Ernest DeWayne Jones v. Robert K. Wong

Filing 109

BRIEF filed by Petitioner Ernest DeWayne Jones. Opening Brief on Claim 27 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Plunkett, Cliona)

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Michael Laurence (Bar No. 121854)
Cliona Plunkett (Bar No. 256648)
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
[e-mail]
Attorneys for Petitioner Ernest DeWayne Jones
UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA
ERNEST DEWAYNE JONES,
Petitioner,

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DEATH PENALTY CASE

v.

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Case No. CV-09-2158-CJC

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

PETITIONER’S OPENING BRIEF
ON CLAIM 27

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Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

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TABLE OF CONTENTS

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Table of Authorities ................................................................................................. iii 

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Introduction ................................................................................................................1 

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I. 

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The Resolution of Mr. Jones’s Case Has Been, and Will Be,
Unconscionably Delayed Because the California Death Penalty
System Is Dysfunctional. .................................................................................. 2 
A.  The California Death Penalty System Is Dysfunctional. ........................... 5 

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1.  Delays in the Appointment of Counsel. ................................................ 5 

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2.  Delays in State Court Review of Capital Judgments ............................ 6 

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B.  Defects in the State Process Have Produced Inordinate Delays
in Federal Review of California Capital Cases. ......................................... 8 

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1.  The State Fails to Provide Sufficient Resources for Habeas
Corpus Counsel to Investigate and Present Potentially
Meritorious Claims................................................................................ 9 

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2.  The California Supreme Court’s Failure to Review
Judgments Adequately. ........................................................................13 

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II. 

Mr. Jones’s Execution Following Decades of Incarceration Under
a Death Sentence Would Satisfy Neither of the Penological
Objectives Deemed Essential to Overcome the Eighth Amendment
Prohibition of Cruel and Unusual Punishment...............................................16 

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A.  Eighth Amendment Limitations on Punishment ......................................16 

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B.  Specific Penological Justifications for Execution ...................................18 

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1.  Retribution...........................................................................................19 

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2.  Deterrence ...........................................................................................22 
III.  The Conditions of Confinement to Which Mr. Jones Is Subjected
While Awaiting the Execution of His Sentence, as Well as the
Uncertainties Surrounding His Execution, Constitute Torture in
Violation of the Eighth Amendment. ..............................................................25 

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Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

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A.  The Conditions of Confinement on California’s Death Row
Are Physically and Psychologically Torturous. .......................................26 

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1.  Physical Conditions on East Block. ....................................................26 

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2.  Isolation ...............................................................................................29 

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3.  Deficiencies in Medical and Psychiatric Treatment ...........................30 

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4.  Long Periods of Confinement Under These Conditions
Constitute Debilitating Psychological Torture ...................................31 
B.  The Many Uncertainties Inherent in California’s Death Penalty
Scheme Render Mr. Jones’s Years of Confinement Under
Sentence of Death Psychologically Torturous. ........................................35 
1.  The Uncertainty of the Duration of Mr. Jones’s
Confinement Under Sentence of Death Prior to Execution
or to the Grant of Guilt and/or Penalty Relief Renders His
Confinement Psychologically Torturous.............................................36 
2.  The Uncertainty and Years of Lack of Resolution
Regarding the Method by Which Mr. Jones Will Be
Executed, and the Real Possibility That the Method Will
Result in a Painful Death, Renders Mr. Jones’s
Confinement Under Sentence of Death Psychologically
Torturous. ............................................................................................37 
3.  Uncertainty Whether or Not Mr. Jones Will Be Executed by
Any Execution Method, at Any Time, Renders Mr. Jones’s
Confinement Under Sentence of Death Intolerable for Both
Mr. Jones and the State. ......................................................................41 

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IV.  Mr. Jones’s Execution Would Violate the Equal Protection Clause
Because California Unlawfully Penalizes Those Who Seek Review
of a Capital Conviction With Indefinite Incarceration and
Inordinate Delay. .............................................................................................42 

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Conclusion .............................................................................................................477

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Petitioner’s Opening Brief on Claim 27

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TABLE OF AUTHORITIES

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Cases ............................................................................................................... Page(s)
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 345
(2002) ..................................................................................................................18
Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 106 S. Ct.
2317, 90 L. Ed. 2d 899 (1986)............................................................................44
Barnett v. Super. Ct., 50 Cal. 4th 890, 114 Cal. Rptr. 3d 576 (2010).....................12
Blumberg v. Garcia, 687 F. Supp. 2d 1074 (C.D. Cal. 2010) .................................44
Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977)
.............................................................................................................................43
Brown v. Plata, __ U.S. __, 131 S. Ct. 1910, 179 L. Ed. 2d 969
(2011) ..................................................................................................................30
Ceja v. Stewart, 134 F.3d 1368 (9th Cir. 1998) ......................................................25
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985)............................................................................46
Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982
(1977) ..................................................................................................................19

19

Coleman v. Balkcom, 451 U.S. 949, 101 S. Ct. 2994, 68 L. Ed. 2d 334
(1981) ............................................................................................................21, 33

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Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995)..................................27, 31

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Commonwealth v. O’Neal, 339 N.E.2d 676 (Mass. 1975) (Tauro, J.,
concurring) ..........................................................................................................33
District Attorney v. Watson, 411 N.E.2d 1274 (Mass. 1980) .................................32
Durdines v. Super. Ct., 76 Cal. App. 4th 247, 90 Cal. Rptr. 2d 217
(1999) ..................................................................................................................11
Elledge v. Florida, 525 US 944, 119 S. Ct. 366, 142 L. Ed. 2d 303
(1998) ............................................................................................................25, 43

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Case No. CV-09-2158-CJC

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Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251
(1976) ..................................................................................................................26

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Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal. 1994) ...........................................38

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Francois v. State, 407 So. 2d 885 (Fla. 1981) .........................................................37

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Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346
(1972) .......................................................................................................... passim

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Gomez v. Fierro, 519 U.S. 918, 117 S. Ct. 285, 136 L. Ed. 2d 204
(1996) ..................................................................................................................23
Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859
(1976) .......................................................................................................... passim

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Griffin v. Harrington, 915 F. Supp. 2d 1091 (C.D. Cal. 2012)...............................44

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Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) ....................42

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Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522
(1978) ..................................................................................................................26

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Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073 (9th Cir.
2003) ...................................................................................................................44
Johnson v. Bredesen, 558 U.S. 1067, 130 S. Ct. 541, 175 L. Ed. 2d
552 (2009) ...........................................................................................................21

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Jones v. State, 740 So. 2d 520 (Fla. 1999) ..............................................................43

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In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890) ........................34

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Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d
525 (2008) ...........................................................................................................18

