On Wednesday, July 16, Federal Judge Cormac J. Carney declared the California death penalty unconstitutional, finding that it violated the Eighth Amendment. He ruled that the state’s arbitrary delays in executing death row inmates render the act of execution itself cruel and unusual. Death penalty critics across the country applauded Judge Carney’s decision for its likely implications for other states’ death penalty statutes, since it creates hope that other states will overturn their death penalties on similar grounds. However, this judicial reasoning does little to nationally advance the anti-capital punishment cause.
Judge Carney’s logic states that the fact of systematically embedded delays, which make execution uncertain for death row inmates, proves the cruelty and unusualness of the death penalty. California, the national leader in number of inmates on death row, has not executed one of its 748 death row inmates since 2006. The bottom line is that the California death penalty is unconstitutional because too few death row inmates actually receive it on time or at all. To Judge Carney, “These delays—exceeding 25 years on average—are inherent to California’s dysfunctional death penalty system, not the result of individual inmates’ delay tactics, except perhaps in isolated cases.”
The United States Supreme Court has advanced a death penalty argument rooted in arbitrariness before, in its landmark 1972 death penalty case Furman v. Georgia. In Furman, the Court determined the death penalty unconstitutional only as applied at the moment. The case implicated race as an arbitrary and unfair indicator of a defendant’s likelihood of receiving the death penalty. In his majority opinion, Justice Potter Stewart wrote, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” In other words, the arbitrariness plaguing the capital punishment system during 1972 made capital punishment cruel and unusual punishment. This logic directly parallels Judge Carney’s: both judges denounced capital punishment for its arbitrariness.
This reasoning leaves the capital punishment door ajar to the potential for improvement. If the system were not so arbitrary, it allows, then capital punishment would be consistent with the Eighth Amendment. In its 1976 Gregg v. Georgia case, the U.S. Supreme Court reversed its Furman ruling, reinstituting the death penalty on the condition that objective aggravating circumstances such as vulnerability of the victim and pecuniary gain be adopted to direct sentencing and that mitigating factors like a defendant’s character and prior criminal record also be considered. It took just four years for the Court to determine the capital punishment system had improved enough to once again be constitutional.
The California death penalty ruling may indeed inspire similar arguments surrounding arbitrariness and delays in other states, but the U.S. has already witnessed the tenuousness of the abolitionist celebration of rulings like Judge Carney’s. Improvement, or its semblance, causes reinstatement of capital punishment. Criticism of the current capital punishment system rather than of the death penalty itself will likely engender reform efforts at the expense of abolition efforts, as the 1972 Furman ruling did. Whether the delays are as fixable as the problems that Furman ordered to be remedied does not matter; Judge Carney’s decision emphasizes a technical problem with the system rather than the wrongness of the system itself.
Furthermore, systemic problems like California’s may resonate with other states with low execution rates, but what about those states like Texas with higher rates? Reasoning like Judge Carney’s will likely fail to eliminate the death penalty everywhere in the U.S. Thus, even if the recent California ruling holds and the death penalty remains unconstitutional in California despite potential improvement of the system, the unlikelihood of the application of Judge Carney’s argument to other states poses significant challenges to national capital punishment abolition. One can hardly perceive this ruling as a harbinger for eventual national elimination of the death penalty.
What the movement for national abolition of capital punishment most requires at the moment is a shift in the discussion framework anchoring it. Concerns over the arbitrariness of the capital punishment system entrench the debate in a cycle of rulings and counter-rulings that ultimately leaves capital punishment alive and well. Only by redirecting the debate’s focus to capital punishment itself can the abolitionist movement make meaningful strides.
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