Listen to the smart judge, California

I've long known that California, of all states, had by far the most dysfunctional death penalty system. At last count, they had 748 defendants on death row. In total, over 900 individuals have been sentenced to death since California reinstated the death penalty in the post Furman-era of the mid-70s. Yet since 1976, only 13 people have been executed. If you take the total amount the state has spent on death penalty cases since 1976 and divide it by those 13 executions, it's a staggering number (as in several hundred million dollars). Since 2006, there haven't been any executions and there's no reason to think there will be one any time soon because the state has no execution protocols in place. Meanwhile, new death sentences are being imposed every year, so the death row population is ever-increasing.

I knew that the average length of time defendants spent on California's death row dwarfed the national average, that death row inmates in Cali were more likely to die from natural causes than execution, etc. I knew that one of the main problems was a lack of resources. Not enough lawyers, to start, because there's not enough money to fully-staff public defender offices and way not enough money to entice private attorneys to take on these cases. Then, of course, there's no money for the additional resources a defense attorney needs to handle post-conviction procedures correctly, like to hire investigators and experts, track down witnesses, etc. I knew that the death penalty in California was a pointless exercise in futility.

But even with all that knowledge, I was still  not quite prepared for the depth and breadth of the dysfunction in California as it was laid bare today in a federal district court opinion finding the California death penalty system to be unconstitutional. The defendant, Ernest D. Jones, through his lawyers at the Habeas Corpus Resource Center (HCRC) argued that the systemic dysfunction and delay that permeates every level of post-conviction review in California rendered his death sentence arbitrary in violation of the Eighth Amendment. Arbitrariness is a key word in death penalty case law; it's the thing we've been striving to pretend doesn't exist in our death penalty schemes. In this context, the arbitrariness argued by the defense and agreed to by the federal court was in how few death sentences will actually be carried out and that there's just no telling which few inmates it will be carried out on. There's really no rhyme or reason to why those 13 guys were the ones who were executed. No will there be any sensible distinction between the say 5-10 guys now on death row who are executed and the other 740 who will avoid that fate.

Because of the ridiculous delays and the sheer randomness of which cases finally make it through the system, this federal district court judge found California's death penalty unconstitutional. It's what people in the know have been saying for years. It's beyond refreshing to see a judge own it.

The thing that most floored me as I read this decision was how long it really takes to get attorneys appointed on direct appeal. In a normal state where the process is working as it should, the appointment of appellate counsel* should happen at roughly the same time as the pronouncement of sentence. A defendant is formally sentenced, the trial attorney files the notice of appeal (often on that day, but definitely within about 10 business days), and appellate counsel is appointed. It's not at all uncommon for all of that to be done on the day of sentencing. It's pretty easy to write a name on a form and then send a copy of that form on to appellate counsel. Then appellate counsel gets the appeal rolling, filing the necessary documents at the appellate court, requesting transcripts, etc.

But in California, it's not that simple. In California, as I learned in today's decision, it takes 3-5 years for appellate counsel to be appointed. 3-5 years. That is 3-5 years that a person newly convicted of murder and sentenced to death must wait around in prison without an attorney, without anyone to ask about the process, without anyone on his side. Maybe to some of you, that doesn't inspire a whole lot of sympathy. But to me, being in prison and facing a death sentence without one single person to turn to for guidance is unimaginable. One thing I wonder about is whether the transcripts are being prepared in those intervening years or whether that process waits until there is an attorney appointed? It's bad enough that defendants have to wait 3-5 years before an attorney begins working on the case, but it would be even worse if "working" on the case involves all that preliminary, time-consuming stuff like compiling the record and ordering transcripts.

California's death penalty quagmire doesn't get better after the direct appeal, either. There are lengthy delays in the appointment of the attorneys who handle state and federal habeas review. This is the part of the process that frustrates the crap out of kill-happy politicians and a public who doesn't understand why there are so many appeals. But it's an essential part of the process. Generally, it's only in habeas proceedings that defendants can raise issues related to the performance of trial counsel. Since effective assistance of counsel is a constitutionally-guaranteed right, it's kind of a big deal to make sure that right wasn't denied. And yet, in California, again, we're talking an average of years before habeas counsel is appointed.

The delays inherent in California's death penalty system aren't because defendants are pulling tricks and being difficult. It isn't because attorneys are filing frivolous motions and meritless appeals. It's because for literally years, there is no one doing anything on these cases. There is, in fact, no one to do anything on these cases.

That the California system has been irretrievably broken for years is not news. Back in 2008, a commission offered numerous suggestions for clearing up the quagmire. But in 2014, nothing has changed. The courts are more backlogged than ever.

Really, this judge just had the courage to say what so many people have been thinking for years. California, your death penalty is a joke. No, worse. It's a disaster. You've hopelessly, irrevocably mucked it up. It cannot be fixed. You will never execute the defendants you have already sentenced to death; you will definitely not get to any new death sentences. You're throwing bad money after good into this thing and getting absolutely nothing out of it. So stop. Just stop. Take this decision as your opportunity to once and for all get out of the death penalty business while you still have some dignity.

The only way for California to fix its death penalty is to abandon it.



*It really needs to be different counsel for a couple of reasons. Trial work and appellate work are very different beasts, for starters. But you also want fresh eyes on the case and counsel who will be free to identify if prior counsel made mistakes.