« Two (more) op-eds on Hobby Lobby | Main | Kolber on Dichotomies in Law ... And Just Another Few Words on the (False) Dichotomy of Theory and Practice »

Wednesday, July 16, 2014

What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision

The indispensable Doug "not that subway fugitive" Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment's ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven't been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything's possible. I am after all getting older.)

Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won't stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.

Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:

"Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years."

"Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide,
or causes other than execution by the State of California."

"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts."  But of those 49, the "State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time." 

A few points here.

First, what's left unsaid by Judge Carney, so far as I can tell, is whether the state has abandoned efforts to resentence to death the remaining 39, or accepts that 39 out of the 81 people originally sentenced to death should in fact not be sentenced to death.  If the state is committed to resentencing the 39 to the death penalty, then it's not clear that the facts adduced here have much traction; all they show is that the system is hyper vigilant at the post-conviction review stage.  On the flip side, if the state basically concedes that 39 out of the 81 people should not or cannot be resentenced to death, then we have an almost 50% error rate in the initial distribution of the death penalty. As a purely prudential/consequentialist matter, that error rate strikes me as quite worrisome (independent of my constitutional or retributivist concerns). Indeed, unless such error rates were valuable in creating a higher deterrence through random terror effect, which I doubt, I suspect if I were the DP czar, I would be seriously concerned that the death penalty cases are a complete regulatory failure. Perhaps it's time to re-read Robert Morgenthau's famous oped about why prosecutors with resource constraints and a crime-fighting streak should oppose the death penalty

Second, if 81 people have had a decision on the merits and exhausted all judicial review, it does seem a puzzle as to why there's an ostensible delay of YEARS between those decisions and the executions. Maybe the explanation is in the appendix that I didn't see; but in its opinion, the court notes that California hasn't executed anyone since 2006. Are there delays resulting from California's executioners waiting for the clemency process to be exhausted in addition to the post-conviction judicial review? Wouldn't that be worth knowing about?

Third, the defendant, Mr. Jones, and the Court here seem to think that only a random few people are selected for execution. If that were true, I could see why the constitution should step in and eliminate that randomness in distribution.  But I'm not convinced yet that the source of delay is inherently random or arbitrary (terms the court conflates here).  I guess I take issue with the claim that the Court offers: "a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose." I could well imagine that a rational legislature or jury would in fact understand their votes to constitute a view to execute subject to stringent review out of a desire to cause death to the defendant but only as long as and once the process has run out. Flipping it around as the fed Cal court does may seem rhetorically nifty, but it's not exactly a model of intellectual generosity to citizens and officials who disagree in good faith.

Fourth, while I understand and accept the claim advanced that deterrence is undermined by delay, it's not the case that harm prevention generally is necessarily undermined by procedural delay. Confidence in the system's accuracy or fairness in a death penalty tribunal might be thought to bolster compliance--this is the mantra that Bentham(!), Tom Tyler and Paul Robinson have all adopted. Inasmuch as the delays bolster confidence and compliance generally, which I take to be a fragile but possible relationship, then the part of the court's opinion addressing deterrence moves too quickly, in part b/c it makes the same mistake Eighth Amendment caselaw makes too frequently: by quickly conflating deterrence with harm prevention generally.

Fourth, the retribution analysis by the court (p21-22) also moves too quickly. I don't accept as persuasive the invocation of authority (citations to Rehnquist and Powell and Fletcher) as opposed to argument the claim that retribution is undermined by delay attributable to post-conviction review. The court takes that proposition for granted but it again conflates retributive justice with satisfaction of communal preferences for condemnation.  Moreover, it assumes that the wrong against retributive justice ideals associated with executing a few of all those sentenced to death is the same regardless of whether the reason is because of the drag of post-conviction review or because someone is selected for execution based on his race (or, hypothetically, the race of his victim).  But I don't think that's right at all. 

In short, if we accept arguendo the controversial premise that capital punishment is consistent with retributive justice (a premise I reject), it doesn't follow that delay attributable to judicial review of the underlying accuracy or respect for the defendant's constitutional rights is antithetical to retributive justice. Indeed, the respect for accuracy manifested by an exhausting (albeit exasperating) forensic process could reasonably be thought to bolster the retributive value of the execution. 

