It's been almost twenty years since Justice Stevens, alone, took seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it, all or most of them initiated by the defendant. That was in Lackey
, 514 U.S. 1045 (1995). The full court has turned the claim down every time. Although denial of certiorari (meaning simply that the high court declines to hear the case) does not form a precedent binding on lower courts, the consistency of rejection of this claim has generally been understood as a signal that the issue was dead.
Prior posts on the high court's rejection of Lackey
claims are here
, and here
Justice Thomas noted in Knight
, 528 U.S. 990 (1999):
write only to point out that I am unaware of any support in the
American constitutional tradition or in this Court's precedent for the
proposition that a defendant can avail himself of the panoply of
appellate and collateral procedures and then complain when his execution
is delayed. Indeed, were there any such support in our own
jurisprudence, it would be unnecessary for proponents of the claim to
rely on the European Court of Human Rights, the Supreme Court of
Zimbabwe, the Supreme Court of India, or the Privy Council.
Now comes a federal district judge in California who accepts the claim based on the particularly extended delays in California. The order is here
Judge Carney's thesis, in a nutshell, is that the death penalty lacks a penological basis after such a long delay. But the retribution interest, at least, is still there. The defendant still deserves this punishment for the very worst murders, and society has a valid interest in carrying it out, no matter how long it takes.
The problems Judge Carney notes are violations of rights, though -- the rights of the victims' families. See 18 U.S.C. § 3771(a)(7); Cal. Const., Art. I, § 28(b)(9). The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time. The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so. The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong. The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.
All of these people need to do their duty and fix the delays -- for the victims, not the perpetrators.
The facts of the particular case follow the break.