Patterico's Pontifications


Federal Judge Declares California’s Death Penalty Unconstitutional

Filed under: General — Patterico @ 5:37 pm

The reason? It takes too long and too few people are executed. Therefore, by citing some concurrences from lefty hack Supreme Court justice William Brennan, we can conclude that it violates the 8th Amendment’s ban on cruel and unusual punishment.

A federal judge in Southern California ruled Wednesday that California’s death penalty was unconstitutional.

The “dysfunctional administration of California’s death penalty system,” wrote Judge Cormac J. Carney of United States District Court, has led to “inordinate and unpredictable” delays in the execution of inmates.

The delays, the judge wrote, means that sentences are carried out against only “a trivial few of those sentenced to death.” In essence, he wrote, sentences by juries have been transformed to “life in prison, with the remote possibility of death.”

The ridiculous order can be read here (.pdf). You’ll hear plenty from lefties about how this judge, Cormac Carney, was appointed by George W. Bush — but he is the type of guy who enjoys putting his thumb in prosecutors’ eyes and basking in the resultant praise from defense attorneys. No judicial conservative would have written this opinion. It takes a glory hog, an amateur Anthony Kennedy hoping to Make Big Waves with his Bold and Courageous Decision.

The death penalty has no deterrent effect, the Learned Judge says, because it is so randomly applied. It has no real retributive effect, he says, because it is so rarely applied. The families of victims killed by monsters on Death Row would probably beg to differ — but they don’t have the lifetime appointment to the federal bench, which confers the force of law upon silly pronouncements like those made by Carney today.

The judge puts the blame for the delay squarely on the State of California. In that regard, one interesting aspect of the judge’s ruling is this footnote explaining why we have gone eight years without an execution:

These 17 inmates are awaiting execution because since 2006, federal and state courts have enjoined executions by California. In 2006, the federal district court for the Northern District of California enjoined the State from executing Death Row inmate Michael Morales on grounds that, as administered, the State’s lethal injection protocol “create[d] an undue and unnecessary risk that an inmate will suffer pain so extreme” that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment. See Morales v. Tilton, 465 F. Supp. 2d 972, 974, 976–77 (N.D. Cal. 2006). The State subsequently amended the protocol, but because those amendments were not promulgated in compliance with the State’s Administrative Procedures Act (APA), the Marin County Superior Court enjoined executions under them. See Morales v. Cal. Dep’t of Corr. & Rehab., 168 Cal. App. 4th 729, 732 (2008). In response to the ruling, the State undertook to promulgate a lethal injection protocol through the APA’s rulemaking process. After the regulations went into effect in August 2010, Death Row inmate Mitchell Sims sued to enjoin executions under the amended protocol, again for failure to comply with the APA. The state court agreed, invalidating the regulations for substantial failure to comply with the requirements of the APA, and permanently enjoining executions in California until the State is able to adopt an execution protocol that complies with its own procedural law. See Sims v. Dep’t of Corr. & Rehab., 216 Cal. App. 4th 1059 (2013). California is therefore without any execution protocol by which to execute the 17 Death Row inmates who have been finally denied relief by both the state and federal courts, or to execute any other inmates who may similarly be denied relief in the near future.

This is actually inaccurate; the Morales court did not enjoin the state from executing Morales in the decision reported at 465 F.Supp.2d 972. As I have explained before, Judge Fogel merely threatened to halt executions, but never did. Meanwhile, I guess we are to blame California rather than, say, the Marin County judge who halted executions under the new protocol for reasons such as the failure to adequately summarize two dozen out of almost 30,000 public comments.

The death penalty in California has become a game — a game of delay played by the abolitionist forces. They run around throwing up ridiculous roadblocks and then try to blame the pro-death penalty forces for those very roadblocks.

I assume Judge Cormac Carney understands this. But he is, I believe, more interested in becoming a True Judicial Hero than he is in applying basic common sense. In that regard, he has plenty of company here in California.

I’m not saying California couldn’t do better. The state could provide more funding for lawyers and streamline the process.

But it’s ridiculous to say that Death Row murderers — who want nothing more than to delay their day of reckoning — are being treated unconstitutionally cruelly because . . . they are getting the very delay they so badly seek.