 I don't want to signal an overly skeptical posture; I'm still unsure about what my views are here. I support striking down the d/p on Eighth Amendment grounds generally but for the reasons I've suggested, I'm less certain this court's arguments are the right arguments to bolster that constitutional claim. Regardless, I hope the dispute has the effect of spurring  proper funding for capital appeals and post-conviction review so the delays are less likely to materialize. [Of course, I agree with Doug Berman's general view that the d/p is a sideshow to the more mundane and pernicious and pervasive problems with noncapital punishment.] That said, the claim that "justice" delayed is no justice at all, and indeed, unconstititional, needs more work -- so it seems to me.  I'm not defending the claim that the delays are worthwhile, but I don't see how this opinion explains adequately how the delays harm the defendant once a) the defendant wants to benefit from the procedural wrangle, and b) the public has an interest in ensuring that justice appears to be done properly, ie, with appropriate judicial or executive clemency review for severe sentences.


Posted by Administrators on July 16, 2014 at 07:16 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink


"While it is widely assumed that delays benefit those confined on death row by prolonging their lives, it should be noted that California inmates with meritorious claims are also denied prompt disposition of those claims. In cases where the judgment of guilt and/or the sentence were vacated between 1987 and 2005, the average delay was 11 years. California death row inmates whose convictions or sentences were vacated by a federal court waited an average of 16.75 years." CA Commission on the Fair Administration of Justice 6/30/2008

Carney's Decision: 748 are currently on Death Row; . . .currently of the 352 inmates without habeas counsel, 159 have been awaiting appointment of such counsel for more than 10 years (with no attorneys in sight to relieve the wait) . . . The State has issued an average of 22.8 death judgments per year compared with only 9.4 annual appointments of habeas counsel over the same period.

Should a prisoner deserve relief, he may well die/or have died waiting for it; witnesses die, memories fade . . .justice delayed.

California's death penalty (per the CSC Chief Justice) is for all intents and purposes,broken. To actually be executed under this system, would be a larger freak happenstance, than getting the death penalty in the first place. Judge Carney's decision supports the Chief Justice's statement and the ineffectiveness and disparity of the actual execution of the sentence in California.

Posted by: Christi | Jul 21, 2014 6:24:56 PM

"My own bias is that it's preferable, e.g., to have one wrongful death penalty than, say, three wrongful life sentences, but I can understand that not everyone would share that intuition."

Some of these "wrongful" life sentences arguably would be those who "deserve" the death penalty but who for whatever reason get a life sentence, including by having their death penalty commuted to one based on some wrong-minded reasoning. But, perhaps this is not included.

Also, if the death penalty is removed, some of the effort placed in that area will be shifted to life imprisonment and other issues. There still will be, e.g., "innocent projects" and the like. I'm unsure if the net math will make 3x a worthy figure, but realize there are various variables, some subjective.

Posted by: Joe | Jul 17, 2014 6:48:03 PM

JHW, the reason for number 1 is due to the delays. there is no reason why a court can not decide a capital conviction and sentence appeal within one year after entry of judgment.

"“Consistency would seem
to demand
that those
who accept
our death penalty juris
prudence as a given also acce
pt the lengthy delay between
sentencing and execution as a nec
ssary consequence.
It is
incongruous to ar
m capital defendants
with an arse
nal of ‘constitutional’ claims with which they may delay
their execu
ions, and simultaneously to co
mplain wh
executions are inevitably delayed”"- Justice Clarence Thomas

Posted by: Michael Ejercito | Jul 17, 2014 11:02:28 AM

Death penalty cases get a lot more scrutiny than life-in-prison cases. A falsely accused person is therefore much better off being sentenced to death (or just tried for a capital crime) than being sentenced to life in prison (or tried for regular first degree murder with no death possibility). So while abolishing the death penalty will prevent the falsely accused from being killed, it will also lead to more wrongful imprisonment. My own bias is that it's preferable, e.g., to have one wrongful death penalty than, say, three wrongful life sentences, but I can understand that not everyone would share that intuition.

