By Paige St. John and Maura Dolan
Removing one of the several obstacles to resuming executions in California, a federal appeals panel Thursday struck down a judge's ruling that the state's snarled capital punishment system is arbitrary and therefore unconstitutional.
In overturning the July 2014 ruling by U.S. District Court Judge Cormac J. Carney, however, the panel did not squarely address whether California's death penalty is so dysfunctional that it violates the U.S. Constitution.
"The elephant is still in the room," said John Phillipsborn, a San Francisco attorney who intervened in the case on behalf of criminal defense lawyers in California. "The issues the (case) framed are still going to need to be addressed. ... Something has to give."
The 9th U.S. Circuit Court of Appeals opinion addressed the case of inmate Ernest DeWayne Jones, sentenced to death in 1995 for the murder and rape of his girlfriend's mother.
When Jones' appeal finally reached U.S. District Court 19 years later, Carney ruled that California's appeals system was plagued by "systemic delay and dysfunction," making executions so rare that they were random and therefore unconstitutional.
On Thursday, the three-judge panel reversed the decision, calling Carney's logic "novel" and unsupported by legal precedent.
"Many agree ... that California's capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary," Judge Susan P. Graber, a Bill Clinton appointee, wrote for the panel. Nevertheless, she wrote, the Jones decision asked the court to "apply a novel constitutional rule," something barred in habeas reviews.
It now falls to the taxpayer-supported Habeas Corpus Resource Center to decide whether to appeal to a larger panel of the 9th Circuit or to the U.S. Supreme Court, or both. In the meantime, California probably remains years away from resuming executions, which were halted in 2006.
"Nothing in today's ruling undermines the overwhelming evidence that California has a dysfunctional death penalty system that is broken beyond repair," the center said in a statement.
Kent Scheidegger, legal director of the pro-death penalty Criminal Legal Justice Foundation, said more legal challenges lie ahead. "It is a never-ending stream," he said.
Last week, in a settlement agreement with Scheidegger's foundation, the state proposed a single-drug execution protocol meant to end nearly a decade of courtroom battles over a three-drug lethal cocktail. Public comment is being sought through January. Scheidegger said it could take a year for the protocol to wind its way through the administrative rule-making process, which would need to be completed before California prosecutors could even contemplate asking a Superior Court judge to set a killer's execution date.
Meanwhile, pro- and anti-death penalty groups are sponsoring competing ballot measures for the November 2016 election.
One, backed by San Francisco-based Death Penalty Focus, would convert all death sentences to life without parole. San Bernardino County District Attorney Mike Ramos is championing another initiative that seeks to cut by half the time from conviction to execution. The goal is between 10 and 15 years.
"It is about fairness," Ramos said. Delays that stretch legal appeals for decades may still be constitutional, he said, "but if we don't fix it, is a question of justice."
Both measures would require condemned inmates to work and live much like other inmates in California prisons.
The political fight over the initiatives would immerse California voters in an increasingly polarized national debate over capital punishment. States such as Arizona and Oklahoma have struggled to carry out executions under diminishing availability of the drugs needed to do so. At least two U.S. Supreme Court judges have indicated they welcome a test case on the constitutionality of the death sentence.
Former President Jimmy Carter joined the fray this week, calling for a global end to the death penalty.
California's longest-serving condemned prisoners have been on death row for 36 years and have not yet exhausted their appeals. Currently, only 16 of about 750 condemned inmates have finished the process and could be put to death if the state were conducting executions.
Since the death penalty was restored in 1978, about 900 inmates have been condemned, but the state has killed only 13, while 24 have committed suicide; others died from natural causes.
As a result, death row for men at San Quentin State Prison is full and California is expanding it into other parts of the prison.
"What remains is the status quo: years and years of appeals and billions of dollars to prop up a system that exists in name only," said Ana Zamora, criminal justice policy director for the ACLU of Northern California and a death penalty opponent.
Executions were stayed in February 2006 on the eve of the planned execution of Michael Morales, who raped and killed a 17-year-old girl. Morales' lawyers argued that the state's lethal injection procedures fell short even of the practices used by veterinarians to euthanize animals. Later that year, a federal judge halted all state executions, saying the three-drug procedure created risk of a painful death.
Legislative analysts have estimated that the cost of capital punishment to state taxpayers is $150 million a year, a tab that does not include much of the bill from federal appeals.
(c)2015 Los Angeles Times