California Not Executing Enough People, Says Federal Judge

The most novel argument yet against capital punishment.


The US Supreme Court ruled the death penalty unconstitutional in 1972, only to revive it in 1976 after states corrected key issues. Since then, a lot of novel arguments have been advanced as to how the practice enshrined in the 6th and 14th Amendment violates the 8th. But here’s one you probably didn’t see coming.

Adam Serwer for MSNBC (“California judge strikes down death penalty“):

A federal judge in California has ruled that the state’s death penalty is unconstitutional.

“[F]or 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,” wrote Federal Judge Cormac J. Carney of death row inmates in California. “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 case involves a California death row inmate, Ernest Dewayne Jones, who was sentenced to death for raping and killing his girlfriend’s mother in 1995. Jones and nearly half of the 750 inmates on death row in California have been awaiting execution for more than 19 years, only 13 of the 900 inmates sentenced to death since 1978 have been put to death by the state. Since 1972, the Supreme Court has repeatedly upheld the constitutionality of the death penalty, but it has occasionally ruled that the death penalty can violate the Eighth Amendment’s prohibition on cruel and unusual punishment depending on how it is applied. The high court has also narrowed its use, forbidding it in the case of minors or individuals convicted of crimes other than murder.

Carney’s determination that the death penalty in California is unconstitutional as applied is based on the often interminable delay between sentencing and execution. As a result, Carney concludes, the system does not serve society’s interest in deterring crime or seeing it properly punished.

Carney, interestingly, is an early appointee of George W. Bush. Apparently, he’s a compassionate conservative. Essentially, he’s arguing that California’s death penalty violates the 8th Amendment’s prohibition on “cruel and unusual punishment” not because it’s cruel but because it’s unusual. So, California could correct this problem but getting on with executing more people at an expedited pace. Which would almost certainly increase the odds of killing people innocent of the crime for which they were convicted.

While that outcome would be perverse, I’ve long thought that the absurdly long period between initial sentencing and carrying out execution is in fact a problem. As Carney puts it,

When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.

But for too long now, the promise has been an empty one.

Aside from substantially watering down whatever solace “an eye for an eye” provides the families, the long delay actually serves to deny them closure. And, presumably, “kill someone and you may fry—19 years from now, if you’re one of the 1.44 percent of those sentenced to death we actually execute”—is a rather ineffective deterrent for the would-be murderer.

It’s likely that this ruling will stand, in that California is unlikely to challenge it while Jerry Brown is governor. His veto of the bill reinstating capital punishment was overriden in his first go-round as governor from 1975 to 1983 and he’s been trying to end the practice ever since. I don’t think he would have predicted the reasoning that achieved that end.

via Caitlin Fitz Gerald

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. ernieyeball says:

    “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.”

    I don’t see any evidence that hanging the convicted at the next sunrise after the sentence is pronounced will serve any retributave or deterrent purpose.

  2. gVOR08 says:

    Unexpected. But logical.

  3. Gustopher says:

    @ernieyeball: How can we even measure the deterrent effect of the death penalty? We have different laws in different places, but we have no good, solid control groups.

    Texas kills people at the drop of a hat, but has a fairly high murder rate — is the death penalty preventing even more murders, or has it cheapened human life to encourage murders, or does it have no effect?

    I’d really like to see a 20-30 year study, where we pursued the death penalty only against those with even social security numbers (or odd, don’t care, pick one but be consistent and make sure everyone knows which group they are in), so we would have some actual, well-structured, meaningful data on this.

  4. Hans says:

    Given the fact that researchers like Van Den Haag have concluded each execution deters multiple murders, saving lives; and death row inmates fight tooth and nail to avoid the death penalty, it would seem obvious that the death penalty indeed serves a valid, legitimate retributive and deterrent purpose.
    (I am a former federal district court clerk who worked in California).

    Virginia, which has the death penalty, has a lower murder rate than neighboring Maryland, which has basically stopped carrying out the death penalty. (On the other hand, Virginia also has a lower crime rate across the board, which has more to do with the lack of parole and longer prison sentences in Virginia than it does the death penalty). For example, adjacent Fairfax County and Montgomery County once had similar crime rates; now, they don’t.

