OC Federal Judge, a Bush Appointee, Declares CA Death Penalty Unconstitutional


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Judge Cormac Carney, 2003 appointee of President George W. Bush, ruled today (warning, 29-page PDF) that California’s death penalty is an unconstitutional violation of the 8th Amendment because the system administering it is dysfunctional and arbitrary.  The office of Attorney General Kamala Harris is reviewing the ruling, which may be appealed to the Ninth Circuit Court of Appeals.

Caryl Chessman

Couldn’t find a photo of the Ernest Dewayne Jones, so here’s a photo of famous executed California Caryl Chessman, adapted from this page: http://latimesblogs.latimes.com/thedailymirror/2007/10/mystery-photo-s.html

NBC San Diego fills in some of the details:

Carney’s ruling stems from a 1995 case of Ernest Dewayne Jones who sued Kevin Chappell, the warden of the California State Prison at San Quentin. Jones was sentenced to death for the 1992 rape and killing of Julia Miller, 10 months after being paroled for a previous rape. Jones remains on Death Row, still awaiting his execution nearly 20 years after his sentence.

Of the 900 people sentenced to death for their crimes since 1978, when the current death penalty system was adopted by California voters, only 13 have been executed so far.

For the random few for whom execution becomes a reality, Carney said they will go on to languish for so long on death row that “their execution will serve no retributive or deterrent purpose and will be arbitrary.”

To exist at all, the death penalty must be justified by at least one legitimate penological purpose, such as the aforementioned retribution or deterrence.  It must also be carried out with respect to constitutional rights including due process and equal protection.  The delays in the current system, largely caused by the latter considerations, mean that it no longer serves a legitimate purpose.  It is, in effect, a crapshoot, where

… arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determines whether an individual will actually be executed.

With the death penalty being promised but not being carried out, Carney wrote that when an individual is condemned to death in California, the “promise made to citizens, jurors, victims and their loved ones and to the hundreds of individuals on death row” becomes “an empty one” and thus lacks “penological purpose.” 

Supporters of the death penalty have argued that we should just loosen the constitutional protections that prevent speedy executions.  The problem is that those protections exist for a reason, as numerous cases of executing or almost executing innocent people attest, and may render capital punishment, even if it’s a good idea, as one that cannot work in practice.


About Greg Diamond

Prolix worker's rights and government accountability attorney. General Counsel of CATER, the Coalition of Anaheim Taxpayers for Economic Responsibility, a non-partisan group of people sick of local corruption. Deposed as Northern Vice Chair of DPOC in April 2014 when his anti-corruption and pro-consumer work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, who then worked with the lawless and power-mad DPOC Chair to eliminate his internal oversight. Runs for office sometimes, so far to offer a challenge to someone nasty who would otherwise have run unopposed. Someday he might pick a fight intending to win it rather than just to dent someone. You'll know it when you see it. None of his pre-putsch writings ever spoke for the Democratic Party at the local, county, state, national, or galactic level. A family member works part-time as a campaign treasurer. He doesn't directly profit from that relatively small compensation and it doesn't affect his coverage. (He does not always favor her clients, though she might hesitate to take one that he hated. He does advise some local campaigns informally and generally without compensation. If that changes, he will declare the interest. He also runs a less frequently published blog called "The Brean," for his chosen hometown, where he is now fighting with its wealthiest and most avaricious citizen-donors. This just seems to be his way.