70 Responses to “Federal Judge Declares California’s Death Penalty Unconstitutional”

  1. Absurd.

    Patterico (9c670f)

  2. i don’t think America’s justice system can be trusted anymore with the death penalty

    it’s far far too corrupt to be entrusted with something like that

    happyfeet (8ce051)

  3. the only effective death penalty in this country is an armed citizen confronted by a criminal expecting a victim.

    but don’t take my word for it…

    redc1c4 (abd49e)

  4. I’m not a criminal attorney, nor an expert on constitutional criminal procedure, but if a criminal complains that his endless unsuccessful appeals are holding up an inevitable execution, the proper remedy should be to kill the person in a more timely fashion. I seem to recall that the remedy for a speedy trial violation is to give the accused a trial, not to acquit; why does the same logic not apply here?

    Aside from that defect in reasoning, I’m irate over this. Massachusetts doesn’t have a death penalty, to the great pride of its leftist inhabitants. Oddly enough, when the Tsarnaev brothers blew up a marathon (killing three people, including an eight-year-old), and then killed one cop, almost killed another, and sprayed hundreds of bullets and detonated several pipe bombs around a peaceful suburb, the good citizens of this Commonwealth were screaming for the death penalty. It is only because federal anti-terror statute can be applied that the remaining whack job is eligible for execution (if convicted).

    You can give me all the stats about deterrence you want, but it’s sometimes about deciding that someone is just too much of a homicidal psycho to live, and you don’t want to be in a situation thirty years down the road when some bleeding-heart judge decides that he’s done enough time in jail.

    Sorry, rant over.

    bridget (37b281)

  5. i’ve been saying for years that the problem with the American judicial system was that it used entirely way too many lawyers (no offense to our host %-) and nowhere near enough rope.

    redc1c4 (abd49e)

  6. this is the Baldus study strategy, they can’t at this point, go for a Furman, so they have to attack the implementation of the death penalty, piece meal,

    narciso (24b824)

  7. He’s an idiot. I read though his order once. 1) The Eighth Amendment requires a speedy execution; 2) since the prisoner is more likely to die of old age or disease related to aging than to be executed the ones who are executed are executed arbitrarily and capriciously because it was their bad luck to be young and healthy; and 3) the post-conviction process which causes all this delay is vitally important.

    Just how hard did the California AG try to defend the State’s position, here? Or in the execution protocol cases? (For that matter, how hard did the State try to design a challenge-proof protocol?) It suspicions me mightily that California’s death penalty is a paper tiger by design. It makes good press to have the law, it makes good press to have a prosecutor trying a notorious case, but when it comes to carrying it out everybody in a position to see it through just doesn’t want to do it.

    nk (dbc370)

  8. I assume he will start fast tracking appeals and then denying them promptly in his courtroom.

    JD (bc0658)

  9. We’re in the endgame of the breakdown of constitutional law. Now judges, legislators, and executives barely make a pretense of following procedure. Their actions come close to or do actively mock the system they were sworn to uphold.

    I don’t think it will take long for the last constraints to be swept aside and rule by decree declared, with some forms preserved to provide the illusion of legitimacy.

    Traditional values, such as those found in that old dusty document, have been gleefully rejected in favor of redefined freedom. Welcome to the new age.

    Amphipolis (e01538)

  10. Thats to bad there are a lot of republicans who need to be given the death penalty like cheney and bush

    vota (fef0c5)

  11. I read further into the decision, and I did find the following passages.

    This delay is likely due to the severe shortage of qualified attorneys available to
    accept appointment as counsel on direct appeal….Notably, however, the Commission did not
    find a general dearth of lawyers able to meet these qualifications or willing to take on the
    representation of Death Row inmates. Rather, the Commission found the State’s
    underfunding of its death penalty system to be a key source of the problem. Id. For
    example, the Commission noted that despite the high volume of applicants willing to
    represent Death Row inmates from the security of an agency setting, the Office of the
    State Public Defender’s budget has been cut and its staff reduced.

    Yet as of June 2014, 352 inmates—nearly
    half of Death Row—were without habeas corpus counsel. See Laurence Decl. ¶ 7. And
    that number is up from 291 inmates awaiting appointment of habeas counsel in 2008. See
    Commission Report at 134; see also Laurence Decl. tbl. 1 (showing that in all but one
    year since 1999, the total number of Death Row inmates awaiting the appointment of
    habeas counsel has increased). The growing backlog of appointments can again be traced
    to underfunding issues similar to those on direct appeal.

    After Mr. Jones was sentenced to death in April 1995, he waited approximately
    four years
    before the State appointed counsel to represent him in his direct appeal.

    the big question is: wqho benefits from underfunding the system?

