California's Death-Penalty Regime Ruled Unconstitutional: It Should Have Been Buried More Than 50 Years Ago

FILE - In this Sept. 21, 2010 file photo is the death chamber of the new lethal injection facility at San Quentin State Priso
FILE - In this Sept. 21, 2010 file photo is the death chamber of the new lethal injection facility at San Quentin State Prison in San Quentin, Calif. Seven years after Scott Peterson was sentenced to death for murdering his pregnant wife Laci, his appeal is moving at lightning speed, at least compared to those of his 725ᅡᅠfellow California Death Row inmates. Appealing the death penalty in California can take two decades, meaning that condemned prisoners are more likely to die behind bars of natural causes than be executed. Now voters in California get an opportunity this November to vote on a measure that would abolish the death penalty. (AP Photo/Eric Risberg, File)

On July 16, 2014, U.S. District Judge Cormac J. Carney invalidated California's death penalty.

After reviewing voluminous evidence he held that:

Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional. (Jones v. Chappell, -- F. Supp. 3d --, ___ [CD. Cal. No. CV 09-02158-CJC, July 16, 2014])

Jones has been on death row for more than 19 years.

If the Jones decision holds up, it will be the beginning of the end of the death penalty in many other U.S. states in addition to California. Judge Carneyhas started a process that should have been started by the U.S. Supreme Court in a notorious California case more than 50 years ago. In 1960 the Supreme Court could have kept Caryl Chessman from being executed in San Quentin's death chamber. Chessman had been convicted by the State of California of attempted rape in the course of a kidnapping in 1948. He was executed more than 11 years later, following countless state and federal post-conviction proceedings and appeals. Unfortunately, the Supreme Court did not seize that opportunity.

In August 2012 I wrote an article for a SCOTUSblog Symposium commemorating the 50th anniversary of the publication of the late Alexander M. Bickel's seminal The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Bickel was a preeminent constitutional scholar who taught at Yale Law School. His book is still read and cited for his insights into how the Supreme Court and constitutional law work and his ideas about how they should work.

As I reported in my SCOTUSblog article, Bickel had condensed the lengthy memo I'd written for him on the Chessman case into a few paragraphs in the book. Bickel lamented that the Supreme Court had missed a signal opportunity to intervene in the Chessman proceedings and start moving toward prohibition of the death penalty. He asserted that the Court should have stopped Chessman's execution on the grounds that the long-government-sanctioned delay and numerous proceedings after Chessman's conviction made his execution unconstitutional.

With understandable passion, anticipating Judge Carney's conclusion in the Jones case, Bickel wrote of the Chessman case, "What the Court should have done was to declare that killing Chessman in 1960, after years in the death house, was a punishment infinitely more ghastly than killing him in 1948," setting in motion a process leading to an "ultimate broader judicial judgment, at once widely acceptable and morally elevating."

I think that Alex would be smiling about Judge Carney's decision. He certainly would have appreciated the irony that both Chessman and Jones were sentenced to death in and by the State of California, and that a Gov. Brown was in office both when Chessman was executed and when the Jones case was decided.

Pat Brown, California's governor in 1960, was a longtime foe of the death penalty. Yet he did not commute Chessman's death sentence and issued a stay too late to keep Chessman from being executed in San Quentin's gas chamber on May 2, 1960. Pat Brown's son, Jerry Brown, now is California's governor. He also is a foe of the death penalty. In 1964 Jerry Brown graduated from Yale Law School, where Bickel taught, just two years after The Least Dangerous Branch was published.

Within the next weeks and months, Jerry Brown and Kamala Harris, California's attorney general, who also is a foe of the death penalty, must decide whether to accept or appeal Judge Carney's decision. Both refused to appeal Judge Vaughn Walker's decision invalidating California's Proposition 8, which had prohibited same-sex marriages (see Hollingsworth v. Perry, 570 U.S. ___ [2013]). One can but hope that they will do the right thing again and stand by their convictions. The time has come to bring this part of Alex Bickel's constitutional legacy to fruition and end the broken, expensive, delay-plagued death penalty in California and the rest of the United States.