Challenge to Calif. Death Penalty Scheme Fails

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By Lance J. Rogers

Nov. 13 — An argument that California's death-penalty system is so plagued by delay and so randomly imposed that it violates the Eighth Amendment is too novel to be raised on federal habeas corpus review, the U.S. Court of Appeals for the Ninth Circuit ruled Nov. 12 .

In an opinion by Judge Susan P. Graber, the court said many would agree that California's system is dysfunctional and that the delay between sentence and execution is nothing less than “extraordinary.”

However, federal habeas corpus is designed to make sure state convictions comply with federal law that existed at the time of conviction, not to subject final judgments to constant re-evaluation “based upon later emerging legal doctrine,” the court said.

New Protocol Advanced

The decision comes less than a week after California corrections officials unveiled a new single-drug lethal-injection protocol that will replace the three-drug cocktail that was ruled unconstitutional nine years ago.

The new protocol will allow corrections officials to choose from one of four barbiturates: amobarbital, pentobarbital, secobarbital or thiopental.

Public hearings on the new regulations will be held Jan. 22.

California hasn't executed anyone since 2006, when a federal district court ruled that the state's lethal-injection protocol violated the Eighth Amendment because it created an undue and unnecessary risk that an inmate would suffer cruel and unusual pain (Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006)).

Although the California Department of Corrections and Rehabilitation substantially revised its injection protocol in 2008, a state court invalidated the revised procedure on the ground that it violated the state's administrative procedure act. That ruling was upheld on appeal. 

Skeptical Questions

The Ninth Circuit's decision to put the death penalty back in play doesn't come as a complete surprise, given the skepticism the panel showed during oral argument.

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. (97 CrL 688, 9/16/15).

Since 1978, 13 death row inmates in California have been executed, 63 have died of natural causes, 22 have committed suicide, eight have died of other causes—including drug overdose or violence—and one has been executed by another state, according to statistics kept by California prison officials.

Different Type of ‘Arbitrary.'

Lawyers for Ernest DeWayne Jones argued that the long delays between imposition of sentence and execution, resulting from systemic dysfunction in the post-conviction review process, combined with the low probability that an inmate sentenced to death will actually be executed, preclude the death penalty from serving any deterrent or retributive purpose. As a result, they maintained, the imposition of death is unconstitutionally arbitrary.

Under Furman v. Georgia, 408 U.S. 238 (1972), Jones's counsel said, states may not arbitrarily inflict the death penalty.

But the court rejected that arbitrariness test as too broad.

“Although Furman condemned one specific form of arbitrariness related to the death penalty, it does not necessarily follow that Furman dictates the result in all other challenges to the death penalty under the banner of ‘arbitrariness,' ” it said.

Delay Isn't Clear Violation

While Furman addressed arbitrariness at sentencing, Jones is arguing that the state arbitrarily determines when to carry out the sentence because it is difficult, if not impossible, for death row inmates to predict when they will be executed, the court said.

A rule forbidding juries to exercise unfettered discretion in deciding to impose the death sentence is clearly different from a rule prohibiting systemic, post-sentencing delays in the execution of that sentence, it said.

In the 40 years since Furman was decided, no court has invalidated a state's post-sentencing procedures as impermissibly arbitrary, the court noted.

Moreover, there was no clear violation of federal law at the time Jones's sentence became final, 12 years ago, it said.

“In 2003, reasonable jurists could have differed as to whether Furman applied to challenges to the delays caused by a state's post-sentencing procedures,” the court said.

Rawlinson joined Graber's opinion.


Concurring, Judge Paul J. Watford agreed with the result but contended that Jones's petition should have been rebuffed because he had failed to exhaust his state remedies before seeking relief in federal court.

At oral argument, Michael Laurence, of the Habeas Corpus Resource Center in San Francisco, suggested that sending Jones's case back to state court to satisfy the exhaustion issue would be a futile gesture because California authorities have shown no inclination to fix the system and it would just lead to further delay. 

The California Supreme Court would likely take four more years to issue a terse “postcard denial,” and then the case would in all likelihood land back in federal court with little or no guidance on how the state court ruled, he said.

Michael J. Mongan, of the California Department of Justice, San Francisco, argued for the state.

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

To contact the editor responsible for this story: C. Reilly Larson at

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