    Michael Ejercito (becea5)

  12. OT, but it does concern a death penalty of sorts.
    With all of the chaos at home and abroad, the largest outbreak ever of Ebola continues in 3 countries in West Africa is virtually unnoticed.
    If anyone is interested, here is a link to Samaritan’s Purse, which has been officially designated by the govt of Liberia to lead the effort to prevent, contain, and treat the disease there:

    For those wishing to do something but not via a Christian organization, there are outbreaks in Sierra Leone and Guinea as well, and I am sure one can find who is working in those areas. (I assume Doctors Without Borders are somewhere, as they have been the #1 org taking on Ebola outbreaks, but they had encountered some threats/violence against them earlier).

    MD in Philly (f9371b)

  13. From redc1c4’s link:
    Josh Horwitz, director of the Coalition to Stop Gun Violence in Washington D.C., insisted citizens with guns don’t deter crime.
    “Our position is, more guns equals more crime,” Horwitz said “These are complicated issues, but the empirical evidence shows the states with the lowest gun ownership and the tightest restrictions have the fewest instances of gun violence.

    From The Detroit News:

    Isn’t that pretty much inaccurate, if not a lie. (At least the second part, I guess he is correct about their position, whether or not it is correct outside of their own thinking).

    So, perhaps Detroit finally hit enough of a low point that some people are willing to resort to common sense about what works, rather than sticking with what is PC.
    Though I guess we will also need to watch how long he keeps his job.

    MD in Philly (f9371b)

  14. Thats to bad there are a lot of republicans who need to be given the death penalty like cheney and bush

    vota (fef0c5) — 7/16/2014 @ 6:50 pm

    So tell me Vota, just why is that? Precisely what crimes- besides being white and male- have they committed deserving of the death penalty? Come on now, sound it out. I want to see charges, and I want to see proof.

    Bill H (f9e4cd)

  15. I want to continue beating up California.

    It seems to me that a private attorney who undertook a death penalty appeal or post-conviction proceedings, whether for pay from the client or pro bono, would be committing malpractice. If he did his job properly, in accordance with the Code, he’d be fast-tracking his client to the needle. It’s much, much better for a guilty client who got a fair trial to have the eight years or so of delays waiting just for the State to appoint a lawyer for him and then have that lawyer get that much more time in continuances because he is “overworked and lacks resources”. The way Caliifornia has set up the system, piss-poor post-sentencing representation is the best thing that can happen to the condemned.

    nk (dbc370)

  16. Perry/vota is a testimonial to the T-4 program.

    nk (dbc370)

  17. Actually, I don’t have a problem with said judge saying we take too long. I think we need to do as Ron White suggested Texas does, and install an express lane. 20-30 years to finally complete your sentence is entirely too long.

    Bill H (f9e4cd)

  18. Don’t tell anybody, but I don’t know that there is a constitutional right to an appeal or collateral relief, except that if you have it for one you have to have it for everybody. How about a system where you get a post trial motion to be ruled on by the trial judge within thirty days of entry of judgment and then it’s off to the pokie or the gurney. No more “appeals”. Zero, zip, zilch, nada unless it’s a reprieve or commutation from the governor. That’s how they used to do it. But remember, it’s got to be for everybody.

    nk (dbc370)

  19. ao in Carney’s mind, doesn’t that name just have bad connotations, the fact that there have been few executions, is the reason why there should be none, that’s perilously close to that line about an murderer of his parents, pleading mercy for the loss of his parents, (ie; the idiot jurors in the Menendez jury)

    narciso (24b824)

  20. narciso,

    Yes, that is an excellent analogy.

    Patterico (9c670f)

  21. Hey, Art Carney was a great comedian!

    nk (dbc370)

  22. A string of poloponies…

    Gazzer (7c3874)

  23. I think ingestion of lead-based paint chips might explain the disconnect from reality and low double-digit IQs exhibited by votaperry and like-minded denizens of the fever swamp.

    Colonel Haiku (2601c0)

  24. You’ll hear plenty from lefties about how this judge, Cormac Carney, was appointed by George W. Bush

    I recall right after the judge overseeing Proposition 8 handed down his ruling against it, he was characterized in the media as a Republican. A quick review of his political sentiments dating back only about 20 years revealed his opinion that if the city of San Francisco were to enact strict anti-gun laws, they could easily be deemed as constitutional. Of course, the fact the guy was also gay made it a given that regardless of his party affiliation, he was of the left. So I have a hunch that Carney probably got in under the ideological wire, doing a watusi to the “compassionate conservative” bar set by George W Bush.

