Federal Appeals Court Hears Arguments on the Constitutionality of California’s Death Penalty
Last year, U.S. District Judge Cormac Carney declared California’s system of capital punishment unconstitutional. Yesterday, a three-judge panel of the U.S. 9th Circuit Court of Appeals heard arguments that “focused on procedural land mines that could imperil” the ruling, according to the LA Times yesterday.
They continued, saying that last year’s ruling determined that the long delays “and dysfunction render California’s death penalty arbitrary and unconstitutional.”
The LA Times reported that “Judge Paul J. Watford, an Obama appointee, said he had ‘major problems’ with the fact that Carney ruled on an issue not yet addressed by the California Supreme Court.”
Attorney Michael Laurence argued that if the 9th Circuit were to send the case back to California, it would go to the Supreme Court, and it will take an additional four years before any decision is reached. “If the California Supreme Court truly wanted to resolve this question in an expeditious manner, it would have done so a year ago,” Mr. Laurence said.
Clinton appointee Judge Susan P. Graber “suggested the state high court might already have rejected the constitutional argument, albeit in a more narrow context. Federal courts are supposed to defer to decisions by state judges in criminal cases.” She continued, “The California Supreme Court has made it quite clear that the record in this case does not warrant relief on the merits.”
Judge Johnnie B. Rawlinson is another Clinton appointee, and she questioned whether Carney’s ruling was based on direct U.S. Supreme Court precedent. I am having difficulty with your argument,” she said. “Has the Supreme Court ever said the fact that one is lingering on death row for a finite number of years or an infinite number of years constitutes a constitutional violation?”
However, Deputy Solicitor Gen. Michael J. Mongan, arguing for Atty. Gen. Kamala D. Harris, who is opposed to the death penalty, nevertheless argued that Judge Carney’s ruling was “novel.” Mr. Mongan said, “It is absolutely the case that the review process in California is a lengthy one.” But he said that the delays do not mean a death sentence “is arbitrary or that it produces random results.”
The Times spoke with Loyola Law Professor Laurie Levenson, who told the paper that it appears the “death penalty opponents face ‘an uphill battle’ with the court.” She said, “The tea leaves said to me that the panel would be most comfortable sending it back” to state court.
Republicans Offer Counter Message: Proud to Stand With Police
The Dallas Morning News reported Monday that US Senator Ted Cruz and Lt. Governor Dan Patrick “have seized on the slaying of Harris County Deputy Sheriff Darren Goforth in solemn terms — but also with an edge.” They write, “With echoes of Richard Nixon in the late 1960s, both of the Texas Republicans are saying it’s time to ‘stand with’ — and pray for — law enforcement officers such as Goforth.”
Senator Cruz blamed the ambush murder of the sheriff’s deputy on President Obama. He told reporters in New Hampshire, “Cops across this country are feeling the assault… They’re feeling the assault from the president, from the top on down, as we see — whether it’s in Ferguson or Baltimore, the response from senior officials, the president or the attorney general, is to vilify law enforcement. That’s wrong. It’s fundamentally wrong. It’s endangering all of our safety and security.”
“I’m proud to stand with law enforcement,” Senator Cruz said. “… We need a president who doesn’t attack and vilify them, and who doesn’t seek to tear us apart along racial lines, to inflame racial divisions.”
Law enforcement pushed back as well. “We’ve heard black lives matter, all lives matter,” Harris County Sheriff Ron Hickman told reporters at a Saturday press conference. “Well, cops’ lives matter, too.”
But as the Vanguard pointed out a few weeks ago – police lives do matter, and matter far more than most other people’s lives in the legal system.
We looked at the few instances where police officers were successfully prosecuted for on-duty shootings and killings. Until recently, there was a reluctance to charge police with crimes committed while on duty. A crime committed against a police officer on duty results in special circumstances that makes it more likely to lead to the death penalty. Crimes against police officers often are charged more severely or carry their own enhancements.
It will be interesting to see where this debate ends up – the pushback comes as the #blacklivesmatter campaign has formalized their agenda.
Bipartisan Agreement for Reduction of Prison Population?
Despite the rhetoric that is evident, there is bipartisan agreement emerging on one issue: criminal justice reform. When Congress resumes next week, a bipartisan group on the Senate Judiciary Committee will announce a deal to relieve the overcrowded federal prison population.
The bill, still in progress, “would give judges more discretion in sentencing offenders of certain nonviolent drug crimes and let well-behaved inmates earn time off their prison terms.”
However, critics are quick to note that the bill will not deal with reductions to mandatory minimums that are blamed for mass incarceration. The mandatory minimums prescribe specific lengths of terms for certain offenses, preventing judges from using discretion in carrying out punishment. While the bill does not address that issue, it would give judges some leeway in sentencing drug offenders.
The legislation puts groups, like the ACLU and the Koch Brothers, as allies, pressing Congress to reduce the US prison population. Both sides blame federal overreach for the fact that the US has less than five percent of the world’s population, but a quarter of all the world’s prisoners.
“We think the criminal justice system needs reforms in a comprehensive way,” said Mark Holden, general counsel and senior vice president at Koch Industries.
“The way the system is set up now, it is not working the way it should,” Mr. Holden stated. “You have a two-tiered system where, if you are rich and well-connected, you end up OK. If you are poor, you won’t. We are wanting to remove these obstacles. If you believe in the Bill of Rights, and against infringement of our rights, this is the place we need to be.”
A Pew study, which uses data from the Federal Bureau of Prisons, showed that there are more than 207,000 inmates in federal prisons, and 95,000 of those inmates are incarcerated for drug-related offenses—up from fewer than 5,000 in 1980.
The increase in incarceration is costly to the federal government, which saw a 595 percent increase in spending over a 33-year period of time, from $970 million to more than $6.7 billion. Prison spending now represents one of every four dollars spent by the U.S. Justice Department.
These policies, many reformers have come to believe, have outlived their usefulness and need to be revised. Minimum sentences for drug offenders range from 5 to 10 or 20 years.
But without addressing these issues, is the compromise just window dressing?
John Malcolm, the director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies, sums up the dilemma.
“Some believe our current sentencing regime is unfair and the pendulum has swung too far in terms of imposing harsh sentences,” Mr. Malcolm stated. “Others believe increased incarceration and harsh sentences have taken some very dangerous people off of the streets. I remain cautiously optimistic there is some ‘sweet spot’ where both sides can compromise.”
However, what is clear is that the time is coming near where consensus is beginning to emerge that the current system is not sustainable.
—David M. Greenwald reporting