    The Supreme Court would not buy this argument against the death penalty (although a minority of the justices would), but California’s attorney general, who opposes the death penalty may not even appeal it, so the death penalty may effectively be dead in California for the time being (even though this ruling would likely be reversed if it were appealed (certainly reversed by the Supreme Court, and probably even reversed by the Ninth Circuit Court of Appeals, a relatively liberal appeals court with jurisdiction over California)).

    Geographic comparisons claiming the death penalty doesn’t work fail to control for demographic factors. After they are taken into account, it likely does work.

  5. ernieyeball says:

    The first death sentence historically recorded occurred in 16th Century BC Egypt where the wrongdoer, a member of nobility, was accused of magic, and ordered to take his own life.
    So how many humans have been executed since then? Billions and Billions?
    Maybe not quite. But despite a pile of stiffs that could likely reach the moon and back we are still wasting each other like Qayin (קין) and Hevel (הבל).
    I’d say it doesn’t work.

  6. Matt Bernius says:

    You fail to note that Van Den Haag’s commitment to the deterring factor of the death penalty didn’t stop him from acknowledging that it will most likely result in the execution of innocent people: “The conviction of some innocents is an unintended, yet unavoidable, byproduct of bringing the guilty to justice” and “I do not doubt that, over a long enough period, miscarriages of justice will occur even in capital cases.”

    Also given that Van Den Haag’s ascended over a decade ago and his last substantive research was published in the early 1980’s, I’m not sure he’s exactly the gold standard for the most recent research.

    Plus, I tend to agree that Virginia’s crime rates probably have more to do with parole and longer sentences than anything else (given general data on recidivism).

    Plus, I’m not sure what being a “former federal clerk” has to do with the initial part of your argument — as death penalty law is by and large a state issue. If you were writing on a federal legal issues, like Immigration law or Habeas Corpus, that would make more sense. That said, I think your circuit analysis makes sense.

  7. Another Mike says:


    I don’t see any evidence that hanging the convicted at the next sunrise after the sentence is pronounced will serve any retributave or deterrent purpose.

    Neither do I, but that may be because I cannot recall anyone being legally hanged recently, neither do I recall anyone being executed the morning after sentencing. We have judicial review nowadays. It might have quite a deterrent effect, but, like you say, there is no evidence. It still would be retributive justice, assuming the person did the crime and the punishment is due him in proportional to the crime.

  8. grumpy realist says:

    As time has gone on and I’ve read more about the abysmal way that some trials have been conducted, I’d much rather have life without parole. Avoids the problem of “oops, we found the prosecutor suppressed evidence that would have exonerated the guy but we’ve already chopped off his head”, plus it definitely detracts from making people into holy martyrs (if they’re trying to go that route For A Cause.)

    I find it ironic that it’s quite often the same conservatives who are convinced that Government is Incompetent Beyond Anything to immediately flip around and bay for Teh Death Penalty.

  9. Hans says:

    James Joyner calls this judge a “compassionate conservative.”

    But as it says in Midrash, “he who is kind to the cruel is cruel to the kind.” If the death penalty is a deterrent, and thus saves innocent lives, it may thus be cruel to invalidate it, lest the innocent be harmed.

    (Although I cited the Midrash, I should note that I am not religious, although my wife and daughter identify as Jewish for cultural reasons).

    In any event, I prefer uncompassionate moderates who can balance budgets, to self-described “compassionate conservatives” like George W. Bush who leave behind deficits (a vice he shares with his progressive successor, Barack Obama, who depicts even small 2% budget cuts as the end of the world, see, e.g.,

  10. ernieyeball says:

    It still would be retributive justice, assuming the person did the crime.

    And of course it is final whether or not the person did the crime.

  11. Tillman says:

    I say, unless you’re willing to guillotine them, abolish the death penalty.

    Also love how the headline allowed me to figure out what the judge based his decision on – not cruel, but unusual. Being on Death Row also could amount to a form of psychological torture.

  12. Tyrell says:

    Who speaks for the victims? Who speaks for the victim’s families and friends ? Where is the justice? Where are those balanced scales?
    Consider the Charles Manson fiasco. Convicted by a jury. Sentenced to death. But then the famous Supreme Court decision of some misguided judges and Manson gets his sentence changed to life. Manson is obviously guilty, no doubt about it, no question. Then over the next years “Charlie” shows up on tv doing “interviews” and the country is subjected to the “musings” of a psycho-meglomaniac. I would hate to think of the poor families of his victims suffering through that. Allowing him on tv was like rubbing salt in the wounds. I am for freedom of speech and the press, but the tv producers should have been ashamed.