    A few decades ago, if not more recently, the prevailing attitude of many in the DC party circuit was that when it came to the appointment of certainly Supreme Court justices, it was improper or rude for the elite doing the screening of such nominees to delve into their philosophy or ideology.

    Pffft to that.

    Mark (2a5744)

  25. I think the line is about a murderer killing his parents and then throwing himself on the mercy of the court as an orphan.

    Patterico (9c670f)

  26. I just want to have this right. A judge said that capital punishment is not Constitutional because it does not quickly happen?

    When the judiciary becomes a farce, then our whole system of laws is a farce.

    Ag80 (eb6ffa)

  27. Bush, Shmush. There’s Senatorial privilege for District Court judges. Any appointment by Bush had to satisfy both Boxer and Feinstein or either could have tabled it, never letting it come to a vote.

    nk (dbc370)

  28. I just want to have this right. A judge said that capital punishment is not Constitutional because it does not quickly happen?

    When the judiciary becomes a farce, then our whole system of laws is a farce.

    Pretty much, yes.

    Patterico (9c670f)

  29. So, perhaps Detroit finally hit enough of a low point that some people are willing to resort to common sense

    If correct, that may be a sign that hell has frozen over and the moon is made of green cheese. But I figure if over 50 years of insanity haven’t triggered even a glint of common sense, then there’s no reason to believe anything else will do the trick now or 50 years from today.

    Meanwhile, a similar ongoing debacle is represented by the country of Mexico, whose counterpart to the US Supreme Court ruled several years ago that not only was capital punishment illegal, but so was life in prison without the possibility of parole. And, as they say, the rest is history.

    Places like Detroit and Mexico, or the environs of the judiciary in California, are daily reminders that no matter how bad things are today, they can easily get worse in the future.

    Mark (2a5744)

  30. Pammy Jo Biondi and Wayne Nifong and their ilk should not be in the business of making life and death decisions

    this is America not a country with a for reals system of justice

    your national attorney general is an thoroughly corrupt and virulent fascist with an abiding hatred of white men for goodness sake

    the conservative thing to do here is to limit the powers of government

    especially in California, where the hatred of freedom is far more advanced than in the rest of this benighted little country

    happyfeet (8ce051)

  31. is *a* thoroughly corrupt and virulent fascist with an abiding hatred of white men I mean

    happyfeet (8ce051)

  32. oops also I meant Mike Nifong

    i’m scratching my head why I said Wayne


    cause of the Duke Duke thing this week

    happyfeet (8ce051)

  33. Wow, just, wow.

    The stupid, it burns…

    Jeff Lebowski (5e0c1f)

  34. But remember, it’s got to be for everybody.

    nk (dbc370) — 7/16/2014 @ 7:15 pm

    I sorta like that. “You have one shot. Your lawyer had better know how to write.”

    I think ingestion of lead-based paint chips might explain the disconnect from reality and low double-digit IQs exhibited by votaperry and like-minded denizens of the fever swamp.

    Colonel Haiku (2601c0) — 7/16/2014 @ 7:49 pm

    I’m not overly worried, Colonel. Scum like Vota haven’t the nads to stand up and actually say what they mean. People like Vota will continue to work the edges, say meaningless crap, and act the coward when they get called out.

    Bill H (f9e4cd)

  35. no Mr. Lebowski

    if the IRS can politically target people than prosecutors can do it times 100

    and there’s ample evidence that they have done so

    you americans have yet to come to terms with what an abysmally corrupt and appallingly suck-ass little country you are

    your institutions of justice have the moral authority of a dog turd

    a fascist dog turd

    which means none of you losers should be making life and death decisions

    happyfeet (8ce051)

  36. So, by extension, when a major party that controls the government at a certain time, decides that the borders that protect said country no longer matter, how exactly does that country continue to exist?

    In other words, we should sit back and enjoy the ride when a free country’s judiciary, congress and executive branch simply decide that laws, borders and its people are nothing more than political chattel to sway in the advancement of a rich elite of confused socialists?

    Count me out.

    Ag80 (eb6ffa)

  37. Your outrage, to the extent it is directed at this judge, is misplaced, Patrick.

    The practices of the State of California, when it comes to the death penalty, are and have long been a travesty.

    The judicial branch, I will (I think) agree with you, is not the proper branch of democratic government to redress this problem. A federal court declaration that California is, and has been for decades, propagating a massive and unconscionable fraud — upon its own public (and that of the United States and the world) — would be correct, but unwarranted. Unwarranted not because of lack of good cause. But unwarranted because that’s not the proper forum.

