A recent Washington Post article discussed the upcoming Ninth Circuit hearing on a federal district court decision that invalidated California's death penalty scheme. The gist of the district court's decision was that delay had grown to the point that, by the time the prisoner was executed -- if he ever was -- the execution has lost most or all of its penological value, was thus arbitrary and, for any practical purpose, pointless.
So what accounts for so much of the years of delay? Careful inquiry into the facts of the case to insure we've got the right guy? Review to insure that fair procedures were followed?
Not exactly. According to the story, here are the sources of the lion's share of the delay (emphasis added):
Delays come for many reasons. Death penalties in California and elsewhere trigger a mandatory appeal to a state's top court, and then, if not reversed, through the federal system. These are part of the safeguards mandated by the U.S. Supreme Court in the 1976 Gregg decision ushering in the "modern" death penalty. Carney [the district judge who ruled against the California death penalty] noted that in California, appeals attorneys are not appointed for three to five years. They take four years to learn the case and file their appeal. Attorneys for habeas appeal (through the federal courts) are not appointed, on average, until eight to 10 years after the death sentence.
Got that? At the minimum, there are 15 years of delay just for the appointment of attorneys, and a maximum of 19. Two things jump out at you.
The first is that this is a scandal. Death penalty cases have a moral weight unlike any other, and should go to the front of the line. We don't know this?
The second is how easy this is to fix. Instead of abrogating the death penalty -- the will of the people (see 2012's Prop 34) and an established, constitutional punishment (see Glossip) -- the district court should have abrogated the absurdly excessive delay. Specifically, it could have, and on remand it should:
1. Reduce the time for appointing an appeal attorney to 90 days.
2. Reduce the allotted "study time" to one year. I was a federal prosecutor for a long time, occasionally handling complex criminal appeals. If you throw yourself into it full bore, there is no case on this planet that can't be learned in a year. For extraordinary and demonstrated good cause, I suppose we could allow an six-month extension onto that.
3. Reduce the time for appointing an attorney for federal habeas from the present mind-boggling (and, in a serious system, inexcusable) eight to ten years to 90 days. In truth, it shouldn't take anything close to 90 days. We're talking here about appointing a lawyer.
Now there might be complaints that the state just doesn't have enough qualified lawyers. Sorry, don't believe a word of it. This is a state with Los Angeles, Orange County, San Francisco, San Jose and San Diego. Not to mention Stanford, Berkeley, UCLA, UC Irvine, USC, UC Davis, Hastings. and on and on. And if that were not enough, the court could "urge" the California State Bar to take any needed steps to increase the number of capital qualified attorneys through continuing legal education.
With these obvious remedies at hand -- any one of which would considerably reduce California's delay -- there is not even a ghost of a rationale for the courts to conclude, "Well, gosh, there's not anything to do but abolish the death penalty."
If the Ninth Circuit -- ever a master at fashioning remedies -- cannot see this, the Supreme Court will
Of course, it's easy to say "Require the appointment of an attorney within 90 days." If it were that easy to do, California would already be doing it. The problem is that there are simply not enough lawyers who want to do capital appeals. They're complicated and time-consuming, require a significant amount of knowledge and training, and the money you get doesn't usually make it worthwhile.
It seems to me there are 2 possibilities: you could try to force lawyers to accept appointments, or you could make the cases so lucrative that lawyers would want to take them. Either approach has problems. I don't know how well mandatory appointments would go over with the legal community, and they certainly would have something to say to the Legislature about it. And spending enough money to make capital appeals a desirable endeavor obviously won't be popular when the state is just starting to recover from a lengthy economic downturn and every part of government has undergone massive cuts.
I'm sure that you can work up a case in a year if you go at it "full bore," but you also have to take into account the fact that most lawyers won't be working on just that case. If you're trying to increase the number of lawyers doing capital appeals, you're going to be talking about lawyers who already have a practice and a full slate of cases to work on. They're typically not going to be able to drop everything and focus on one case for a year.
I agree with you that it's disgraceful that it takes so long to process a capital appeal in California. All I'm pointing out is that it's easy to make sweeping pronouncements like this is "easy to fix," but the reality is a lot more complex and difficult.
- Victor
Victor,
I don't think it's a case of not paying enough. Appointed appellate lawyers are paid by the hour, and there are more than enough willing to take noncapital cases. I have a letter from the appellate project for my home region a few years back that said they have to turn down applications for their panel in order to keep enough work for the lawyers already on it.
Capital cases pay half-again as much per hour as non-capital cases. So why do qualified lawyers refuse to take them? I think it is because the capital appeals bar has created a culture that it has to be this massive undertaking where the lawyer must make every conceivable argument. Both the U.S. and California Supreme Courts have said that is not true.
A capital case should only take twice as much time as a noncapital murder case -- the same for the guilt phase and a similar amount for the penalty phase. That is not an excessive burden for lawyers who regularly handle noncapital murders, and taking capital cases should be a requirement to stay on the panel.
Victor --
If judges have the power to order the release of thousands of properly convicted felons to vindicate the right to humane conditions of confinement under the Eighth Amendment, then they have the power to order the California Bar to provide adequate and timely capital representation to some dozens of defendants under the Sixth Amendment.
To be a member of the bar is to be an officer of the court with duties to the court. More broadly, to become a lawyer is to undertake responsibilities to justice that other people don't have, and that may require sacrifice.
Too bad. And not that it's truly regarded as sacrifice, either. Big firms loudly advertise to lawyers they're trying to recruit their extensive pro bono programs. It's regarded as a feather in the cap, not a burden.
But even if it were a burden, it can still be done, and it won't need a Plata-style order, either. Here's the regimen: The chief judge of the district calls up the managing partner and O'Melveny (or Jones Day or two dozen other extremely fat firms) and says, "Good morning Mr. Smith. As you know, my colleagues and I have the greatest respect for the professionalism and civic-mindedness of your outstanding firm. We would therefore regard it as a great service to the court and to justice if you would take on just a dozen capital cases this year and next. Delay in processing these cases has become something of a scandal. We know that the tradition of your fidelity to the highest standards of practice makes you a sure bet to do a bang-up job. I'll be sending the assignments in the first batch over this afternoon. Can the court count on you?"
There might be some partner somewhere with the moxie to say "no," but I seriously doubt it.
The judge repeats this to the three dozen smartest, biggest, and richest firms in the state, and California's appointment delay will vanish by Labor Day.
Bill -
Assuming you're right, and a phone call from, say, the Chief Justice of the California Supreme Court (since the delay appears to be at the state, not federal, level, the chief judge of the district has no jurisdiction) could immediately deploy a large number of highly skilled attorneys, why would you guess that has never been tried (at least as far as we know)? If it's as simple as that, what's the holdup?
-V
The call doesn't get made because the legal establishment in California, with whom the Chief Justice is, shall we say, in sympathy, doesn't want it made.
The establishment opposes the DP; understands that its moral arguments are getting nowhere; and so wants to build up the practical argument that there's just too much expense and delay. Having "a large number of highly skilled lawyers" (as you correctly say) jump in to take these cases pro bono would substantially alleviate the problem, and thus take the air out of the sails of the practicality argument. (It would also cut slightly into firm profits, but that's secondary).
States, like Virginia, that favor the DP by big margins constitutionally carry it out much faster than California. The latter could do the same -- if it actually wanted to.
This is but one aspect of the overall problem in California: The state's governance, in all three branches, opposes the DP, and is looking for some way to gum up the works. Getting the works un-gummed up is the opposite of what they want to do.