  13. Tillman says:

    @Tyrell: On the other hand, his name in pop culture is synonymous with “insanely evil.” I imagine there’s some vindication for that. And he’s so far gone from anything resembling reality that listening to him is an exercise in patience.

    Further, the dude arguably hurt worst (or at least most visible to the media) by Manson’s killings fled the country for molesting a kid. So Manson’s televised interviews around here probably don’t reach him.

  14. CB says:


    I appreciate your input, but are we really talking about a deterrent here? Is killing someone before they can kill again a deterrent, or is it just removing an imminent threat from society? And could that not be accomplished through life imprisonment? I ask in earnest.

  15. ernieyeball says:

    @Tyrell: Who speaks for the victims?

    Your tax dollars at work.

    In fiscal year (FY) 2012, the Office for Victims of Crime (OVC) awarded more than $29 million in discretionary funds towards demonstration projects, research, evaluation, and training and technical assistance, in support of its mission to enhance the Nation’s capacity to assist crime victims and to provide leadership in changing attitudes, policies, and practices regarding justice and healing for all victims of crime.

  16. ernieyeball says:

    John P. Adams, 66, is charged with two counts of murder in the April 1 death of his wife, Kendra, who died one day after she was shot in the back of the head with a small-caliber firearm.
    Adams initially told police he found his 52-year-old wife unresponsive in their residence, but police said he later confessed to the shooting.
    This guy is obviously guilty, no doubt about it, no question. What do you say Ty? Waste him to deter future wife killers? Or life in prison without parole?

  17. Matt Bernius says:


    If the death penalty is a deterrent, and thus saves innocent lives, it may thus be cruel to invalidate it, lest the innocent be harmed.

    But if like Van Den Haag you admit and accept that in order to make the death penalty work you must also sacrifice some number of innocent lives, are you not still also harming innocents in the name of protecting innocents?

  18. Matt Bernius says:

    Or to put it a different way, do you honestly believe that the reason this guy shot his wife was because Illinois no longer has the death penalty?

  19. anjin-san says:

    If for no other reason, the death penalty should be abolished because it is enforced disproportionately against people of color & the poor.

  20. Ron Beasley says:

    @anjin-san: In addition if one innocent person is killed by the state this is reason enough to abolish it it. After you kill someone there are no take backs. Prosecutors here in Oregon have gone with life without parole simply because a death penalty case costs too much. Here in Oregon we have executed 2 or 3 people and those were all men who waived their appeal rights – a variation of suicide by cops. Our current Governor has a moratorium on executions as long as he is office. I might ad that I think spending the rest of your life in a 6 foot by 6 foot cell may be even worse than execution.

  21. ernieyeball says:

    @Ron Beasley..I might ad that I think spending the rest of your life in a 6 foot by 6 foot cell may be even worse than execution.

    Since there is absolutely no credible evidence for a human soul or an afterlife I’d say that it is a sure thing.

  22. Jim R says:

    @Ron Beasley:

    In addition if one innocent person is killed by the state this is reason enough to abolish it it.

    Well said and I agree.

  23. John Peabody says:

    As once described in “Doonesbury”, the shortest time between sentencing and execution would include the judge saying, “Bailiff may fire when ready”.

  24. OzarkHillbilly says:

    At least we don’t have this problem in Missouri. Which is great!!! unless unless actual innocence is of any import… which seems entirely possible when one considers that he was in jail in Iowa when the murders for which he was executed appears to have occurred, and the prosecution’s theory was that all 3 murders were linked,

    Robert Hall, a University of Missouri entomologist, reversed his earlier conclusions about when Pinegar died after finding out recently that Pinegar’s autopsy occurred a day later than he was told by state investigators prior to the 1997 trial. Hall was asked to analyze insects that were collecting on Pinegar’s body, which was left on the side of the road in Harrison County. Hall could deduce the time that Pinegar died by evaluating the degree to which those insects were developing in his flesh. That discrepancy shifted the timeline that supported Hall’s original theory on the time that Pinegar died.

    Who knows? Ah to hell with it, kill ’em all and let God sort ’em out.

  25. Rick DeMent says:

    the death penalty is a great deterrent for a very broad demographic group, those people who would never intentionally take another human life.

