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Eenie, Meenie, Miny, Die

Federal District Court Judge Cormac J. Carney held, in an Order filed July 16, 2014, that California’s death penalty system was unconstitutional.

This holding resulted in the death penalty sentence of Ernest Dewayne Jones being vacated.

In holding California’s death penalty system unconstitutional, Judge Carney relied heavily upon opinions — note well the use of the plural there — that almost certainly would be dissenting opinions if decided by the nine-person political body which has appropriated the title of “The Supreme Court of the United States” today. These opinions are collected together under the heading Furman v. Georgia, 408 U.S. 238, which temporarily became the law in 1972.

Ironically, the Furman opinions are arguably inconsistent and arbitrary. I say, “ironically,” since to the extent there is any commonality to the Furman opinions, the commonality is the idea that a system which inconsistently and arbitrarily selected candidates to be murdered by the State was, for that reason, violative of the Eighth Amendment’s prohibition of cruel and unusual punishment. But for starters, as with many decisions by that political body today, the Furman opinions, charitably viewed, resulted in a 5-4 split. Four Justices would have found no constitutional violation. Two thought the very idea of the State murdering people constituted cruel and unusual punishment — something I sadly admit most of the Founders probably would not have accepted. And although the remaining three Justices seemed to be more-or-less in agreement that the problem was inconsistency and arbitrariness in the application of the death penalty, there was enough disagreement over specifics that no Justice joined any other Justice’s opinion regarding the unconstitutionality of the death penalty.

In the end, all the five who carried the day could really completely agree on was this:

Petitioner in No. 69-5003 was convicted of murder in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26-1005 (Supp. 1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S. E. 2d 628 (1969). Petitioner in No. 69-5030 was convicted of rape in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26-1302 (Supp. 1971) (effective prior to July 1, 1969). 225 Ga. 790, 171 S. E. 2d 501 (1969). Petitioner in No. 69-5031 was convicted of rape in Texas and was sentenced to death pursuant to Tex. Penal Code, Art. 1189 (1961). 447 S. W. 2d 932 (Ct. Crim. App. 1969). Certiorari was granted limited to the following question: “Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?” 403 U.S. 952 (1971). The Court holds that the imposition and carrying out of the death penalty in these cases [*240] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.

Really. That’s it. That’s the entire “per curiam” opinion in Furman.

What’s missing, of course, is any kind of reasoning — legal or otherwise — which would probably not be an impediment to any ruling of the modern “Supreme” Court. After all, if they ever ultimately get to decide this issue anew, anything they have to say is going to be political bullshit, anyway.

At first blush, it wasn’t really all that different then, either. There’s a lot of politics — particularly when you try to slosh your way through Justice Marshall’s opinion — in Furman.

However, many of the concurring opinions appear to coalesce around this point, elucidated by Justice Douglas:

“A penalty…should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatorily.”[1]

Douglas’s own opinion seemed to be more specifically aimed at the “discriminatorily” aspect of the system that then meted out death throughout the country. To his mind — and I am not saying I disagree by using the words “to his mind” — it was largely blacks who received death penalties.

The Leopolds and Loebs are given prison terms, not sentenced to death.[2]

For Justice Brennan, unsurprisingly, the interpretation of “cruel and unusual punishment” was subject to the “evolving standards of decency that mark the progress of a maturing society.”[3] There was a danger that “an extremely severe punishment…may reflect the attitude that the person punished is not entitled to recognition as a fellow human being.”[4] Human dignity is a theme that runs throughout Brennan’s opinion. Ultimately, though, Brennan too was concerned with “the arbitrary infliction of severe punishments.”[5] It wasn’t just the severity — although “a severe punishment must not be unacceptable to contemporary society,” because this would “not comport with human dignity.”[6] Some punishments might be quite severe, but acceptable to contemporary society.[7] As a final principle, the punishment must not be “excessive,” which for Brennan meant “unnecessary,” or “nothing more than the pointless infliction of suffering.”[8] Brennan blended these four principles with which to test the constitutionality of the death penalty:

It is a denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve any penal purpose more effectively than a significantly less drastic punishment.[9]

And for Brennan, the death penalty failed on all four prongs of this test:

In sum, the punishment of death is inconsistent with all four principles: Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.[10]

Brennan, as you can see, was more absolute even than Douglas. Despite what he argued, it wasn’t just how the penalty was applied (i.e., it wasn’t just that it was arbitrarily, or capriciously, applied); death itself was an unconstitutional punishment.

Justice Stewart was not of the opinion that death was, in all circumstances, cruel and unusual punishment. His complaint was that

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. […] I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.[11]

Quite simply, Stewart argued, quoting former Attorney General Ramsey Clark in a footnote,

Most persons convicted of the same crimes have been imprisoned.[12]

Justice White maintained that the major problem was that the penalty was inflicted so seldom that it had no deterrent effect.

[C]ommon sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.[13]

And thus,

At the moment that it ceases realistically to further these purposes [deterrence; influencing the behavior of others]…the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.[14]

As the penalty was then being applied, White held, it had reached this point.[15]

Finally — as to those whose concurring opinions resulted in the “5-4 decision” — was Justice Marshall. Marshall took a Scalia-like approach, diving into history to determine the meanings of “cruel” and “excessive,” for starters.[16]

But then, echoing Brennan, and in the face of a national history that appeared to accept the penalty of death in numerous forms, Marshall said:

Perhaps the most important principle in analyzing “cruel and unusual” punishment questions is one that is reiterated again and again in the prior opinions of the Court: i. e., the cruel and unusual language “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today.[17]

He then dove off that board into a sea of speculation about whether or not the death penalty had a deterrent impact[18]; how the threat of death might be used;[19] whether it was more expensive to kill, or imprison;[20] Appearing thereafter to arrive at a conclusion, he holds:

