Death Delayed Is Cruel and Unusual, 9th Cir. Told

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By Lance J. Rogers

Sept. 1 — A constitutional challenge to California's death-penalty system may hinge on whether the Ninth Circuit finds that a death-row inmate cleared the procedural hurdles that ordinarily prevent federal habeas courts from second-guessing state court decisions.

Counsel for condemned inmate Ernest DeWayne Jones Aug. 31 urged a three-judge panel of the Ninth Circuit to uphold a district court ruling that the dysfunctional administration of California's death penalty system has left his client languishing on death row for so long that it would be cruel and unusual punishment to execute him (Jones v. Davis, 9th Cir., No. 14-56373, argued 8/31/15).

But the judges openly wondered whether the district court overstepped its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), which calls for deference to a state court adjudication unless the decision was contrary to, or an unreasonable application of, “clearly established Federal law” laid out by the U.S. Supreme Court.

“Has the Supreme Court ever said that the mere fact that one is lingering on death row for a finite number of years—or infinite number of years—constitutes a constitutional violation?” asked Judge Johnnie B. Rawlinson.

Furman Revisited

Jones's lawyer, Michael Laurence, of the San Francisco-based Habeas Corpus Resource Center, pointed to Furman v. Georgia, the 1972 decision in which the U.S. Supreme Court voided all 40 death-penalty statutes, as evidence of a “clearly established” federal prohibition against arbitrariness in capital punishment.

According to Laurence, every justice in that case looked at how rarely executions occur; indeed, he added, Justice Potter Stewart stated in concurrence that the randomness of capital punishment was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

However, Judge Susan P. Graber didn't appear convinced. Furman dealt with how the death penalty was being imposed, not with how it was being implemented once someone had been “properly sentenced,” she said.

Exhaustion Bar Disputed

Arguing for the state, California Deputy Solicitor General Michael J. Mongan said federal habeas review is also premature because Jones failed to exhaust his state remedies as required under Section 2254(b)(1)(A).

Not only is Jones's “novel” Eighth Amendment argument based on a “theory never before adopted by any court,” but it was never raised at the state court level, he said.

Laurence contended that his client's challenge isn't barred because it qualifies for the exception in Section 2254(b)(1)(B), which waives the exhaustion requirement when no “corrective process” is available at the state level or circumstances render that process “ineffective.”

But Judge Paul J. Watford suggested that federal courts use this exception only to step in when a prisoner actually presents his claim in state court and then finds that the ongoing proceedings just isn't moving along fast enough, “whereas here, your client hasn't even tried yet.”

That's not true, Laurence said. In any event, the state has given no indication that it is inclined to fix “the dysfunction” in California's death-penalty process despite extensive studies showing that the system is underfunded and that inmates must wait years for the courts to appoint lawyers to handle post-conviction review of capital cases, he said.

Scandalously Slow or Just Meticulous?

Sending the case back to state court will only prove to be an exercise in futility, Laurence predicted. The California Supreme Court will take four more years to issue a terse “postcard denial,” and then the case will land back in federal court with little or no guidance on how the state court ruled, he suggested.

In the meantime, Jones continues to sit on death row, he said.

Mongan disputed the notion that the sluggish pace of the process means the system is necessarily random or that it leads to arbitrary results.

Yes, the review process can take time, but that's because “California insists on careful and deliberate and thorough review of every capital conviction and sentence,” he said.

Laurence disagreed, arguing that California's death-penalty process is not just slow but is systemically flawed. “The average time it takes from start to finish in the state courts exceeds 20 years,” he said.

“I don't think it is a stretch to say that a system that produces such lengthy delays constitutes a gross malfunction in the criminal justice system,” he added.

Just 13 Executions in 35 Years

In his decision invalidating California's death-penalty scheme, U.S. District Judge Cormac J. Carney labeled California's death penalty system “dysfunctional,” noting that more than 900 people have been sentenced to death in the Golden State since 1978 but only 13 have been executed (Jones v. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014)).

