On Aug. 31, the death penalty will go on trial at the Ninth Circuit Court of Appeals. The oral argument stems from a judgment in 2014, in which Federal District Judge Cormac Carney ruled that California’s death penalty system was unconstitutional, reported the Washington Post.
Carney argued that because of the extremely low likelihood of execution and long delays on death row, the system was actually a penalty of life without parole with the remote possibility of death. His ruling declared that execution after such a long delay serves no retributive or deterrent purpose beyond the long prison term, and is therefore arbitrary and unconstitutional (see Jones v. Chappell, 2014).
As Carney wrote in his California decision, no rational jury or legislature would design a system that functions as the system actually works. But, he argued, we must evaluate the system we do have, not the one we might prefer to have.
Nationwide, the “new” death penalty consists of 20 years or more on death row, followed by some probability of execution. The average delay from crime to execution for those executed since 2010 is 16 years across the United States, even longer in California, as the judge noted. Thirty-eight percent of inmates executed nationally since 2010 served more than 20 years; 17 percent served more than 25 years; five inmates were killed after more than 35 years of delay. The vast majority are never executed.
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