There is but one conclusion that can be drawn from all of this — i. e., the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment. The statistical evidence is not convincing beyond all doubt, but it is persuasive. It is not improper at this point to take judicial notice of the fact that for more than 200 years men have labored to demonstrate that capital punishment serves no purpose that life imprisonment could not serve equally well. And they have done so with great success. Little, if any, evidence has been adduced to prove the contrary. The point has now been reached at which deference to the legislatures is tantamount to abdication of our judicial roles as factfinders, judges, and ultimate arbiters of the Constitution. We know that at some point the presumption of constitutionality accorded legislative acts gives way to a realistic assessment of those acts. This point comes when there is sufficient evidence available so that judges can determine, not whether the legislature acted wisely, but whether it had any rational basis whatsoever for acting. We have this evidence before us now. There is no rational basis for concluding that capital punishment is not excessive. It therefore violates the Eighth Amendment.[21]

He then notes that, even if it isn’t excessive, the informed American public finds it “morally unacceptable.”[22] It targets primarily the poor, and minorities, rather than the rich.[23] There is a huge risk of executing an innocent.[24] And the mere fact that death is a possible penalty distorts the legal system.[25]

To put it bluntly, Justice Marshall rather accurately characterized his argument when he said,

To arrive at the conclusion that the death penalty violates the Eighth Amendment, we have had to engage in a long and tedious journey.[26]

I have blogged that long road because I think it demonstrates the inexorable accuracy of Judge Carney’s conclusion that, if (yes, I said, “if”; not “as”) in Furman, so too in California the death penalty is unconstitutional — at least as applied.

The State [of California] has allowed such dysfunction to creep into its death penalty system that the few executions it does carry out are arbitrary.[27]

In a manner much less cruel and unusual than that employed by Justice Marshall, Judge Carney walks us through arguments demonstrating that the delay between sentence and execution — if execution ever occurs — is so long that the death penalty’s potential deterrent effect is completely dissipated;[28] the delay also attenuates, diminishes, and makes arbitrary any retributive impact;[29] the delay is not rationally related to, nor necessary for, the protection of the rights of the condemned, nor is the delay his fault;[30] these claims do not need to be returned to California for exhaustion because to do that…

…would require Mr. Jones to have his claim resolved by the very system he has established is dysfunctional and incapable of protecting his constitutional rights.[31]

Ultimately, in language that clearly tracks Furman, Judge Carney holds that:

Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional.[32]

My primary concern — fear, if you will — is that this decision will fall rather quickly. If the Ninth doesn’t reverse, I think the current bloodthirsty and pro-death political body known as “The United States Supreme Court” can certainly be counted on to do so. The reliance on Furman which might seem to give Judge Carney’s opinion a solid foundation hardly does that. The 5-4 split did not even result in a single coherent reasoned opinion. At best, there is a common thread that when the system becomes arbitrary and capricious in how the sentence of death is applied, it thus becomes per se cruel and unusual. But the Furman Court did not make this commonality explicit by adding it to the per curium opinion; it is not as solid a foundation as it might first seem. I think, if it makes it that far, the current “Court” will make short work of it.

Even if it stands, though, the upshot of this — notwithstanding Judge Carney’s “clarification”[33] — is not that the death penalty is unconstitutional, but that California’s system of “eenie, meenie, miny, die” is too arbitrary and, more importantly, needs to happen at a faster clip.

  1. Id. at 250, quoting Goldberg & Dershowitz, “Declaring the Death Penalty Unconstitutional,” 83 Harv. L. Rev. 1773, 1790 (1970). [↩]
  2. Id. at 252. [↩]
  3. Id. at 269-270. [↩]
  4. Furman at 273. [↩]
  5. Id. at 274, emphasis added. [↩]
  6. Id. at 277. [↩]
  7. Id. [↩]
  8. Id. at 279. [↩]
  9. Id. at 286. [↩]
  10. Id. at 305. [↩]
  11. Id. at 309-310, footnotes and citation deleted; ellipsis added. [↩]
  12. Id. at 310, fn. 12. [↩]
  13. Id. at 312. [↩]
  14. Id.; bracketed part and ellipsis added. [↩]
  15. Id. at 312-313. [↩]
  16. Id. at 322-329. He actually did this more than once, divining four principles from the historical survey that comprises pages 322-329, and then returning to a more specific “history of capital punishment” in the United States at pages 333-342. [↩]
  17. Id. at 329, citations deleted. [↩]
  18. He said it didn’t. Id. at 354. [↩]
  19. Interestingly, he argued that it was unconstitutional if used to encourage a plea agreement. Id. at 355. I say, “interestingly,” because I have heard this point discussed in plea negotiations. At any rate, he felt that since “life in prison” was a useful bargaining chip, employing the death penalty for the same purpose was — if you’ll pardon the paraphrase — overkill. [↩]
  20. The death penalty, he found, was much more expensive. Id. at 357. [↩]
  21. Id. at 358-359. [↩]
  22. Id. at 360. See what I mean about “political”? Anyone finding the death penalty morally acceptable was merely uninformed. [↩]
  23. Id. at 366. [↩]
  24. Id. at 367-368. [↩]
  25. Id. at 368-369. [↩]
  26. Id. at 370. [↩]
  27. “Order declaring California’s death penalty system unconstitutional and vacating petitioner’s death sentence” at 22 (July 16, 2014). [↩]
  28. Id. at 20. [↩]
  29. Id. at 21-22. [↩]
  30. Id. at 22-26. [↩]
  31. Id. at 26-27. [↩]
  32. Id. at 28-29. [↩]
  33. “Of course, the Court’s conclusion should not be understood to suggest that the post-conviction review process should be curtailed in favor of speed over accuracy.” Id. at 26. [↩]