    The fault lies squarely upon the majority, or at least working pluralities, of Californians who’ve turned out to vote in the several elections. They’re getting the government they deserve. It includes one which has a decades-long running joke when it comes to enforcement of the death penalty.

    I have long, long thought — and I think probably have mentioned in comments here — that California, and other states like it that merely pretend to have a death penalty, are subject to challenge under still-never-overruled precedent from the 1972 series of SCOTUS death penalty cases on grounds that anyone who actually is executed there is the victim not of state-sanctioned and -planned retribution, but random chance.

    Unless and until you get a real death penalty in California, it’s probably better than you don’t pretend to have one. You’re doing no one any good by so pretending.

    But it’s not a federal judge’s place to tell Californians that, not by this type of ruling.

    Beldar (fa637a)

  38. *then* prosecutors i mean

    i’m commenting and doing me up some mooshy peas at the same time

    happyfeet (8ce051)

  39. How about we make it so a 9th circuit judge is executed every year that no condemned murderer is?

    Kevin M (b357ee)

  40. “Just how hard did the California AG try to defend the State’s position, here?”

    She is one of the scariest residents of this state and probably the next governor.

    Mike K (b5c01a)

  41. Just how hard did the California AG try to defend the State’s position, here?

    I will take bets that neither Harris nor Brown appeal this decision. More outfall from the execrable Hollingsworth v. Perry punt.

    Kevin M (b357ee)

  42. Beldar,

    The voters of California are not my favorite people. That said? Fogel’s decisions were crap. Carney’s decision is crap. We have a death penalty on the books, an attempt to eliminate it was voted down, and the judicial obstructions are unconscionable. My outrage feels very properly directed.

    Patterico (9c670f)

  43. How about we make it so a 9th circuit judge is executed every year that no condemned murderer is?

    I vote for that, if I get to choose the order.

    Patterico (9c670f)

  44. The problem, Beldar, is the majority has no rule in the judiciary. If we give that up through indifference through the force of the electorate rather than the law, then we have given up.

    It is up to the electorate to pass law through representation.

    The judiciary should rule only through the lens of the law based on the Constitution, no matter of political affiliation. The people reserve the right to vote for the people to represent them. The judiciary has the right to strike laws that violate the Constitution. Conflating the political with rule of law only leads to chaos.

    Ag80 (eb6ffa)

  45. The death sentence was affirmed by the California Supreme Court on March 17, 2003. What has the case been doing for the past 11 years? Here is the opinion. Note that he raped and murdered his girlfriend’s mother as described in the opinion: “Two knives were sticking out of Mrs. Miller’s neck. She also had 14 stab wounds in her abdomen and one in her vagina, but the fatal stab wound, which penetrated to the spine, was the one in the middle of her chest.” This happened after he served a 12 year sentence for rape and a long list of assault crimes. Read the Supreme Court opinion that is from 2003.

    AZ Bob (34bb80)

  46. Ironically, Jones got his appeal heard faster than most. Judge Carney acknowledged:

    In total, Mr. Jones spent about eight years litigating his direct appeal before the California Supreme Court—considerably less time than the 12 to 14 years spent by most individuals on California’s Death Row.

    AZ Bob (34bb80)

  47. And the case has been before Judge Carney since 2010 as he wrote:

    Finally, on March 10, 2010, Mr. Jones filed his petition for federal habeas relief.
    See Dkt. No. 26. Briefing on the petition was completed in January 2014, and the Court
    is reviewing his claims. On April 28, 2014, Mr. Jones amended Claim 27 of his petition
    to broaden the nature of his claim of unconstitutional delay in California’s administration
    of its death penalty system.

    AZ Bob (34bb80)

  48. I wonder how many extensions the court granted during briefing?

    AZ Bob (34bb80)

  49. When the state’s top judicial officer will not fulfill her oath of office, why should a judge pick up the slack for her? Truly I say to you, it is easier for a rich man to enter the Kingdom of Heaven than it is for Kamala Harris to enter a needle into a vein.

    nk (dbc370)

  50. *top judicial officer*? Top justice official better?

    nk (dbc370)

  51. all you pickles errybody before you go sleep sleep sleep perchance to dream dream dream

    here’s how to make perfect mooshy peas (as mentioned above)




    ok here we go

    #1 used canned peas (two cans) – it’s just easier than using frozen, and easier is better

