Use It or Lose It: A New Milestone on the Road to Abolition

July 17, 2014

The death penalty system is broken, and the increasing recognition of that fact seems to be slowly but perceptibly putting America on the road to abolition. From the unreliability of the guilt determination phase in capital cases to arbitrariness in choosing who among those found guilty will be sentenced to death to breakdowns in the technologies through which we execute people, the operation of the death penalty system seems incompatible with cherished American values. Yesterday’s federal district court decision in Jones v. Chappell adds another dimension to this disturbing picture.

By highlighting the extraordinary delay associated with the time between sentencing and execution and linking it to concerns about arbitrariness in the selection of those who are executed, Judge Carney took judicial notice of California’s broken death penalty system. What he called “the dysfunctional administration” of that system means that no rational purpose is, or can be, served by execution. So few are executed, and so random is the movement of people from sentencing to execution, that any one execution will be arbitrary. Far from executing the “worst of the worst,” there is, he claimed, no rhyme or reason in California’s execution process. And, because California is one of a number of states with large numbers of inmates on death row which rarely execute anyone, Carney’s decision potentially has far reaching implications.

Supporters of the death penalty may try to spin his reasoning into an argument for expediting the death penalty process, but they will have to overcome an increasingly stark fact of the death penalty system in the United States. Today it is no longer clear that, outside of a few southern and border states, Americans have much of an appetite for executions or even for sentencing people to death. As a result, in addition to the 18 states which have abolished capital punishment altogether, nine states that have the death penalty on the books have not executed anyone in more than a decade—Arkansas, Colorado, Kansas, Montana, Nebraska, New Hampshire, Oregon, Pennsylvania, and Wyoming. Moreover, several retentionist states have not imposed a death sentence in the last three years—Colorado, Kentucky, Idaho, Montana, Nebraska, New Hampshire, Utah, and Wyoming.

Where University of Michigan Law Professor Samuel Gross once thought that Americans wanted to sentence many people to death but to execute very few, today the situation seems to be different. And, as Carney put it, the Constitution cannot tolerate a system in which execution is “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.”

America has a choice, use the death penalty and execute those we condemn to death or lose the right to execute anyone. Faced with that choice America is choosing to leave the death penalty system behind us.