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Ex parte Key, 891 So. 2d 384 (Ala. 2004)...............................................................36

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Knight v. Florida, 528 U.S. 990, 120 S. Ct. 459, 145 L. Ed. 2d 370
(1999) ..................................................................................................................25

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27

Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304
(1995) ..................................................................................................................25

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Lisker v. Knowles, 651 F. Supp. 2d 1097 (C.D. Cal. 2009) ....................................44
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In re Lucas, 33 Cal. 4th 682, 122 Cal. Rptr. 2d 374 (2004) ...................................10

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In re Medley, 134 U.S. 160, 10 S. Ct. 384, 33 L. Ed. 835 (1890) .....................32, 34

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Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006) .......................................38
In re Morgan, 50 Cal. 4th 932, 237 P.3d 993 (2010) ..........................................8, 21

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O’Neill v. Vermont, 144 U.S. 323, 12 S. Ct. 693, 36 L. Ed. 450 (1892) ................17

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People v. Anderson, 6 Cal. 3d 628 (1972)...............................................................32

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People v. Chessman, 52 Cal. 2d 467 (1979) ...........................................................32

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People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259 (1995) ...............................13
People v. Romero, 8 Cal. 4th 728, 35 Cal. Rptr. 2d 270 (1994) .............................13
People v. Simms, 736 N.E.2d 1092 (Ill. 2000) ........................................................22

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Phillips v. Vasquez, 56 F.3d 1030 (9th Cir. 1995) ..................................................42

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Plata v. Brown, Case No. C-01-1351 TEH (N.D. Cal.) ..........................................27

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Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59
(1981) ..................................................................................................................26

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Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577
(1966) ..................................................................................................................43

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Rivers v. State, 298 S.E.2d 1 (Ga. 1982) .................................................................37

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Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855
(1996) ..................................................................................................................45

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Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005) ..................................................................................................................18
Sims v. Dep’t of Corrections and Rehabilitation, 216 Cal. App. 4th
1059, 157 Cal. Rptr. 3d 409 (2013)....................................................................37
Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340
(1984) ..................................................................................................................19
State v. Cropper, 225 P.3d 579 (Ariz. 2010)...........................................................36
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Case No. CV-09-2158-CJC

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State v. Hamlet, 321 S.E.2d 837 (N.C. 1984)..........................................................36

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In re Steele, 32 Cal. 4th 682, 10 Cal. Rptr. 3d 536 (2004) .....................................11

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Thompson v. Enomoto, 815 F.2d 1323 (9th Cir. 1987) ...........................................26
Thompson v. McNeil, 129 S. Ct. 1299, 129 S. Ct. 1299 (2009) ........................25, 27

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Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984) .................................27

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Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) .................21, 31

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United States v. Windsor, __ U.S. __, 133 S. Ct. 2675, 186 L. Ed. 2d
808 (2013) ...........................................................................................................44

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Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793
(1910) ..................................................................................................................16
Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337
(1949) ..................................................................................................................19
Statutes
Cal. Gov't Code § 68662..........................................................................................21

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Cal. Gov’t Code § 68666(b) ....................................................................................10

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Cal. Penal Code § 1054.9 ........................................................................................11

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Cal. Penal Code § 1484 ...........................................................................................11

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Cal. Penal Code § 3604 ...........................................................................................37
Tenn. Code Ann. § 40-23-114 (May 22, 2014) .......................................................39

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Other Authorities

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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 Debacle, 44 Loy. L.A. L. Rev. S41 (2011) ...............10, 15

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Arthur L. Alarcón, Remedies for California’s Death Penalty
Deadlock, 80 S. Cal. L. Rev. 697 (2007)
........................................................................................................................3, 12, 22
Clinton T. Duffy, Eighty-Eight Men and Two Women 254 (1962).........................32
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Craig Haney & Philip Zimbardo, The Past and Future of U.S. Prison
Policy: Twenty-Five Years After the Stanford Prison Experiment,
33 Am. Psychologist 709 (1998) ........................................................................31
Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On
Sentence, 46 Case W. Res. L. Rev. 1 (1995) ......................................................21

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Terry A. Kupers, Trauma and its Sequelae in Male Prisoners: Effects
of Confinement, Overcrowding, and Diminished Services, 66 Am.
J. Orthopsychiatry 189 (1996) ............................................................................30

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Lewis Powell, Capital Punishment, 102 Harv. L. Rev. 1035 (1989) .....................22

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Radelet & Lacock, Recent Developments: Do Executions Lower
Homicide Rates?: The Views of Leading Criminologists, 99 J.
Crim. L. & Criminology 489 (2009) ..................................................................24

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Angela Sun, Note, “Killing Time” in the Shadow of Death: Why
Systematic Preexecution Delays on Death Row are Cruel and
Unusual, 113 Colum. L. Rev. 1585 (2013) ........................................................36

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Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

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INTRODUCTION

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On April 10, 2014, this Court ordered the parties to brief issues relating to

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Claim 27. Order re: Briefing and Settlement Discussions, ECF No. 103 (Apr. 10,

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2014).1

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sentence in this and other California death penalty cases” – which undermine the

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stated purposes for capital punishment – and the uncertainty of whether Mr. Jones

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will ever be executed are “intolerable.” ECF No. 103 at 1, 4.

In the order, this Court noted that the “long delays in execution of

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Mr. Jones has spent nineteen years awaiting final review of his conviction

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and sentence of death because California’s death penalty system is dysfunctional.

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Moreover, because California’s appellate and postconviction review process fails

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to correct constitutional errors in capital cases, Mr. Jones will spend several more

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years litigating his convictions and sentences in this Court and on appeal. At the

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end of this lengthy process, this Court likely will grant Mr. Jones a new trial, as

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the federal courts have done in the majority of California capital habeas corpus

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proceedings.

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inability to create a lawful execution procedure renders it gravely uncertain when

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or whether Mr. Jones’s execution will ever be conducted. California’s appellate

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and post-conviction process thus has failed to provide Mr. Jones with a full, fair,

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and timely review of his conviction and sentence, his confinement is rendered

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unnecessarily lengthy, torturous, and inhumane, and his execution is

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unconstitutional.

Even should the state prevail in these proceedings, the state’s

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The Court also ordered the parties to meet and confer to discuss “whether
mediation or settlement discussions would be appropriate.” ECF No. 103 at 5.
As explained the in the Joint Statement re: Mediation and Settlement, petitioner
believes that such discussions are appropriate. ECF. No. 106 at 2. Respondent,
however, has declined to discuss possible settlement of the case. Id.
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Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

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I. THE RESOLUTION OF MR. JONES’S CASE HAS BEEN,

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AND WILL BE, UNCONSCIONABLY DELAYED BECAUSE THE

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CALIFORNIA DEATH PENALTY SYSTEM IS DYSFUNCTIONAL.

