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California's Death Row Revived by 9th Circuit

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By Casey C. Sullivan, Esq. on November 12, 2015 2:57 PM

The "machinery of death" is creaking back into action in California after a Ninth Circuit decision revived the state's capital punishment system today. In a surprising ruling last year, Judge Cormac Carney declared that the state's death penalty system was so slow and arbitrary that it constituted cruel and unusual punishment. He ordered the whole thing shut down.

But that ruling has now been overturned on a technicality, with the Ninth announcing today that the district court should not have entertained the argument in a habeas review.

Dying of Old Age on Death Row

California's capital punishment system is far from speedy. As Judge Carney noted in his 2014 decision, almost half of the state's death row inmates have been there for more than 19 years. Given the robust review procedures before an inmate can be executed, it can easily take 25 years or more before state and federal remedies are exhausted. And while 900 people have been sentenced to death in California since 1978, only 13 have actually been executed.

That creates an intolerable system that threatens prisoners with "the slight possibility of death, almost a generation after" sentencing, Judge Carney ruled. But as of Thursday morning, that ruling no longer stands.

A Novel Constitutional Theory

What was more surprising about Judge Carney's ruling would have been less surprising had it just said capital punishment itself was unconstitutionally cruel, or that lethal injection violated the Eighth Amendment. Instead, it ruled that the delay between sentencing and execution -- a delay created largely to protect inmates -- was itself unconstitutional. It was a novel take on the death penalty.

And that novelty is what got it overturned. According to the Ninth Circuit, the claims raised before Judge Carney were barred by the Supreme Court's 1989 ruling in Teague v. Lane. Under Teague, federal courts cannot announce a new rule of constitutional law in a habeas case.

The district court had framed the question as a basic objection, not a novel theory. Teague did not apply because "the rule [Petitioner] seeks to have applied here -- that a state may not arbitrarily inflict the death penalty -- is not new" but is "inherent in the most basic notions of due process and fair punishment."

The Ninth Circuit was not convinced. The petitioner, Ernest Dewayne Jones, sentenced to death in 1995 for killing his girlfriend's mother, sought to apply a "new rule" on collateral review, as forbidden by Teague. That rule wasn't a ban on arbitrary executions, but on excessive delay -- a rule that the Ninth had already found was prohibited by Teague in 2010. And with that, California's brief vacation from capital punishment ended, for the time being at least.

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