A federal appellate panel will begin to determine whether California's "dysfunctional" death penalty system is unconstitutional, reported The National Law Journal.
The "dysfunctional" label was imposed July 16, 2014, by U.S. District Judge Cormac Carney of Orange County, who ruled in Jones v. Davis that California's death penalty violates the Eighth Amendment ban on cruel and unusual punishment. The state system, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.
The district court grounded its ruling in the Supreme Court's 1972 unsigned decision in Furman v. Georgia, in which it confronted systemic challenges to Georgia's and Texas' imposition and carrying out of the death penalty and struck down the punishment under the Eighth Amendment.
Furman was concerned with arbitrariness in imposing the death penalty at the sentencing stage.
In a concurring opinion, Justice Byron White wrote: "But when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution" or "society's need for specific deterrence" would be satisfied.
In the Jones case, Carney found similar arbitrariness in California's system, not at the front end when the sentence is imposed but at the back end when it is to be carried out. The system's dysfunction, he said, is evidenced by extraordinary delay and infrequency of executions.
He wrote that since 1978 when the death penalty was adopted by California voters, more than 900 people have been sentenced to death. Of that number, he said, only 13 have been executed.
The delays after sentencing exceed 25 years on average, he said, and are not the result of inmates' tactics, except perhaps in isolated cases. Instead, the reasons include lack of appointed counsel, underfunding of state habeas review, and failure to ensure full and fair review of constitutional challenges. The national average of time to execution was an estimated 12.5 years between 2000 and 2012. In 2012, the delay increased to 15.8 years.
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Michael Thomas Gargiulo, Pretrial Hearing 44
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