  26. Pete S says:

    How exactly does the death penalty as a deterrent work anyway? Do we assume that most killers are doing a rational cost benefit analysis, and that enough of them who currently decide that the murder they are about to commit IS worth spending the rest of their life in jail for would do the same analysis and figure it IS NOTworth dying for? If we don’t assume this thought process is taking place then I don’t see the effective deterrence of death penalty vs. life in prison.

  27. C. Clavin says:

    Johnny Winter is dead.
    A moment of silence, please.

  28. Yolo Contendere says:

    @Pete S: Exactly. None of these people thought they were going to get caught. If they did, they wouldn’t have committed the crime in the first place.

  29. Franklin says:

    I’m going to state the same thing I always do in death penalty threads: I’m not against it in theory, and even believe there’s probably some psychological deterrence to it. But my problems with it are always 1) the accidental killing of innocents and 2) the heavily skewed distribution of it on rich vs. poor, black vs. white.

    I suppose it would be an interesting analysis if you could measure the number of innocent lives saved due to deterrence vs. the number of innocent lives accidentally subjected to the death penalty. And yet should these really be balanced? Is it worse to be suddenly killed by some angry person, or be judged incorrectly by your peers, the state, and history, and *then* killed? I actually think the latter is significantly worse.

  30. pylon says:

    @Tillman: That reminds me of an episode of the TV series version of In the Heat of the Night, where Caroll O’Conner’s sheriff character says something to the effect of “the only way the death penalty wouldn’t be cruel is to tell the criminal he’s been freed, and then shoot him in the back of the head.”

  31. Rob in CT says:


    This. Well said.

  32. wr says:

    @Hans: “Geographic comparisons claiming the death penalty doesn’t work fail to control for demographic factors”

    And those demographic factors are:

    If the killer is white, he gets prison.

    If the killer is black, he gets the death penalty.

  33. Matt Bernius says:

    Actually, that’s not entirely true. If you do the research, there isn’t an immediate racial disparity seen in who gets the death penalty. There is some correlation to income level.

    However there is the following — documented — racial disparity in terms of where the death penalty is sought:

    If the victim is black, the convicted gets prison.

    If the victim is white, the convicted gets the death penalty.

  34. G.A.Phillips says:

    If for no other reason, the death penalty should be abolished because it is enforced disproportionately against people of color & the poor.

    Talk about the abolishing the death penalty. Did you know that abortion disproportionately targets the people of color & the poor.

    And them kids never did nothing to nobody…

  35. grumpy realist says:

    @G.A.Phillips: I take it if you ordered a dozen chickens for a restaurant business you would be perfectly satisfied if your supplier showed up with an egg carton of fertilized eggs?

    If not, then don’t say “kids” when you mean “zygote”

  36. G.A.Phillips says:

    Dude unborn babies are still babies, human babies with their own DNA and everything. Science has destroyed all of your arguments for infanticide.

  37. ernieyeball says:

    @G.A.Phillips: Women kill unborn babies every month when they go through the menstrual cycle. Those eggs are just as alive fertilized or not.

  38. george says:


    I don’t see any evidence that hanging the convicted at the next sunrise after the sentence is pronounced will serve any retributive or deterrent purpose.

    People tend to believe deterrence works selectively. If you’re against capital punishment (I am by the way, simply because I do not trust the gov’t enough to give them that, ultimate authority), then the tendency is to believe deterrence doesn’t work. However simultaneously many of us believe that deterrence will work against rape, or drunk driving, or tax evasion (ie incarceration will act as a deterrence) despite similar lack of evidence.

    We tend to be pretty inconsistent about these things – and I’m complaining about myself here.

  39. pylon says:

    @george: I tend to think that, the more rational the crime (i.e. tax evasion) the more likely the deterrence factor will be. I’d posit that tax evasion or embezzlement fall on one end of that scale and violent crimes fall on the other.

  40. george says:


    I’ve heard that said, but I’m not so sure. Besides the fact that some very violent crimes are premeditated (including some of the school shootings, murders, rapes), I think the tendency you suggest is also countered by the tendency for the perpetrators to see less violent crimes as victim less.

    And the overriding tendency is in any case for people to believe they simply won’t get caught, so the penalty is irrelevant to them.


  41. pylon says:

    School shootings and highly premeditated murders are far more rare than you’d think (by highly premeditated I mean planned out hours or days in advance, since legal premeditation only requires a moment’s thought).

    Most murders are spur of the moment.