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In August 1992, Mr. Jones – then twenty-eight years old – was arrested and

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charged with capital murder. 1 Clerk’s Transcript (CT) 87-89; Exhibits to Petition

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of Writ of Habeas Corpus, Notice Of Lodging (NOL) at C.2, Ex. 26 at 268. He

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was formally sentenced to death on April 2, 1995, and the review process of his

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judgment began. 2 CT 504. Over nineteen years later, judicial review of the

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constitutionality of his convictions and sentences continues and will continue for

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the foreseeable future. After being in custody for almost twenty-two years, Mr.

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Jones will turn fifty years old on June 27, 2014. Exhibits to Petition of Writ of

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Habeas Corpus, NOL at C.2, Ex. 26 at 268.

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The extraordinary lengthy period of judicial review that Mr. Jones has

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experienced is typical of California death penalty cases. Indeed, former California

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Supreme Court Chief Justice Ronald M. George described the state’s mechanism

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for appellate and habeas corpus review of death judgments as “dysfunctional,” a

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view endorsed by the bi-partisan California Commission on the Fair

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Administration of Justice. California Commission on the Fair Administration of

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Justice, Report and Recommendation on the Administration of the Death Penalty

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in California (Gerald Uelmen ed. 2008) (“Commission Report”), attached as

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Exhibit (Ex.) 1 at 125.2 The Commission drew upon the seminal study conducted

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The California Commission on the Fair Administration of Justice, created
by Senate Resolution No. 44 of the 2003-04 Session of the California State
Senate, extensively studied the administration of capital punishment in California
and addressed many of the issues implicated by Claim 27. The Commission was
chaired by former Attorney General John K. Van de Kamp and was composed of
a judge, prosecutors, criminal defense lawyers, elected officials, law enforcement
officials, academicians, representatives of victims’ organizations, and other
concerned individuals. After conducting three public hearings at which seventycontinued…

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Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

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by Senior Judge Arthur Alarcón,3 to identify multiple defects in the California

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death penalty process. The Commission identified numerous defects, including

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the failure to adequately recruit and compensate counsel who are able and willing

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to accept appointments in appellate and habeas corpus proceedings, the prejudicial

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delays in the appointment of counsel, the California Supreme Court’s inability to

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review the automatic appeals and habeas corpus proceedings in a timely fashion,

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and the inability to provide death-row inmates with an effective forum for

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litigating potentially meritorious claims, which increases the delay during federal

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judicial review.4 Ex. 1 at 127-48.

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As a result, the “elapsed time between judgment and execution in California

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two individuals testified and considering voluminous documentation, the
Commission in 2008 issued detailed and extensive recommendations to repair the
flaws in California’s death penalty system. The critical recommendations for
addressing the delays in the administration of that system – expanding the pool of
attorneys willing and qualified to accept appointments in capital cases, ensuring
adequate resources for the adjudication of capital cases at the trial and postconviction stages, and reducing the likelihood of constitutional errors – were
unanimously approved by the Commissioners. Ex. 1 at 126-48. (In accordance
with this Court’s Local Rules, citation to the Report are to the page numbers
affixed to the exhibit and not the internal pagination used by the Commission.)
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Arthur L. Alarcón, Remedies for California’s Death Penalty Deadlock, 80
S. Cal. L. Rev. 697 (2007).
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The current California death penalty scheme is a product of Proposition 7,
better known as the “Briggs Initiative,” which superseded the 1977 death penalty
statute. Ex. 1 at 120. The Commission noted that the Briggs Initiative “gives
broad discretion to prosecutors to decide whether a homicide should be
prosecuted as a death penalty case.” Ex. 1 at 131 (noting that “87% of
California’s first-degree murders are ‘death eligible’”); see also ECF No. 84 at
129-45 (describing the challenge to the California statute contained in Claim 24);
ECF No. 100 at 238-44 (same). This broad discretion stands in sharp contrast to
other states’ statutes, see, e.g., ECF No. 84 at 129-45, and “has opened the
floodgates beyond the capacity of our judicial system,” Ex. 1 at 149.
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Case No. CV-09-2158-CJC

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exceeds that of every other death penalty state,” averaging over two decades for

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the handful of executions that have occurred in California. Ex. 1 at 125, 127. As

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the Commission noted, the time between sentencing and execution in California is

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misleadingly low because so few capitally sentenced defendants have been

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executed. Ex. 1 at 127. Moreover, as a result of the inherent defects in the system

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that continue to escalate, the time frame for carrying out executions undoubtedly

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will reach, and exceed, three decades from the imposition of sentence. Ex. 15 ¶5

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(noting that there currently are 493 capital inmates whose judgment was imposed

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before June 9, 1994, and 318 whose judgment was imposed before June 9, 1989);

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see also Ex. 15 ¶15 (noting that the delay between sentencing and disposition of

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state habeas corpus petitions resolved between 2008 and 2014 was 17.2 years).

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This systemic failure is a direct consequence of inadequacies in California’s

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death penalty system and the state’s inability or unwillingness to fund the system

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adequately to provide representation and court resources. As the Commission on

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the Fair Administration of Justice concluded, using “conservative figures,” $232.7

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million annually must be allocated to fund the current dysfunctional process, with

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a several-year phase-in plan.

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Commission’s findings in 2008, the Governor and the State Legislature have failed

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to allocate any additional funding to remedy the defects in the system, and the

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unconscionable delays have been exacerbated. Ex. 15 ¶3.5

Ex. 1 at 158.

Despite the publication of the

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Initiative efforts to remedy the dysfunctional system similarly have failed.
In November 2012, Proposition 34, which would have abolished capital
punishment in California, failed by a narrow margin. See California Secretary of
State, State Ballot Measures, 2012 General Election Results (available at
http://www.sos.ca.gov/elections/sov/2012-general/15-ballot-measures.pdf) (last
visited June 9, 2014). In December 2013, death proponents sought to qualify an
initiative on the November 2014 ballot that would have imposed severe and
unworkable limitations on the presentation and review of challenges to capital
judgments, but were unsuccessful in gaining sufficient signatures to qualify the
continued…

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Case No. CV-09-2158-CJC

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A.

The California Death Penalty System Is Dysfunctional.

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1. Delays in the Appointment of Counsel.

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Mr. Jones experienced substantial delays in the appointment of counsel to

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represent him in his automatic appeal and habeas corpus proceedings. On April

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13, 1999, more than four years after judgment was imposed, the California

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Supreme Court appointed counsel to represent Mr. Jones in his automatic appeal.

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On October 20, 2000, over five years after Mr. Jones was sentenced to death, the

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California Supreme Court appointed the Habeas Corpus Resource Center to

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represent him in state habeas corpus proceedings.

