The death penalty is now unconstitutional in Washington state. California should be next

The California Supreme Court should follow the lead of the Washington state Supreme Court, which on Oct. 11 declared that state’s death penalty to violate the state constitution “because it is imposed in an arbitrary and racially biased manner.”

California’s death penalty suffers the same flaws and likewise should be struck down.

In its carefully reasoned opinion, the Washington Supreme Court explained that the “use of the death penalty is unequally applied – sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant.”

The same could be equally said about the death penalty in California. In fact, in 2014, federal Judge Cormac Carney declared the state’s death penalty unconstitutional because of the very arbitrary way in which it is administered. The U.S. Court of Appeals for the Ninth Circuit overturned Carney’s ruling on procedural grounds, but never questioned his reasoning about the death penalty.


Carney’s analysis of the death penalty in California was stunningly similar to that of the Washington high court.

“Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes,” he explained. “Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.

“As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” the judge added.

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Erwin Chemerinsky

Carney’s facts are unassailable. Countless factors – the process of direct review by the California Supreme Court, the lack of qualified attorneys to handle death penalty cases, the need for multiple levels of review – contribute to long delays and unpredictability in carrying out death sentences. The average delay between sentencing and execution in California is 25 years. In the case before Carney, the defendant was sentenced to death in 1995 and there are still appellate proceedings in his federal case.

Nor is there any fix for this.

Short-circuiting appeals or proceeding without competent counsel increases the risk of executing innocent people, or imposing the death penalty when there has been a serious constitutional violation. The U.S. Supreme Court long has recognized that arbitrary punishments violate the Eighth Amendment. Carney’s opinion shows, as many judges and law professors have concluded, that California death penalty system is irreparably broken.

In 2016, California voters approved Proposition 66 to speed up the death penalty by requiring that all state appeals be completed within five years. No one believes this is possible given the complexity of the cases and the lack of qualified lawyers to handle them. In 2017, the California Supreme Court upheld this initiative by saying that despite the mandatory language of the initiative, it should be regarded as only advisory. Proposition 66 does not deal with any of the reasons why there are inevitable delays and does nothing to address the arbitrary imposition of the death penalty.

There is no doubt that in California, as in Washington State and every other state with capital punishment, the death penalty is imposed in a racially discriminatory manner. Of the 743 people on California’s death row, two-thirds are individuals of color. Careful studies have shown that in California, as elsewhere, a jury is far more likely to impose a death sentence when the victim is white compared to when the victim is African American or Latino.

In the past 15 years, seven states – Connecticut, Delaware, Illinois, Maryland, New Jersey, New Mexico and New York – have abandoned capital punishment through court order or legislative act. Three – Colorado, Oregon and Pennsylvania – have adopted moratoriums.

Gov. Jerry Brown should impose such a moratorium before leaving office.

And California Supreme Court justices should show the same fidelity to constitutional principles and judicial courage as the Washington Supreme Court and declare the state’s death penalty to be unconstitutional.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.


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