[F]ew could dispute that long delays preceding execution frustrate whatever deterrent effect the death penalty may have. Indeed, the law, and common sense itself, have long recognized that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition. See, e.g., Harmelin, 501 U.S. at 989 (“[D]eterrent effect depends not only upon the amount of the penalty but upon its certainty . . . .”); United States v. Panico, 308 F.2d 125, 128 (2d Cir. 1962) (“There can be little doubt that the effectiveness of punishment as a deterrent is related not only to the quality of the possible punishment but to the certainty and promptness as well.”), vacated on other grounds, 375 U.S. 29 (1963); see also Commission Report at 115 n.8 (agreeing that “[i]f there is a deterrent value [to the death penalty], . . . it is certainly dissipated by long intervals between judgment of death and its execution”). In the death penalty context, where finality of punishment is not achieved until the actual execution of the inmate, the case is no different.

I’m not an expert in the Eighth Amendment, but these seem like really weak arguments to me. First of all, I don’t see how the low chance of actually being executed makes the death penalty system constitutionally arbitrary. The low odds have two primary causes, neither of which seems arbitrary in a legally relevant sense.

The first cause is that judges intervene and invalidate a majority of sentences on legal grounds. Granted, in the Ninth Circuit, those opinions can sometimes seem arbitrary. But judicial arbitrariness is not attributable to the state, so it’s hard to see why that renders the state’s action arbitrary.

A second cause of few inmates being executed is that inmates die from natural causes over time. But I don’t see how a person’s natural death can render the state’s death penalty system arbitrary. The system itself is not arbitrary. It continues to apply to those who are alive and does not apply to those who are dead. That seems systematic, not arbitrary.

Second, I’m not persuaded by the arguments about deterrence. Fewer executions might mean less deterrence. But it might not. Maybe what deters is the announcement of the death sentences, not the actual execution. It’s hard to know. Plus, why isn’t the relevant question deterrence per punishment imposed, not deterrence of the system as a whole? If many are sentenced to death but few are actually executed, you may end up with more deterrence per actual execution than you would have if everyone were executed.

Finally, I was unpersuaded by the judge’s way around the Ninth Circuit precedent indicating that delay is not a valid ground for an Eight Amendment claim. See generally Smith v. Mahoney, 611 F.3d 978
(9th Cir. 2010)
(delay of 25 years). Judge Carney suggests in a footnote that those cases don’t apply because those petitioners were saying that the delay in their own cases violated their rights. Here the petitioner is saying that his rights are violated because he is being convicted under a system that is broken, without any direct application to him. But that seems like a curious distinction. If an as-applied challenge in a typical case fails, how can a facial challenge succeed based on what happens in a typical case?

Anyway, all of that is in addition to the more obvious puzzles raised by delay-based Eighth Amendment claims. Most obviously, the delay in capital cases reflects a commitment to taking extra care in capital cases. It seems rather perverse to say that extra care makes the death penalty less constitutional, not more. Also, it seems strange to say that the death penalty is unconstitutional because its rarity means that it amounts to a sentence of life in prison, when the remedy for the death penalty being unconstitutional presumably would be, well, a sentence of life in prison. I gather that Justice Breyer is sympathetic to these sorts of claims, but they strike me as too ironic to be taken entirely seriously.

Or so it seems to me as a non-expert in Eighth Amendment law. If I’m missing something, I hope readers will chime in with corrections.