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The delay in appointment of counsel for Mr. Jones is typical of the

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California process. The Commission concluded that approximately three to five

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years elapses after judgment is imposed before direct appeal counsel is appointed

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and eight to ten years elapses before the appointment of habeas corpus counsel.

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Ex. 1 at 133. Since the Commission’s Report, the backlog in the appointment of

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counsel and the resulting delay have increased exponentially, particularly with

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respect to the appointment of habeas corpus counsel. As of June 9, 2014, there

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were 70 condemned prisoners without counsel for the appellate proceedings in the

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California Supreme Court and 352 individuals without habeas corpus counsel.6

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Ex. 15 ¶7 & Table/Figure 1. On average, the 77 inmates whose direct appeals are

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concluded and who lack habeas corpus counsel have waited 15.81 years after their

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measure for the ballot. See, e.g., California Death-Penalty Reform Initiative
Pushed
to
2016,
KCRA.com,
May
10,
2014
(available
at
http://www.kcra.com/news/local-news/news-sacramento/calif-deathpenaltyreform-initiative-pushed-to-2016/25914676#!WEqHc) (last visited June 9, 2014).
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At the time that Mr. Jones was appointed habeas corpus counsel in 2000,
there were approximately 215 inmates on California’s death row without habeas
corpus counsel. Ex. 15 ¶6.
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Case No. CV-09-2158-CJC

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sentencing, still to be without the appointment of habeas corpus counsel; 160

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inmates have been without habeas corpus counsel for more than ten years, and one

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inmate continues to lack counsel despite being sentenced in 1992, almost 24 years

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ago. Ex. 15 ¶8.7

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The Commission on the Fair Administration of Justice unanimously found

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that backlog and delays in the appointment of counsel to handle capital cases were

7

attributable to the failure to provide sufficient funding to expand agency counsel,

8

or to fully compensate private attorneys in a manner that allows them to provide

9

representation that complies with their ethical obligations to their clients. Ex. 1 at

10

127-28, 145-48. Because of the dearth of private counsel, the Commission found

11

that the only means of eliminating the backlog of unrepresented inmates was to

12

expand the HCRC with a five-fold increase in its annual state budget. Ex. 1 at

13

127, 146-47. In contrast to the Commission’s recommendations, however, the

14

reality is that after sustaining several years of reductions, the HCRC’s annual

15

budget has decreased to $12.7 million, and the office lacks funding to fully staff its

16

legislatively established attorney positions.

17

2. Delays in State Court Review of Capital Judgments

18

The Commission found that there were substantial delays in the California

19
20
21
22
23
24
25
26
27
28

7

The number of cases without habeas corpus counsel increases yearly
because appointments do not keep pace with the number of new judgments of
death and the need to replace private habeas corpus counsel who are unable to
continue representation. Over the past five years, the State has averaged 22 death
judgments per year, while over the same time period, there has been an average of
10 annual appointments to represent death-row inmates in their habeas corpus
proceedings. Ex. 15 ¶9. Adding to the backlog of inmates without counsel is the
need to replace counsel who withdrew from representation before the habeas
corpus proceedings were completed. Since 2003, of the 192 cases in which
habeas corpus petitions have been filed, 40 petitioners lost their initially
appointed private counsel and required replacement counsel – a replacement rate
of 21 percent. . Ex. 15 ¶10.
6
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Supreme Court’s resolution of direct appeals and habeas corpus proceedings in

2

capital cases. Ex. 1 at 133-34. The Commission noted that there was “a backlog

3

of 80 fully briefed automatic appeals in the death cases awaiting argument” and

4

that the delay “averages 2.25 years.” Ex. 1 at 133. The Commission similarly

5

noted that the “California Supreme Court currently has 100 fully briefed habeas

6

corpus petitions awaiting decision” and “there is now an average delay of 22

7

months between the filing of the petition and the decision of the California

8

Supreme Court.” Ex. 1 at 133-34.

9

In Mr. Jones’s case, the delay was substantially greater than the Commission

10

identified. Mr. Jones filed his petition in the California Supreme Court on October

11

21, 2002,8 and informal briefing was completed on December 8, 2003.9 Six-and-a-

12

half years after the filing of the petition and sixty-three months after the briefing

13

was completed, the California Supreme Court denied the petition on March 11,

14

2009, without conducting an evidentiary hearing or issuing a published decision.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

8

At the time of filing the state petition, the California Supreme Court’s
policies provided that Mr. Jones’s petition would be considered timely if it was
filed two years from the date of appointment of counsel. The California Supreme
Court has since determined that the minimum amount of time required to
investigate and present legally sufficient challenges to a petitioner’s conviction,
sentence, and confinement is three years. Supreme Court Policies Regarding
Cases Arising from Judgments of Death, Policy 3 Timeliness Standard 1-1.1 (as
amended Nov. 30, 2005) (available at http://www.courts.ca.gov/documents/
PoliciesMar2012.pdf) (last visited June 9, 2014).
9

California law authorizes a court to request that the state file an “informal
response” to a habeas corpus petition; if the court requests an informal response,
the petitioner is entitled to file a reply. Cal. R. Ct. 4.551(b)(1) & (2) (West 2014).
The time taken to complete the informal briefing in Mr. Jones’s case was typical
of other capital cases. For those petitions filed in 2004 – the same year that Mr.
Jones filed his petition – respondent took an average of .53 years to file the
informal response and petitioners took an average of .69 years to file the reply.
Ex. 15 ¶12.
7
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

The California Supreme Court’s delay in resolving Mr. Jones’s petition was well

2

above the 22 month average cited by the Commission and the 45 month average

3

that the court took to resolve the other capital habeas petitions filed in 2004. The

4

California Supreme Court’s decision came over 14 years after Mr. Jones was

5

sentenced to death.

6

Moreover, the California Supreme Court’s delay in resolving capital habeas

7

corpus petitions has substantially increased since the Commission’s Report. The

8

California Supreme Court currently has 176 pending capital habeas cases, with an

9

average pending time of 4.07 years.10 Ex. 15 ¶13. Of those cases, 107 have been

10

fully briefed awaiting decision for an average of 4.16 years (or 50 months) since

11

the reply to the informal response was filed. Ex. 15 ¶13 & Table/Figure 2. For the

12

68 capital habeas corpus petitions that the California Supreme Court has resolved

13

from 2008 through the filing of this Brief, the delay is equally staggering. The

14

average time between the completion of briefing and the California Supreme

15

Court’s decision is 3.98 years, or 47.8 months. Ex. 15 ¶14. Thus, the Supreme

16

Court’s delay in resolving capital habeas petitions has more than doubled in the

17

six years since the Commission Report.

