Yesterday, the United States Court of Appeals for the Ninth Circuit heard oral arguments in Jones v. Davis, which is an appeal from a 2014 district court decision holding that California’s death penalty is unconstitutional because of excessive delays in carrying out death sentences. I have not heard reports on the argument yet, but I wanted to flag the case for interested readers. Commentary is here and here and here (C&C has lots more on its site, too). I’ll update this post later if I see anything worth adding.
I note a special interest in this case because I have written about the district court decision and the underlying issue (my paper draft is here, but is currently being edited and the final version will be published soon). I have argued that federal courts need to more carefully consider whether the non-retroactivity rule of Teague v. Lane bars federal habeas relief for Eighth Amendment challenges based on long delays in carrying out a death sentence. Contrary to Judge Carney’s decision last year, I argue that Jones is asking for a new rule; the real question is whether the rule is substantive or procedural. But even assuming that Teague is no bar, I have always found this kind of claim very odd and unworthy of relief on the merits. First, many delays are the product of trying to get it right, which is to the inmate’s benefit. He cannot repeatedly avail himself of the substantial processes for reviewing his conviction and sentence, and then complain about the processes taking time. Second, the prisoner is claiming that his death sentence is invalid because he was not executed sooner, thus forcing him to endure what is tantamount to life in prison despite an expectation of death. So, what’s his remedy? Does he get a new sentencing, with the death penalty on the table, or does his sentence default to life? And if it defaults to life, isn’t that what he was complaining about in the first place?
There are a hundred reasons to reject these kinds of claims, whether on threshold procedural grounds or on the merits. As the linked commentary suggests, some have speculated that the Supreme Court will take up the issue if the 9th Circuit affirms. Part of me wishes the Supreme Court would put an end to this issue once and for all; another part of me hopes that it never gets that far. But the underlying lesson for the government is this: if you don’t have any interest in carrying out death sentences, then get rid of the death penalty; but if you want a death penalty, then you must have the will to carry out executions.