    #2 get out your blender – dump one can of peas in and then drain the other can and dump that in too

    #3 pulse pulse pulse – if you need more water add some – or a little skim milk is fine too

    #4 do the mortar and pestle thing with your rosemary

    #5 add olive oil to a skillet – maybe a tablespoon or so and throw in the rosemary and let it sort of simmersizzle til your kitchen smells really quite nice and rather british

    #6 while #5 is going on use one of those rubber spatula thingies to get all the blendered up peas into a bowl

    #7 transfer the blendered up peas from the bowl into the skillet

    #8 what I do is add garlic powder, a pat of butter, and some salt – but do whatever you like here (there’s interesting things what you can do with cheese if you’ve a mind to)

    #9 stir stir stir

    #10 stir stir stir

    #11 when you’re over the whole stirring thing stop and turn off your burner and let your mooshy peas sit for awhile

    #12 they’re super good with chicken but I like them all by themselves over white rice too

    happyfeet (8ce051)

  52. @14 bush and cheney both guilty of treason a capital crime for lying about nuclear weapons in iraq alowing 9-11 to happen because he needed a second pearl harbor to get people to forget supreme court republicans stole 2000 election for him.

    vota (fef0c5)

  53. Beldar @37

    Unless and until you get a real death penalty in California, it’s probably better than you don’t pretend to have one. You’re doing no one any good by so pretending.

    They get tougher de facto sentences – their confinement is more restrictive, and they are kept away from the general prison population – their release date, if any, is later – and, for prosecutors – it is factor in gettinga pplea bargain. And defendants benefit by haviing their cases examined more closely, so a miscarriage of justice is more likely to be reversed.

    Sammy Finkelman (ff268d)

  54. Patrick, I salute, and have boundless respect for, the prosecutors and other law enforcement authorities who do their very best to enforce and apply the death penalty laws that California’s voters have, through their electoral decisions, insisted on retaining despite fierce liberal opposition over decades.

    But having failed to repeal the death penalty law, California foes of capital punishment have instead simply stalled it nearly (not quite, but nearly) into a state of practical irrelevancy. Some of those foes have been in the legislature, more of them in the state executive and administrative (including legal) bureaucracies, and of course many of them have been before or on the state and federal courts, especially the Ninth Circuit.

    There was only one part of the plurality decision in 1972’s Furman v. Georgia with which I agreed at the time and still agree today: A capital punishment structure in which many are convicted and sentenced to death, but almost no one is ever actually executed, means that death is actually meted out randomly and therefore arbitrarily — rather than fairly and consistently to those who are, by definition and by operation of the incredibly stringent legal processes we given to capital defendants, the “worst of the worst.” And as you know, of course, but some of your readers may not, it was the nationwide rewriting of capital punishment laws after 1972 in a manner designed to eliminate that arbitrariness of enforcement which led to the 1976 SCOTUS ruling in Gregg v. Georgia, upon which all modern death penalty law is based.

    It is as important that the law actually be enforced, and enforced consistently, as that the law be “on the books” in the first place. And despite the very best, talented, and good-faith efforts of some prosecutors and appellate lawyers representing the People of the State of California, no one can dispute that the libs’ delay and entangle strategy has worked and is still working in California. That’s the real world. And in that real world, it has turned out that California’s death penalty statute — not as written, but as actually and consistently applied now for decades — is being enforced either not at all, or else very arbitrarily.

    Mr. Finkelman, respectfully, it would be a very stupid, probably constitutionally ineffective, capital murder defense lawyer who couldn’t figure out for himself and his client the difference between a capital charge in, say, Houston, versus one in San Francisco. Yes, every potential enhancement of sentence can affect plea bargain negotiations, even the mostly theoretical enhancements. And my own support for capital punishment is based upon the justness of retribution, not on anticipated deterrence of future criminals. But even retributionists like me would prefer, all things considered, for the system to be demonstrated to work as written on the statute books, all the way through execution of the convicted capital murderer who’s had the benefit of all due legal process.

    Beldar (fa637a)

  55. I find it truly sad that we are constantly being abused in this manner. Judges cause delay after delay by accepting appeals to sentencing, costing millions of dollars. The average wait to execute a convicted murderer is around 25 years or so. Now we find that the delay that judges cause by constant appeals is, in fact, the reason why we can’t execute these murderers. We hurt them when we kill them. Oh, they may have tortured their victims for weeks before finally putting them out of their misery, but we mustn’t even cause the pain of a hang nail upon them. The constitution says ‘cruel and unusual.’ It is not cruel or unusual. The death penalty is not cruel, and the fact that judges have forced it to be unusual doesn’t count. Execute criminals by firing squad. Look back at the early American system of stocks. People were bound in stocks for days at a time, but it was constitutionally legal, since, even though it was very cruel, it was not unusual.