18

B.

Defects in the State Process Have Produced Inordinate Delays in

19

Federal Review of California Capital Cases.

20

The delay directly attributable to the state’s refusal to provide sufficient

21

counsel and judicial resources to review capital judgments is crippling This and

22

the state’s other defects have created substantially greater delays in federal review

23

of these cases. As early as 1999, researchers identified the costs to the federal

24
25
26
27
28

10

This number excludes initial petitions that the California Supreme Court
permits to be filed to toll the federal statute of limitations period while the court
locates counsel willing to accept an appointment, counsel files an amended
petition within the court’s timeliness policies, and the court resolves the amended
petition. See, e.g., In re Morgan, 50 Cal. 4th 932, 237 P.3d 993 (2010).
8
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

judiciary resulting from the failure of the California system to fund and resolve

2

challenges to death penalty judgments. The Administrative Office of the United

3

States

4

extraordinarily high federal cost of review of California capital cases. Ex. 12. The

5

findings demonstrate the effect that California’s “perfunctory post-conviction

6

process” has on the federal judiciary. Ex. 12 at 423; see also Ex. 12 at 492 (noting

7

that “California has unique factors contributing to habeas petition and evidentiary

8

hearing costs [in capital habeas corpus proceedings] that are not common to the

9

other Ninth Circuit states”); Ex. 12 at 508 (noting that part of the significant cost-

10

differential before California capital cases and federal court and non-California

11

cases “may be due to the new discovery and investigation at the federal level

12

overlooked at the state post-conviction level”).

13

Courts

commissioned

PriceWaterhouseCooper

to

examine

the

1. The State Fails to Provide Sufficient Resources for Habeas Corpus

14

Counsel to Investigate and Present Potentially Meritorious Claims.

15

The Commission on the Fair Administration of Justice found that the state’s

16

death penalty system fails to adequately fund counsel in a manner that satisfies the

17

American Bar Association guidelines and fully compensate attorneys for their

18

work. Ex. 1 at 146. Under California Supreme Court guidelines, private counsel

19

may choose one of two means of compensation: a time-and-cost basis or a fixed

20

fee rate.

21

Criminal Appellants in the California Supreme Court; Guidelines for Fixed Fee

22

Appointments, on Optional Basis, to Automatic Appeals and Related Habeas

23

Corpus Proceedings in the California Supreme Court.11 Under the first system,

24

attorneys are compensated at a rate of $145 per allowable hour, but counsel are

25

subject to unrealistic “allowable hours benchmarks,” limiting the number of hours

Payment Guidelines for Appointed Counsel Representing Indigent

26
27
28

11

The guidelines are available on the Court’s website: http://www.courts
.ca.gov/documents/PoliciesMar2012.pdf (last visited June 9, 2014).
9
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

that can be spent on client communication, record review, and petition preparation.

2

Payment Guidelines for Appointed Counsel Representing Indigent Criminal

3

Appellants in the California Supreme Court, Parts II.A, II.I.3(ii).

4

appointed habeas counsel who choose to be compensated on a fixed fee and

5

expense basis are assigned one of three categories, ranging from $85,000 to

6

$127,000, depending on factors relating to the size of the record and nature of the

7

case. See Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic

8

Appeals and Related Habeas Corpus Proceedings in the California Supreme

9

Court. These fees include any assistance by second counsel and all incidental

10

expenses (other than for habeas corpus investigation) incurred during the

11

representation. Guidelines for Fixed Fee Appointments, Guideline 2. Under both

12

payment plans, compensation rates for services of investigators and experts are

13

strictly limited, id. at Part III.C.7.a., with a maximum of $50,000. Id.; Cal. Gov’t

14

Code § 68666(b) (“The Supreme Court may set a guideline limitation on

15

investigative and other expenses allowable for counsel to adequately investigate

16

and present collateral claims of up to fifty thousand dollars ($50,000) without an

17

order to show cause.”).

Private

18

These hourly benchmarks and payments fall far short of the actual costs

19

necessary to adequately perform the work that is ethically required in habeas

20

corpus cases. The Commission Report noted that in a successful habeas petition in

21

In re Lucas, 33 Cal. 4th 682, 122 Cal. Rptr. 2d 374 (2004), the law firm of Cooley

22

Godward LLP provided 8,000 hours of pro bono attorney time, 7,000 hours of

23

paralegal time, and litigation expenses of $328,000. Ex. 1 at 146 n.71. Other

24

estimates of how much adequate investigation costs range from $250,000 to

25

$300,000 – again, far above the $50,000 permitted by statute. Arthur L. Alarcón

26

& Paula M. Mitchell, Executing the Will of the Voters?: A Roadmap to Mend or

27
28
10
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

End the California Legislature’s Multi-Billion-Dollar Debacle, 44 Loy. L.A. L.

2

Rev. S41, S621 n.624 (2011).12

3

In addition to lacking sufficient funding to conduct an adequate

4

investigation in state habeas corpus proceedings, condemned inmates are

5

hampered in their ability to develop the factual predicate of their claims. Absent

6

the issuance of an order to show cause, California petitioners lack the power to

7

issue subpoenas and compel witness testimony. Cal. Penal Code § 1484 (West

8

2014); Durdines v. Super. Ct., 76 Cal. App. 4th 247, 252, 90 Cal. Rptr. 2d 217

9

(1999) (holding that the court lacked power to solicit trial counsel’s declaration

10

before the issuance of a writ or an order to show cause). Thus, the primary

11

mechanism for postconviction discovery is California Penal Code section 1054.9.

12

Section 1054.9 provides that, prior to filing their state habeas petitions, capital

13

petitioners shall have reasonable access to materials they would have been entitled

14

to receive at the time of trial, to the extent that such materials are currently in the

15

possession of the prosecution or law enforcement authorities who were involved in

16

the investigation or prosecution of the case. Cal. Penal Code § 1054.9 (West

17

2014); In re Steele, 32 Cal. 4th 682, 697, 10 Cal. Rptr. 3d 536 (2004). However,

18

California courts – including the state Supreme Court – have limited the scope of

19

available discovery by means of procedural hurdles that are frequently impossible

20
21
22
23
24
25
26
27
28

12

The fact that these hours and expenses are necessary has been made clear
under guidelines issued by the federal courts, the American Bar Association, and
case law mandating a full investigation of all potentially meritorious issues. See
American Bar Association, Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, Guideline 10.15.1 (Revised Edition,
Feb. 2003) (ABA Guidelines) (requiring postconviction counsel to litigate all
arguably meritorious issues, present issues in a manner to preserve them for
subsequent review, and aggressively investigate “all aspects of the case”); see
also ABA Guideline 10.7 (Investigation); ABA Guideline 10.8 (The Duty to
Assert Legal Claims).
11
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

for petitioners to surmount.

