The week before a prolonged Arizona execution renewed the debate over lethal injection, a federal judge in California ruled that the Golden State's death penalty is unconstitutional under the Eighth Amendment's prohibition of cruel and unusual punishment. He was absolutely correct: Death sentences in California as well as Pennsylvania are cruel and unusual -- especially to victims' families.
The California opinion wasn't authored by a liberal. It came from Judge Cormac J. Carney, a conservative appointed by President George W. Bush. Carney was ruling on the case of Ernest Dwayne Jones, who was sentenced to death in 1995 for raping and killing his girlfriend's mother.
Addressing the long delay of Jones' execution, Carney noted that since 1978, 900 individuals have been sentenced to death in California, but only 13 have been executed. Given this record, the judge found that Jones faced "complete uncertainty as to when, or even whether" he will be executed.
"California's death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," Carney noted. "The review process takes an average of 25 years, and the delay is only getting longer. Indeed, no inmate has been executed since 2006, and there is no evidence to suggest that executions will resume in the reasonably near future."
To carry out the sentences of the 748 inmates currently on death row, Carney observed, California would have to conduct more than one execution a week for the next 14 years.
"In California, the execution of a death sentence is so infrequent, and the delays preceding it so extraordinary, that the death penalty is deprived of any deterrent or retributive effect it might once have had," the judge wrote. "Such an outcome is antithetical to any civilized notion of just punishment."
Natasha Minsker, a director of the American Civil Liberties Union of Northern California, told the Los Angeles Times that it was "the first time any judge has ruled systemic delay creates an arbitrary system that serves no legitimate purpose and is therefore unconstitutional."
It's surprising that no one on the federal bench in Pennsylvania has come to the same conclusion. Since 1978, when capital punishment was last reinstated in the commonwealth, only three people have been put to death. (The most recent was Gary Heidnik in 1999.)
In each of those three cases, the convict had given up his right to appeal, meaning he essentially asked for the punishment to proceed. So although the death sentence is nominally on the books to this day, the state has not carried out a contested execution since 1962.
Currently, there are 185 inmates on Pennsylvania's death row. And they are very much alive; some have been in their cells for as long as three decades.
Of the 28 who have been awaiting an execution date since the 1980s, 10 received more than one death sentence. They include mass murderer George Banks, who was convicted of 12 counts of first-degree murder, and "karate-style" killer Roland Steele, who was found guilty of three counts of first-degree murder. All together, the 28 longest-serving death-row prisoners are responsible for the prolonged grief of the loved ones of 54 victims.
Since Pennsylvania's last contested execution, the justice system has been gradually manipulated into coddling its worst offenders at the expense of victims' loved ones who participate in the process in good faith. They sit through the trials of killers, watch as they are convicted, offer testimony in sentencing phases, and leave court relieved that the perpetrators face capital punishment. But the sentences are actually only the beginning of endless appeals that will likely continue until the inmates die in prison.
The state's federal judges have shown no willingness to allow Pennsylvania's death sentence to be carried out when it is contested. A 2011 analysis by The Philadelphia Inquirer found that 32 percent of the state's capital convictions since the 1970s had been reversed or remanded for new hearings on the basis of errors by lawyers. As for the remaining death-row inmates, they're more likely to die from natural causes than from lethal injection.
Judge Carney's ruling echoes former Pennsylvania Gov. Ed Rendell's assertion in 2011 that capital punishment loses any deterrent effect it might have when many years separate a sentence from its execution. The national average is nearly 16 years. On his last day in office, after signing 119 death warrants during his tenure, Rendell challenged the state Legislature to make the death penalty more efficient or get rid of it. To criminals, he said, "our death penalty is simply not a reality."
Today, no matter how heinous the murder, no killer could have a well-founded fear of actually being executed in Pennsylvania. Which leaves little justification to parade victims' families through trials, sentencing phases, and decades-long slogs through hearings and appeals. In the end, those responsible rarely get the punishment to which they're sentenced, and families are victimized a second time by the system.
It's not about the perpetrators so much as the cruel and unusual punishment inflicted on victims' loved ones. For that reason, Judge Carney was right.
Contact Michael Smerconish at www.smerconish.com