    TimothyJ (a33d78)

  56. Who are all these pussies whining about lethal injections?

    Gary Gilmore

    daleyrocks (bf33e9)

  57. Here’s my criticism of the decision, the reason why I wrote above that “it’s not a federal judge’s place to tell Californians that” they ought quit pretending to have an effective capital punishment system:

    As a reasonably knowledgeable observer from another state, as a matter of both objective fact and policy judgment, I’m thoroughly satisfied that judged overall, the California capital punishment system is thoroughly broken, so much so that any actual execution conducted pursuant to it would be arbitrary. When and if the libs’ delay and entangle strategy finally fails as to any particular convicted defendant sentenced to death, that guy wouldn’t be executed because he was the worst of the worst, but because he drew the unlucky bean.

    But I’m deeply troubled when courts — trial or appellate, state or federal — start making those sort of factual and policy judgments of their own, and then use that as a basis for drawing a constitutional conclusion.

    That is what happened in Brown v. Board, for example: The SCOTUS said to the Board, in effect, “You say this is equal even though it’s separate, and you’ve written your laws to make it seem that way, but it’s a transparent fiction and we all just know better, so we’re going to interpret the Constitution in a way that makes you change course.”

    A decision like this puts the federal courts in the position of assessing what’s beneath the surface of the laws as written. This kind of ruling departs from an analysis of the facts and justice of a particular capital defendants’ case, and instead shifts the focus to the State’s entire capital justice system. It’s the slipperiest of slopes. As a judicial conservative I think it ought almost never happen.

    In individual cases, and (I expect) especially at the trial court level, there are prosecutors, judges, juries, and yes, even defense lawyers, all working hard and doing their genuine best to make California’s capital justice system work as it’s designed on the statute books. This sort of decision must surely strike many of them as “crap” because it seems to treat their efforts as being meaningless, as being part of an elaborate fiction which has become an obvious joke to those outside of it. Working within it, they certainly don’t think it’s a fiction or a joke. I salute them for their dedication and integrity, and sympathize with their frustrations (in multiple directions).

    But we’re well down the road, for many decades now, with federal courts interpreting the Constitution to treat death penalty cases differently from all others. If we’re doing that, and if we’re putting federal courts into the position where they’re supposed to assess the “arbitrariness” of particular executions, then at some point they do have to say, “Sorry, despite the efforts of many components within the system, the system itself isn’t working, as conclusively demonstrated by the fact that no one in the most populous state in the nation is actually ever being executed.”

    Beldar (fa637a)

  58. Well done Beldar.

    daleyrocks (bf33e9)

  59. Second that, well said Beldar!

    Colonel Haiku (5348bf)

  60. California will never make its death penalty “work”. It’s all fake, like a Hollywood set. Glitter over papier mache, smoke and mirrors, and trick photography. I’m glad the judge aired that. But that’s the only part of his order I agree with. His “therefores” are irrational.

    It’s not just California. There have always been enough opponents of the death penalty nationwide that juries in murder cases have to be “death qualified” just for the verdict on guilt or innocence. People will let a murderer go free rather than see him executed.

    nk (dbc370)

  61. “People will let a murderer go free rather than see him executed.”

    nk – What are the chances of passing a law requiring libs to take murderers and tubercular illegal immigrants into their homes to experience the policies they support?

    daleyrocks (bf33e9)

  62. daley, that sounds like a campaign promise to run on.
    Not only make Congress live by the laws they make themselves (e.g. ObamaCare), but them those who vote for a policy be the first to have it implemented in their lives.
    If you want illegal immigrants, fine, if we can’t put them in your house, we will at least make them your neighbors.

    I bet you could get a lot of people elected on that, if you could make the campaign about that and not 1,000 other things that get brought up, more than 50% being lies.

