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9th Cir to Decide If California's Death Penalty Is Constitutional

By Casey C. Sullivan, Esq. on September 01, 2015 | Last updated on March 21, 2019

You can still be sentenced to death in California, but you can't be executed -- not since a surprise ruling last year struck down the state's death penalty program as unconstitutional. The program wasn't struck down because executions are inherently cruel punishment, but because the state was too slow to kill death row prisoners.

That case is now before the Ninth Circuit, which will decide whether the state's sluggish and arbitrary death penalty system is so dysfunctional that it's unconstitutional.

Does the Eighth Amendment Require a Faster Death?

Prisoners sentenced to death in California can expect a long wait before their last meal. As Judge Carney noted in his 2014 ruling striking down the system, more than 40 percent of the state's row inmates have been there for more than 19 years. Exhausting possible state and federal remedies can easily take 25 years or more. The capital punishment system is so full of delay that only 13 inmates have been executed since 1978 -- out of the more than 900 individuals sentenced to death. Once on death row, you're much more likely to die from anything but execution.

According to Carney, that delay is itself unconstitutional. A system that threatens prisoners with "the slight possibility of death, almost a generation after" their sentencing, "violates the Eighth Amendment's prohibition against cruel and unusual punishment," he wrote. The retributive and deterrent factors used to justify capital punishment are completely meaningless by the time the "random few" are actually executed. Judge Carney's ruling was unexpected and a rare win for death penalty opponents.

Will Cal's Death Penalty Survive the Ninth Circuit?

Though California has never been considered as rabidly pro-death penalty as states like Texas, the Golden State's government still strongly denounced Judge Carney's ruling. For one, the state argues, the district court improperly addressed issues that hadn't been raised by the state court system, as they claim is required. Secondly, the state argues, the rarity of executions isn't a bug, it's a feature. The slow moving system isn't random, but purposefully hesitant, ensuring that the condemned can exercise all potential legal solutions before they're killed.

If the Ninth Circuit sides with the lower court, it may find some friends on the Supreme Court. Last June, in their final ruling of the term, the Justices Breyer and Ginsburg announced that they are willing to reexamine whether the death penalty was constitutional in any form. They, however, were very much in the minority.

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