PENALTY

defendants, between 1988 and 2013. As of this writing there have
been three federal executions; 54 federal court defendants have been
sentenced to death and their appeals or writs are pending.
The movement of states toward repeal is both instructive and hopeful.
Imagine the impact worldwide when California, a state with a population
of over 37 million (greater than that of most countries), repeals
the death penalty and replaces it with life imprisonment without the
possibility of parole.
Or better yet, imagine the impact worldwide if the President of the
United States declared a moratorium on the death penalty. Is this out
of the question? Does the President have too many other pressing
issues on his agenda? Does his previously stated position on the death
penalty rule out the possibility that he would call for a moratorium
in federal cases? Consider what President Obama said in May 2014:
“In the application of the death penalty in this country, we have
seen significant problems — racial bias, uneven application of the
death penalty, you know, situations in which there were individuals
on death row who later on were discovered to have been innocent
because of exculpatory evidence. And all these, I think, do raise significant
questions about how the death penalty is being applied.” 3
That is our opening to seek a dialogue with the President about
declaring a moratorium on the death penalty while his administration
studies and engages in dialogue with citizens on both sides of the
issue—a dialogue that we should be confident will lead not just to a
moratorium on the death penalty but to its replacement with life in
prison without the possibility of parole.
AFTERWORD: HISTORIC RULING
IN CALIFORNIA
State Prison at San Quentin. Federal Judge Cormac Carney concluded
that California’s death penalty system is dysfunctional and results in
an “inordinate and unpredictable period of delay preceding their
actual execution.” He went on to say that “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. . . . Allowing this system
to continue to threaten Mr. Jones with the slight possibility of death,
almost a generation after he was first sentenced, violates the Eighth
Amendment’s prohibition against cruel and unusual punishment.”
Mr. Jones has been on California’s death row since April 1995.
The Jones decision can be appealed to the Federal Court of Appeals
by the California Attorney General. If the appeal is heard and the
decision of the district court is affirmed, the decision would then
apply to the entire state—California’s death penalty law would no
longer exist. The California Attorney General could either accept the
appeals court’s decision or appeal it to the United States Supreme
Court. The court of appeal obviously could also reverse the district
court’s decision. Mr. Jones would then be in the position of appealing
that decision to the United States Supreme Court.
This case is historic because it appears to be the first time in the
nation that a federal court judge has concluded that a specific state’s
death penalty law is unconstitutional because of the state’s dysfunctional
death penalty system. While this decision applies to this single
case alone, judges and prosecutors in California can now expect
the same arguments to be made in any pending death penalty case.
Though judges are not required to follow a ruling by a single court,
this especially well-written, exhaustive and well-documented decision
is likely to persuade many judges to follow its lead and declare
California’s state death penalty law unconstitutional.
On 17 July 2014, as the first edition of this publication was being
produced, a historic federal district court decision was issued in the
case of Ernest Dewayne Jones v. Kevin Chappell, Warden of the California
3 Peter Baker, “Obama orders policy review on executions”, New York Times, 2 May 2014,
available from www.nytimes.com/2014/05/03/us/flawed-oklahoma-execution-deeply-troubling-obama-says.html?_r=0.
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