    MD in Philly (f9371b)

  63. To combat AGW, we must prevent these inmates from contributing additional CO2 to the atmosphere.

    askeptic (efcf22)

  64. The appellate process needs hard dead-lines to observe, so that these appeals cannot stretch on for decades: If you can’t come to a reasoned decision before the deadline, the sentence is upheld.

    askeptic (efcf22)

  65. MD in Philly – Thanks. NO MORE NIMBY’s!!!!!!!!

    daleyrocks (bf33e9)

  66. I should type in the descriptions of the executions in the Judge Dee mysteries (set in ~700 A.D.) Better idea, cite Wikipedia for one:

    The West was equally horrific.

    htom (412a17)

  67. @14 bush and cheney both guilty of treason a capital crime for lying about nuclear weapons in iraq alowing 9-11 to happen because he needed a second pearl harbor to get people to forget supreme court republicans stole 2000 election for him.

    vota (fef0c5) — 7/17/2014 @ 1:14 am

    My God, you actually answered. Good on you Vota. Your answer makes absolutely no sense whatsoever, but yes, you answered. A Gold Star to you for that. Let’s see if I can parse out what you mean. This might take a minute…

    1)Treason means adhering to your nation’s enemies and materially assisting them. Can you prove adherence? Can you prove material assistance? You have a pretty high bar, Vota. Minds far sharper than yours have tried this route and failed.
    2)Lying is not evidence in and of itself of treason. If it were, Preznit 404 would have been swinging like a wind chime from a tree quite awhile ago.
    3)We knew about Iraqi intentions for some time. Can you say STUXNET? Naaaah, don’t bother. I don’t want you to sprain something.
    4)Allowed 9/11 to happen. You don’t happen to be one of those crazies that think the event was nothing but a controlled demolition, and could prove it with a cinder block and a bit of chicken wire, do you?
    5)Which brings us to Pearl Harbor. Yes, I know, you were feeling hip when you didn’t bother to capitalize Pearl Harbor. In any event, copy and paste into a search engine, then go look at what you find. By Aug 1945, the Japanese government recognized that Pearl Harbor might have been a mistake.
    6)And we get to that old chestnut, the Supreme Court stole the election for Bush. How, exactly? Remember to show your work.

    That is one fevered bunch of crap for such a short post, hon. I’d ask you to take up something soothing to ease your run-amok mind, but anything I can think of has an element of danger for someone who is developmentally a 5 year old. Perhaps a game of Jarts. Couldn’t hurt.

    Bill H (f9e4cd)

  68. htom (412a17) — 7/17/2014 @ 5:35 pm

    Well, our traditions are different from China’s. This is a story from Indian Territory, now Oklahoma, which you guys probably are more familiar with from the movies “Hang Them High” and “True Grit”. Supposedly true:

    Such was the case in a shooting in a small town in the territory, which in later years was named Vinita. The trouble started over a card game in the back room of a store on Main Street. One of the young men playing cards did not like the way the dealer was shuffling the cards and told him so. In a fit of rage, the dealer pulled his gun and shot the young man, who did not die at once. The wounded man was rushed to his cabin and put to bed. Upon hearing of the shooting, the wounded man’s brother promptly buckled on his guns, went out and arrested the would-be assassin, brought him back to the cabin, chained him to the dying man’s bed, and forced him to share in his death watch. In the gray dawn death released the victim. The murderer was at once taken outside and shot down on the street for his crime.

    Williams, Lon (2014-05-12). Mud In His Honor’s Eye [Illustrated] (Judge Steele)

    nk (dbc370)

  69. The judge has a very good point. In fact it’s somewhat uncanny, because I’ve been making the very same points for about 20 years now, and now I read that a judge has independently reached the same conclusion.

    In some Asian countries (I think India and Indonesia, but also some others, perhaps Japan), once someone is sentenced to death they remain on death row indefinitely, sometimes for decades, until someone decides to execute them. Every morning they wake up not knowing whether this will be their last day. That has always horrified me, and I think it’s cruel and unusual. Once you’ve decided that a person needs execution, execute him! Don’t leave him in this horrible limbo.

    But having so wisely come to this conclusion, it seems to me that the obvious remedy the judge should have imposed would be to order the state to hurry up its execution schedule. In particular, the judge should have graned the appellant who brought the case immediate relief from his unconscionable misery, by ordering his immediate execution. I don’t get how the fact that it’s been unreasonably delayed so long should mean it should now be canceled altogether.

    Milhouse (b95258)

  70. A decision like this puts the federal courts in the position of assessing what’s beneath the surface of the laws as written. This kind of ruling departs from an analysis of the facts and justice of a particular capital defendants’ case, and instead shifts the focus to the State’s entire capital justice system. It’s the slipperiest of slopes. As a judicial conservative I think it ought almost never happen.


    Milhouse (b95258)

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