Jones v. Chappell, Case No. CV 09–02158–CJC.

• Citation: 31 F.Supp.3d 1050
• Decision Date: 16 July 2014
• Docket Number: Case No. CV 09–02158–CJC.
• Court: U.S. District Court — Central District of California
• Parties: Ernest Dewayne JONES, Petitioner, v. Kevin CHAPPELL, Warden of California State Prison at San Quentin, Respondent.

31 F.Supp.3d 1050

Ernest Dewayne JONES, Petitioner

v.Kevin CHAPPELL, Warden of California State Prison at San Quentin, Respondent.

Case No. CV 09–02158–CJC.

United States District Court, C.D. California.

Signed July 16, 2014.

Michael Laurence and Cliona R. Plunkett, Habeas Corpus Resource Center, San Francisco, CA, for petitioner.

James W. Bilderback, II, Sarah Jean Farhat and Herbert S. Tetef, Office of Attorney General of California, Los Angeles, CA, for respondent.

ORDER DECLARING CALIFORNIA'S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER'S DEATH SENTENCE

CORMAC J. CARNEY, District Judge.

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California's Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California's death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment's prohibition against cruel and unusual punishment.

BACKGROUND

A. Delay in California's Death Penalty System

California juries have imposed the death sentence on more than 900 individuals since 1978.¹ Yet only 13 of those 900 have been executed by the State. Of the remainder, 94 have died of causes other than execution by the State, 39 were granted relief from their death sentence by the federal courts and have not been resentenced to death, and 748 are currently on Death Row, having their death sentence evaluated by the courts or awaiting their execution.²

The simplest explanation for the size of California's Death Row is that in each year since 1978, more individuals have been sentenced to death than have been removed from Death Row. See Commission Report at 121 (showing historical growth in the size of California's Death Row). As the size of California's Death Row grows larger and larger, so too do the delays associated with it. Of the 748 inmates currently on California's Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years.³ Nearly all of them are still litigating the merits of their death sentence, either before the California Supreme Court or the federal courts.⁴ See Appendix A.⁵

For those whose challenge to the State's death sentence is ultimately denied at each level of review, the process will likely take 25 years or more. See Gerald Uelmen, Death Penalty Appeals and Habeas Proceedings: The California Experience, 93 Marq. L.Rev. 495, 496 (2009) (“Typically, the lapse of time between sentence and execution is twenty-five years, twice the national average, and is growing wider each year.”). The majority of that time will likely be spent litigating before the California Supreme Court. See Dkt. No. 109–3, Exh. 15 [“Laurence Decl.”] ¶ 15 (noting that for inmates who had their state habeas petitions decided between 2008 and 2014, the average delay between sentencing and disposition of the petition was 17.2 years). There is no evidence to suggest that the trend is reversing.

Of course, the vast majority of those sentenced to death in California will not actually be executed by the State. Indeed, the most common way out of California's Death Row is not death by State execution, but death by other means. Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide, or causes other than execution by the State of California. See Appendix A. Another 15 sentenced after 1997—or two more than the total number of inmates that have been executed by California since the current death penalty system took form—have died of non-execution causes.⁶ As California's Death Row population gets older, that number is sure to rise. See CDCR Summary at 1 (showing that nearly 20 percent of California's current Death Row population is over 60 years old).

For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them.⁷ See Appendix A. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts.⁸ See id.

B. The Nature of Delay in California's System

The nature of the delay in California's administration of its death penalty system has been comprehensively studied, including by the State itself. In 2004, the California State Legislature established the California Commission on the Fair Administration of Justice (the “Commission”), and tasked it with conducting a comprehensive review of the State's justice system, including its administration of the death penalty. See Commission Report at 113–14. The Commission, a bipartisan panel which was composed of prosecutors, criminal defense attorneys, law enforcement officials, academics, representatives of victim's rights organizations, elected officials, and a judge, issued its Final Report in June 2008. Its conclusion was a stern indictment of the State's death penalty system:

California's death penalty system is dysfunctional. The system is plagued with excessive delay in the appointments of counsel for direct appeals and habeas corpus petitions, and a severe backlog in the review of appeals and habeas petitions before the California Supreme Court.

Id. at 114–15.⁹ The Commission is not alone in reaching this determination. In 2008, then-Chief Justice of the California Supreme Court Ronald M. George offered the same assessment. See Ronald M. George, Reform Death Penalty Appeals, L.A. Times, Jan. 7, 2008 (“The existing system for handling capital appeals in California is dysfunctional and needs reform. The state has more than 650 inmates on death row, and the backlog is growing.”) (cited in Commission Report at 164–65 n. 3). Ninth Circuit Court of Appeals Senior Judge Arthur L. Alarcón has suggested the same in his study of the issue. See Arthur L. Alarcón & Paula M. Mitchell, Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature's Multi–Billion–Dollar Death Penalty Debacle, 44 Loy. L.A. L.Rev. S41, S61 (2011) (describing California's “broken” death penalty system).

In reaching these conclusions, the Commission and others have documented the source and nature of the delay in California's death penalty system. Their studies confirm that delay is evident at each stage of the post-conviction review process, including from the time the death sentence is issued.

1. Delay on Direct Appeal

In California's death penalty system, delay sets in at the first step of post-conviction review—direct appeal. California law mandates that after a death sentence is imposed, it must be automatically appealed to the California Supreme Court for review. See Cal.Penal Code § 1239. To pursue that appeal, indigent Death Row inmates are entitled to the assistance of court-appointed counsel.¹⁰ See Cal.Penal Code § 1240. But inmates must wait years—on average, between three and five years—until counsel is appointed to represent them. See Commission Report at 122. Indeed, as of June 2014, there were 71 Death Row inmates awaiting appointment of counsel for their direct appeal. Dkt. No. 116 [“Laurence Supplemental Decl.”] ¶ 3. Unsurprisingly, until such counsel is appointed, there is effectively no activity on the inmate's case.

This delay is likely due to the severe shortage of qualified attorneys available to accept appointment as counsel on direct appeal. To be appointed, attorneys must have at least four years of active law practice, experience in felony appeals, completion of training, and demonstrated proficiency in appellate skills. Commission Report at 132 (citing Cal. Rule of Court Rule 8.605(d) ). Notably, however, the Commission did not find a general dearth of lawyers able to meet these qualifications or willing to take on the representation of Death Row inmates. Rather, the Commission found the State's underfunding of its death penalty system to be a key source of the problem. Id. For example, the Commission noted that despite the high volume of applicants willing to represent Death Row inmates from the security of an agency setting, the Office of the State Public Defender's budget has been cut and its staff reduced. Id. (recommending that “[t]he most direct and efficient way to reduce the backlog of death row inmates awaiting appointment of appellate counsel would be to again expand the Office of the State Public Defender”)....