2

Chief among these limitations is the California Supreme Court’s mandate

3

that petitioners are not entitled to receive material that would have been

4

discoverable at trial, but which has never been disclosed, unless they are able to

5

demonstrate a basis to believe that the material exists (or existed at trial). Barnett

6

v. Super. Ct., 50 Cal. 4th 890, 901, 114 Cal. Rptr. 3d 576 (2010). In this way,

7

postconviction discovery in California capital cases is determined by fiat of a

8

guessing game. Petitioners can access discoverable material only to the extent that

9

habeas counsel is able to divine sufficient clues to the existence of material that

10

neither their counsel nor they have ever seen, but to which they would

11

unquestionably be entitled under the discovery rules were the material’s existence

12

known to them.

13

As a result of these financial and discovery limitations, capital habeas

14

corpus petitioners in California initiate federal habeas corpus litigation without

15

having fully developed all potentially meritorious claims in state court. Instead,

16

such claims can be developed in the first instance only after death-row inmates

17

have access to federal resources. For its part, the California Attorney General’s

18

Office routinely has insisted that habeas corpus petitioners return to the California

19

Supreme Court to exhaust state remedies. See, e.g., Ex. 12 at 422 (noting that the

20

“strategy of the California Attorney General’s Office in litigating claims [by

21

raising non-exhaustion] is believed to have a major impact on the costs of cases in

22

California”); Ex. 12 at 424 (noting that attorneys report that “the California

23

Attorney General’s Office will rarely waive the exhaustion defense”). Since 1978,

24

condemned inmates have filed 267 exhaustion petitions in the California Supreme

25

Court, and the average time that the inmate remains in state court following the

26

filing of an exhaustion petition is 3.19 years. Ex. 15 ¶16; see also Alarcón,

27

Remedies for California Death Row Deadlock, 80 S. Cal. L. Rev 697 at 736

28

(2007) (finding an average of three-year delay resulting from need “to exhaust
12
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1
2
3

claims in seventy-four percent” of the federal habeas corpus cases).
2. The California Supreme Court’s Failure to Review Judgments
Adequately.

4

Unlike the practice of virtually all death-penalty states, the California

5

Supreme Court resolves in the first instance habeas corpus petitions challenging

6

capital judgments. Following the filing of a petition, California law requires the

7

court to assume “the petition’s factual allegations are true,” and determine whether

8

“the petitioner would be entitled to relief.” People v. Duvall, 9 Cal. 4th 464, 474-

9

75, 37 Cal. Rptr. 2d 259 (1995). When “a habeas corpus petition is sufficient on

10

its face (that is, the petition states a prima facie case on a claim that is not

11

procedurally barred), the court is obligated by statute to issue a writ of habeas

12

corpus” or an order to show cause. People v. Romero, 8 Cal. 4th 728, 737-38, 35

13

Cal. Rptr. 2d 270 (1994). In practice, however, the California Supreme Court

14

summarily denies the overwhelming majority of capital habeas corpus petitions

15

without any explication of its reasoning after reviewing only the petition and,

16

usually, the requested informal briefing. Alarcón, Remedies for California’s Death

17

Row Deadlock, 80 S. Cal. L. Rev at 741; see also Ex. 1 at 145. According to the

18

Commission’s Report, the Supreme Court historically has issued orders to show

19

cause in fewer than eight percent of habeas corpus proceedings, and held

20

evidentiary hearings in less than five percent of the cases. Ex. 1 at 145; see also

21

Judge Arthur L. Alarcón, Remedies for California’s Death Row Deadlock, 80 S.

22

Cal. L. Rev. at 741.

23
24

Judge Alarcón explained the problems that these practices have on federal
review of California death penalty cases:

25

The absence of a developed factual record and an articulated

26

analysis from the California Supreme Court regarding the reasons

27

for denying relief can contribute to lengthier delays when the

28

prisoner seeks relief in federal court or in subsequent state habeas
13
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

proceedings. As a result of its overwhelming backlog of death

2

penalty cases and its duty to review civil and other criminal cases on

3

appeal, the Supreme Court has been forced to reject the requests

4

from federal judges in the Ninth Circuit asking that orders denying a

5

petition for a writ of state habeas corpus spell out the reasons for the

6

denial. Chief Justice Ronald George explained in response to an

7

inquiry from U.S. Senator Dianne Feinstein “that drafting and

8

reviewing an order containing more information than the basic

9

ground for denying relief consumes far more time on the part of both

10

staff and the justices, to the detriment of the court’s performance of

11

its responsibilities in noncapital cases.”

12

Justice George’s response, Senator Feinstein wrote to Governor

13

Arnold Schwarzenegger requesting his assistance in addressing the

14

problem of the “lengthy and unnecessary delays” in processing death

15

penalty cases in California because of inadequate funding. Senator

16

Feinstein concluded that “[t]he absence of a thorough explanation of

17

the [California Supreme] Court’s reasons for its habeas decisions

18

often requires federal courts to essentially start each federal habeas

19

death penalty appeal from scratch, wasting enormous time and

20

resources.”

After receiving Chief

21

Alarcón, Remedies for California’s Death Row Deadlock, 80 S. Cal. L. Rev at

22

742-43 (footnotes omitted); see also Ex. 1 at 134 (noting that “much of this delay

23

[in federal court] is attributable to the absence of a published opinion and/or an

24

evidentiary hearing in the state courts. Often, the federal courts cannot ascertain

25

why state relief was denied”). Moreover, the failure to resolve factual disputes in

26

state court has compelled federal courts to expend substantial resources to

27

ascertain the disputed facts, determine whether an evidentiary hearing is

28

warranted, and conduct one if necessary. Ex. 1 at 160 (“The California Supreme
14
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Court’s summary denial of habeas petitions without evidentiary hearings and

2

without any explanation of the reasons does not save time, since it adds to the

3

delay in resolution of the inevitable subsequent federal habeas corpus claim.”).

4

Critically, the California Supreme Court has failed to correct even the most

5

obvious prejudicial errors in capital cases. Since 1978, the court has resolved the

6

merits of 729 of the 1003 habeas corpus petitions filed by condemned inmates.

7

Ex. 15 ¶17. Of the 729 cases, the court has issued orders to show cause in 99

8

cases (13.6%), and ordered evidentiary hearings in 45 cases (6.2%). Of these

9

cases, the California Supreme Court has granted some form of relief in capital

10

habeas corpus proceedings only eighteen times or in 2.5% of the cases it has

11

resolved. Ex. 15 ¶17. In contrast, the Arizona Supreme Court “reverses two out of

12

every five sentences it reviews.” Ex. 14.