The rest of the death-row population must suffer an “inordinate and unpredictable period of delay,” Carney wrote.

“Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death,” he said.

“As for the random few for whom execution does become a reality,” he added, “they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”

Jones was sentenced to death in 1995 for raping and murdering his girlfriend's mother.

The case has generated so much media interest that the Ninth Circuit created a dedicated website housing the case information. No fewer than nine amicus curiae briefs have been filed in the matter.

Deja Vu?

Both parties in Jones were directed to submit supplemental briefs addressing the effect, if any, that the decision in Andrews v. Davis, 2015 BL 250802 (9th Cir. Aug. 05, 2015), should have on this case.

In Andrews, a different panel of the Ninth Circuit rejected a California death-row inmate's claim that it would violate the Eighth Amendment for the state to execute him after a long delay from the date of his sentencing. That type of claim is frequently referred to as a Lackey claim, named for the decision in Lackey v. Texas, 514 U.S. 1045 (1995).

According to Mongan, Jones's arbitrariness claim in essence is the same delay-based Lackey claim that was rejected in Andrews, by which this panel would be bound.

But Laurence strongly disputed that interpretation, arguing that the Andrews case didn't resolve, let alone address, Jones's arbitrariness claim. “The word ‘arbitrary' doesn't even appear in the Andrews decision,” he said.

Renewed Nationwide Debate

The argument about the constitutionality of California's death scheme is part of a growing national debate about capital punishment.

Justice Stephen G. Breyer gave hope to death penalty opponents this summer when he dissented from the U.S. Supreme Court's June 29 decision to uphold Oklahoma's controversial lethal-injection protocol, arguing that the time is ripe for the justices to take another look at the constitutionality of the death penalty. Joined by Justice Ruth Bader Ginsburg, Breyer wrote that circumstances have changed drastically over the past 40 years and that it is “highly likely” that capital punishment is unconstitutional.

Two months later, on Aug. 25, the Connecticut Supreme Court retroactively extended a legislative ban in that state on prospective executions to all inmates currently on death row, saying, “This state's death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose”.

On Aug. 26, a federal judge in Mississippi halted all executions in that state while he considers two inmates' challenges to the lethal-injection protocol being used by the Mississippi Department of Corrections. In his order granting a preliminary injunction, U.S. District Judge Henry T. Wingate concluded that the inmates “have shown a substantial likelihood in prevailing” on their claim that the state's intention to use pentobarbital in its compounded form, or midazolam, doesn't meet the state's statutory mandate that it use an “ultra short-acting barbiturate or other similar drug.”

Although 31 states still have capital punishment on the books, seven have eliminated it in the past decade, including Nebraska in May and Maryland in 2013.

Lethal-Injection Protocol Controversy

California hasn't executed anyone since 2006 and won't be doing so anytime soon.

On Feb. 21, 2006, a federal district court ruled that the lethal-injection protocol used at San Quentin violated the Eighth Amendment because it created an undue and unnecessary risk that an inmate will suffer cruel and unusual pain.

Although the California Department of Corrections and Rehabilitation substantially revised its injection protocol in 2008, a state court has since invalidated that revised procedure on the ground that it violated the state's administrative procedure act, and that ruling was upheld on appeal. (Sims v. Dep't of Corr. & Rehab., 216 Cal.App.4th 1059 (Cal. Ct. App. 2013)).

On June 3, the CDCR settled a lawsuit brought by the relatives of murder victims and agreed to begin promulgating a new lethal-injection protocol that will comply with state and federal law (Winchell v. Beard, No. 34-2014-80001968 (Cal. Super. Ct. June 3, 2015)).

A timeline of the lethal-injection protocol flap in California is available on the CDCR website.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: Tom P. Taylor at

Video of the oral argument may be viewed at

Timeline of lethal-injection protocol flap in California is available at