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A Miranda-type Prophylaxis for the Death Penalty

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Miranda is one of the Supreme Court's most flagrantly lawless decisions.  One can agree, as I generally do, that it's wise as a policy matter to help insure the voluntariness of a defendant's statement by advising him that he has no obligation to make one, while still being clueless as to where in the Fifth Amendment the failure to give such advice per se makes the statement "compelled" and thus automatically subject to exclusion.

The most coherent, although still inadequate, excuse for the Court's effectively splicing Miranda warnings into the Fifth Amendment is that such is necessary, or at least very useful, as a "prophylaxis" to insure  --  without the courts having to examine each case in its own inscrutable detail  --  that the defendant's statement was in fact voluntary.  (Of course this rationale' disintegrates as soon as the ink is dry, because even defendants who admit they've been given the warnings are still able to, and routinely do, raise voluntariness challenges on all manner of other grounds  -- challenges the courts must decide long after the litigants have walked away from the Miranda motion).

I say this to make a point:  Miranda establishes, for good or ill, that the Court can adopt specific prophylactic rules to safeguard a defendant's constitutional rights. And Miranda is going on fifty years old.  Especially after the Court re-affirmed Miranda in Dickerson, it's too late to un-ring the prophylactic rights bell.

Today's death penalty decision from the district court in California thus gives us an unexpected but important lesson:  It's time to apply Miranda's ad hoc creativity to safeguard a defendant's rights, not under the Fifth Amendment, but under the Eighth. 
Kent has explained the gist of today's decision:  The district court held that actually carrying out the death penalty in California has become so convoluted; depends so much on the diligence (or not) of so many actors; and basically just takes so much time, that, by the time the execution actually occurs (if it ever does), it has lost its penological value and is thus a violation of the Eighth Amendment.  The sheer amount of the delay, the court explained, essentially puts the defendant in a slowly twisting, Kafkaesque world, leaving him nothing but years of cruel speculation about when or even whether the state's grim reaper will appear at his cell door.

This analysis is incorrect for the reasons Kent explains.  But that's not the point here. I'm going to assume that the district court's Eighth Amendment's analysis is sound. (And, while it isn't, there's no little force in the notion that the length of time needed to actually execute a killer has become preposterous, and, as it stretches out, loses at least some of the value of doing it at all).

Assuming that the district court's analysis is right, its remedy is wrong.  It's worth remembering here that, as recently as Baze, the Supreme Court held point-blank that, because the death penalty is constitutional and lawfully prescribed by the legislature, there has to be a way to carry it out.

That is true today as well.  Thus the remedy for a potentially interminable delay that complicates the death penalty's imposition  -- just as the remedy for a potentially coercive interrogation that complicates a confession's voluntariness  -- is for the Court to write specific rules for timing (just as it wrote a manual of specific warnings for police questioning). Such rules might include, for example, that, after the jury has handed down a death sentence, the court must within 90 days appoint counsel for the appeal.  After his appointment, counsel will have one year to submit the appeal.  The government will have six months to answer.  The court of appeals will have six months to decide the case.  Additional timing rules for collateral attack are likely to be needed, but it is not my purpose here to spell out all the details. It is certainly the case that we can do vastly better than the atrocious mess California has become.  A capital case can be resolved with full due process and the required degree of moral certainty in less than ten years; Virginia does it in less than that, and a much wealthier state like California can too.

Mind you, I do not for one minute think that, in a world where the courts tend to their business and the political branches to theirs, it's up to the judiciary to gin up ad hoc rules like this.  That job lies with the legislature.  But if (1) the legislature is too paralyzed or perverse to act, and (2) the courts now feel like they are empowered to find Eighth Amendment violations solely because of the passage of time, then the correct remedy is not to abolish a punishment the Supreme Court has explicitly approved and Californians have declared only recently they want to retain.  It's to create, a la' Miranda, a set of prophylactic rules that will cut the delay to what the court deems to be a constitutionally acceptable time frame.

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So if these time limits were imposed, and a court failed to act, the State's remedy is writ of mandate?

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