13

As a result, many years after the imposition of sentence, federal courts have

14

been required to conduct constitutionally mandated scrutiny of capital judgments.

15

Not surprisingly, given the California Supreme Court’s failure to find and correct

16

constitutional error, federal courts have granted relief in habeas corpus

17

proceedings arising from California death judgments in a substantial majority of

18

the cases reviewed. As reported by the Commission on the Fair Administration of

19

Justice in 2008, “federal courts have rendered final judgment in 54 habeas corpus

20

challenges to California death penalty judgments” and “[r]elief in the form of a

21

new guilt trial or a new penalty hearing was granted in 38 of the cases, or 70%.”

22

Ex. 1 at 126. Between the 2008 publication of the Commission’s report and an

23

article on California’s death penalty system authored by Judge Alarcón and Paula

24

M. Mitchell in 2011, “federal habeas corpus relief has been granted in five

25

additional cases, and denied in four additional cases, all of which are final

26

judgments, making the rate at which relief has been granted 68.25%.” Arthur L.

27

Alarcón & Paula M. Mitchell, Executing the Will of the Voters?: A Roadmap to

28

Mend or End the California Legislature’s Multi-Billion-Dollar Debacle, 44 Loy.
15
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

L.A. L. Rev. S41, S55 n.26 (2011).

2
II. MR. JONES’S EXECUTION FOLLOWING DECADES OF

3

INCARCERATION UNDER A DEATH SENTENCE WOULD

4

SATISFY NEITHER OF THE PENOLOGICAL OBJECTIVES

5

DEEMED ESSENTIAL TO OVERCOME THE EIGHTH

6

AMENDMENT PROHIBITION OF CRUEL AND UNUSUAL

7

PUNISHMENT.

8

The psychological impact of Mr. Jones’s decades-long confinement,

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

conscious as he is of the state’s declared intention to escort him from his cell and
execute him at some indefinite future date, renders his protracted warehousing as a
condemned man a punishment materially different from either the punishment of
death or the punishment of life in prison without possibility of parole. It is more
likely that a condemned prisoner will die of natural or other causes than be
executed by the state. This statistical likelihood has transmuted a California death
sentence into a sentence of life imprisonment with no possibility of parole but
slight possibility of execution. California has never enacted such a Damoclean
penalty, neither could it do so. The de facto existence of this third penalty gives
rise to two distinct constitutional violations: execution of a death sentence
following decades-long incarceration fails to serve the penological purposes that
the Supreme Court has declared indispensible to justifying application of the death
penalty without offense to the Eighth Amendment; and further, prolonged
incarceration under the uncertain but unremitting threat of execution is torturous
and constitutes cruel and unusual punishment within the meaning of the Eighth
Amendment.
A.

Eighth Amendment Limitations on Punishment
The determination that a specific punishment does not per se violate the

Constitution does not exempt the manner in which that punishment is applied from
16
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

continued Eighth Amendment scrutiny. See, e.g., Weems v. United States, 217 U.S.

2

349, 378, 30 S. Ct. 544, 54 L. Ed. 793 (1910) (noting importance of judicial

3

deference to legislative power, “unless that power encounters in its exercise a

4

constitutional prohibition. In such case, not our discretion, but our legal duty,

5

strictly defined and imperative in its direction, is invoked.”). Thus, for example,

6

although the Eighth Amendment provides that the imposition of monetary fines is

7

a constitutional exercise of state power, it also establishes that some fines may be

8

unconstitutional.

9

circumstances prohibit execution as a sanction, the Supreme Court has repeatedly

10

articulated the qualification that, in order to avoid the ban on cruel and unusual

11

punishment, the penalty must serve some penological end that could not be

12

otherwise accomplished. In Mr. Jones’s case, it does not.

In finding that the Eighth Amendment does not in all

13

The primary concern of the Eighth Amendment is excessive punishment.

14

See, e.g., O’Neill v. Vermont, 144 U.S. 323, 340, 12 S. Ct. 693, 36 L. Ed. 450

15

(1892) (“The whole inhibition is against that which is excessive, either in the bail

16

required, or fine imposed, or punishment inflicted.”). Moreover, “[a] penalty must

17

accord with ‘the dignity of man,’ which is ‘the basic concept underlying the Eighth

18

Amendment.’ (Citation omitted.) This means, at least, that the punishment not be

19

‘excessive.’” Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2929-30, 49 L.

20

Ed. 2d 859 (1976) (plurality opinion).

21

In the capital context, such excesses may inhere in the infliction of pain and

22

suffering of such extremity that civilized people cannot tolerate them. See, e.g.,

23

Furman v. Georgia, 408 U.S. 238, 332, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)

24

(Marshall, J., concurring). Punishment similarly offends the Eighth Amendment

25

when it is inflicted in excess of what is necessary to achieve legitimate penological

26

goals. See, e.g., Gregg, 428 U.S. at 183 (“the sanction imposed cannot be so

27

totally without penological justification that it results in the gratuitous infliction of

28

suffering”) (citing Wilkerson v. Utah, 99 U.S. 130, 135-36, 25 L. Ed. 345 (1878),
17
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

In re Kemmler, 136 U.S. 436, 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890)); Furman,

2

408 U.S. at 280 (Brennan, J., concurring) (punishment is excessive within

3

meaning of Punishments Clause if it “serves no penal purpose more effectively

4

than a less severe punishment”); Furman, 408 U.S. at 312 (White, J., concurring)

5

(finding that when death penalty ceases realistically to further social ends it was

6

enacted to serve, it violates the Eighth Amendment, results in “pointless and

7

needless extinction of life with only marginal contributions to any discernible

8

social or public purposes,” and is “patently excessive and cruel and unusual

9

punishment violative of the Eight Amendment”).

As set forth above, the

10

administration of capital punishment in California has evolved to make impossible

11

the timely resolution of capital cases, retarding execution of sentence so extremely

12

that long-delayed or never carried out executions frustrate rather than further the

13

social ends they are required to serve. This state of affairs renders Mr. Jones’s

14

death sentence a violation of the Eighth Amendment.

15

B.

Specific Penological Justifications for Execution

16

The Court has stated that the imposition of the death penalty, in order to be

17

constitutional, must further the penological goals of “retribution and deterrence of

18

capital crimes by prospective offenders.” Gregg, 428 U.S. at 183; see also Roper

19

v. Simmons, 543 U.S. 551, 571, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (“We have

20

held that there are two distinct social purposes served by the death penalty:

21

retribution and deterrence of capital crimes by prospective offenders.”) (internal

22

quotes omitted); Kennedy v. Louisiana, 554 U.S. 407, 441, 128 S. Ct. 2641, 171 L.