Posted by: David Bernstein | Jul 17, 2014 10:45:04 AM

I don't think the issue here is "delay" per se. It's not, in other words, that "20 years of procedural battles followed by execution" is cruel and unusual punishment while execution itself is not. The constitutional problem, instead, arises as a confluence of two factors:

1. In all likelihood, the vast majority of people sentenced to death will not actually be executed (they will die of natural causes first).

2. Who ends up executed, and who instead gets the functional equivalent of a life sentence, has nothing to do with legitimate penological grounds (it's not a question of whose culpability was greater or whose crimes were worse) but instead ends up depending on arbitrary factors like the length of various procedural delays.

Of course, 2. will always be true. On any death penalty scheme, and especially one that involves meaningful review, there will be delays and some people will die of natural causes before they have the chance to be executed. But the addition of 1. makes the scheme much worse. Effectively, someone in California sentenced to death is really getting life in prison... unless he happens to be one of the unlucky ones and actually gets executed instead. That seems to me to plausibly pose constitutional problems.

Posted by: JHW | Jul 17, 2014 10:21:37 AM

With all respect, Prof. Markel, I wonder about your use of the phrase, "error rate in death penalty distributions." Capital cases, like all others, are unlikely to be completely error free, sure. But isn't a phrase like that likely to mislead?

The moral engine of skepticism about the death penalty is the prospect of executing a person who didn't do it, not the prospect of executing someone whose long and elaborate legal proceedings contained "error." Errors are all over the place, but, so far as has been persuasively shown, the country has not executed a factually innocent person for at least 50 years (although a number of claims of white-hot innocence have been made, and debunked, in that time).

For the last 40 of those 50 years, Gallup has found that support for the death penalty has never dropped below 60%. Unless this decided majority of the American people are morally obtuse -- is it your view that they are? -- I don't see how it can be concluded that the death penalty constitutes the abomination of cruel and unusual punishment, or is something modern society simply rejects as a punishment, ever.

As I have seen up close, the academic hothouse is the locus of opposition to capital punishment to a far greater extent than the world beyond. I have to believe this is because academia is given over to ideology impersonating refinement. I think you do a much better job than what I usually see of trying to be detached, but you are to an extent a captive of your environment.

The central problems with the death penalty today are not that we're executing innocent people or picking out defendants for capital charges because they're African-American. The central problems are cost and (as the district court's opinion shows) delay. But neither of those things has very much to do with the factual innocence question that's the central issue, and both are brought about principally by those who oppose capital punishment per se but can't beat it at the ballot box. Thus the strategy is to strangle it to death (as it were) with miles of expensive procedural rope, then turn around and, with a cynicism that would make Richard Nixon blush, exclaim, "Oh, gosh, look how much delay we've got here! Look how the condemned suffers year after year! I guess the death penalty must be unconstitutional."


Bill Otis

Posted by: Bill Otis | Jul 17, 2014 1:31:43 AM

Sara, assuming you're right, that's all the more reason methinks that the delay shouldn't be held against the state.

The more I think about this opinion, the more peculiar and unpersuasive I think it is...

Inasmuch as there is harm to the defendant created by delay, the defendant could simply pretermit the harm by abandoning the appeals. I suppose one could say that if the defendant were innocent, then the harm caused by the procedural delays is the time that would otherwise be available to the D as a free man. But wouldn't the baseline have to be what the speed and procedural safeguards would be if the D were in a noncapital case? Given that the D on Death Row gets "super due process," his post-conviction procedural situ is likely to be much better than the average LWOPer trying to challenge his claims about the underlying conviction.

Posted by: Dan Markel | Jul 16, 2014 11:45:09 PM

Re: why California hasn't executed anyone since 2006 specifically, that is because of ongoing state & federal litigation over the lethal injection protocol, as far as I know.

Posted by: Sara Mayeux | Jul 16, 2014 10:52:57 PM

The comments to this entry are closed.