Last month Judge Cormac J. Carney  in California ruled that the death penalty as applied in that state is unconstitutional. His ruling lifted a sentence of death from Ernest Dewayne Jones on the grounds that whether or not he was executed:

“…depend(s) upon a factor largely outside (his) control:… how quickly (he has proceeded) through the State’s dysfunctional post-conviction review process.”

While Judge Carney’s comments focus specifically on the Californian system, some of his remarks apply more generally. He discusses the twin precepts of deterrence and retribution that underpin the USA Supreme Court’s support for the death penalty, and concludes:

“…long delays preceding execution frustrate whatever deterrent effect the death penalty may have”

and “inordinate delay frustrates (the) aim” of “(expressing) moral outrage at particularly offensive conduct”.

In reporting this case David Greenwald reminds us that Willie Manning narrowly escaped being put to death last year with his request for DNA testing unmet. He concludes:

“That a case as flawed as this one came within four hours of execution demonstrates that streamlining the death penalty process may expedite executions, but it will also expedite additional problems in the system.”

Judge Carney seeks to reassure us that it is the delays in the Californian system that he objects to, rather than the appeals themselves:

“The post-conviction review process is … vitally important. It serves both the inmate’s interest in not being improperly executed, as well as the State’s interest in ensuring that it does not improperly execute any individual.”

Even if Willie were guilty (and far more so if innocent, as he claims), the 20 years that he has spent in the exceedingly harsh conditions of death row represent extreme punishment. What is more, the logic of Judge Carney’s ruling suggests that if an execution were to be carried out after those 20 years of incarceration, it would not serve the intended purpose of deterrence and retribution, and so would be unconstitutional.

As Judge Carney says,

“When courts have rejected the theory (that extraordinary delay between sentencing and execution violates the Eighth Amendment), they have often not addressed whether any penological purpose of the death penalty continues to be served more than two decades after the death sentence was imposed.”