23

Ed. 2d 525 (2008) (“capital punishment is excessive when it is grossly out of

24

proportion to the crime or it does not fulfill the two distinct social purposes served

25

by the death penalty: retribution and deterrence of capital crimes.”); Atkins v.

26

Virginia, 536 U.S. 304, 318-19, 122 S. Ct. 2242, 153 L. Ed. 2d 345 (2002) (unless

27

execution of intellectually disabled defendants measurably contributes to

28

retribution or deterrence of prospective offenders, “it ‘is nothing more than the
18
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

purposeless and needless imposition of pain and suffering’ and hence an

2

unconstitutional punishment”) (quoting Enmund v. Florida, 458 U.S. 782, 798,

3

102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)).13 To pass constitutional muster the

4

penalty must advance these goals significantly or measurably; failure to satisfy

5

either ground may suffice to render it unconstitutional. See Roper, 543 U.S. at 571

6

(finding execution violative of Eighth Amendment where “it is unclear whether

7

the death penalty has a significant or even measurable deterrent effect on

8

juveniles”); Atkins, 536 U.S. at 318 (condemning execution as unconstitutional

9

punishment unless it “measurably contributes” to one or both of the “recognized”

10

goals of capital punishment); Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861,

11

53 L. Ed. 2d 982 (1977) (punishment is excessive if it makes no measurable

12

contribution to acceptable goals of punishment – retribution and deterrence – and

13

“might fail the test on either ground”). Because of the passage of time, Mr.

14

Jones’s execution, should it ever occur, will contribute to neither goal.

15

Consequently his sentence violates the Eighth Amendment.

16

1. Retribution

17

The Gregg Court cited earlier precedent establishing that “[r]etribution is no

18

longer the dominant objective of the criminal law,” Williams v. New York, 337 U.S.

19

241, 248, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949), but found retribution to be

20

neither a “forbidden objective” in criminal sentencing, “nor one inconsistent with

21

our respect for the dignity of men,” Gregg, 428 U.S. at 183. Regardless of its

22

status in criminal punishment generally, the Court subsequently identified

23
24
25
26
27
28

13

Various members of the Court have occasionally discussed other possible
social benefits of execution, such as the prevention of repetitive criminal acts,
encouragement of guilty pleas and confessions, eugenics, and economy. Some of
these goals are manifestly unconstitutional. See, e.g., Furman, 408 U.S. at 342,
355-56 (Marshall, J., concurring). None has ever been found sufficient to justify
the sanction of death.
19
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

retribution as “the primary rationale for imposing the death penalty.” Spaziano v.

2

Florida, 468 U.S. 447, 461, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984).

3

The Supreme Court regularly describes retribution as justification for

4

execution in terms of social morality: “In part, capital punishment is an expression

5

of society’s moral outrage at particularly offensive conduct.” Gregg at 183. The

6

need to express such outrage is said to be primal: “The instinct for retribution is

7

part of the nature of man, and channeling that instinct in the administration of

8

criminal justice serves an important purpose in promoting the stability of a society

9

governed by law.” Furman at 308 (Stewart, J., concurring). Extreme punishment

10

that fails to fulfill the appropriately retributive purpose of giving voice to the

11

moral outrage of the community, however, may devolve into primitive expressions

12

of rage, vengeance, and retaliation forbidden by the Eighth Amendment. “The

13

‘cruel and unusual’ language limits the avenues through which vengeance can be

14

channeled. Were this not so, the language would be empty and a return to the rack

15

and other tortures would be possible in a given case.” Furman, 408 U.S. at 345

16

(Marshall, J., concurring).

17

Although Furman and Gregg concerned “capital punishment,” the specific

18

element of capital punishment under consideration in these cases was execution

19

per se, i.e., the question of whether the Eight Amendment forbade execution

20

imposed pursuant to existing state statutes under any circumstances. As set forth

21

above, however, the rubric “capital punishment” encompasses considerably more

22

than execution – as practiced in California, it entails lengthy incarceration under

23

threat of execution, sometimes, though seldom, followed by execution. The Court

24

did not address the constitutionality of the entire system of capital punishment in

25

Furman or Gregg, and questions relating to eligibility criteria, methods of

26

execution, and the effect of protracted incarceration on the continued

27

constitutional legitimacy of a given execution remain matters governed by the

28

same clearly established Eighth Amendment strictures on the imposition of cruel
20
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

and unusual punishment that governed the results in Furman and Gregg.

2

The “evolving standards of decency that mark the progress of a maturing

3

society” from which the Eighth Amendment derives its meaning, Trop v. Dulles,

4

356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), encompass society’s

5

considerable interest in ensuring that no human be executed in violation of the

6

law. The California Supreme Court has acknowledged that the state’s process of

7

postconviction review is in place to protect California’s state interest in

8

safeguarding the rights of capital defendants by ensuring compliance with the

9

Constitution and the correctness of procedures resulting in sentences of death as

10

set forth in California Government Code section 68662. See In re Morgan, 50 Cal.

11

4th 932, 941 n.7, 237 P.3d 993 (2010). Limitations on resources for the judicial

12

review essential to the integrity of our system of capital punishment so lengthen

13

the interval between the retributive impulse underlying the jury’s initial expression

14

of moral outrage and the final execution of sentence as to deprive that execution of

15

its retributive character. Given current delays, an execution may not be carried out

16

by the same generation of citizens that recommended the sentence, and may be

17

carried out on a very different person than the one once adjudged to warrant it.

18

The degenerative effect of time on whatever retributive character an

19

execution may have is so widely acknowledged and uncontroversial as to be

20

axiomatic, as reflected in the often-uttered maxim “justice delayed is justice

21

denied.” See Coleman v. Balkcom, 451 U.S. 949, 960, 101 S. Ct. 2994, 68 L. Ed.

22

2d 334 (1981) (Rehnquist, C.J., dissenting from denial of certiorari) (“There can

23

be little doubt that delay in the enforcement of capital punishment frustrates the

24

purpose of retribution.”); Alex Kozinski & Sean Gallagher, Death: The Ultimate

25

Run-On Sentence, 46 Case W. Res. L. Rev. 1, 4 (1995) (“Whatever purposes the

26

death penalty is said to serve – deterrence, retribution, assuaging the pain suffered

27

by victims’ families – these purposes are not served by the system as it now

28

operates.”); Johnson v. Bredesen, 558 U.S. 1067, 1069, 130 S. Ct. 541, 175 L. Ed.
21
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

2d 552 (2009) (Stephens, J., and Breyer, J., respecting the denial of certiorari)

2

(“the penological justifications for the death penalty diminish as the delay

3

lengthens”); Lewis Powell, Capital Punishment, 102 Harv. L. Rev. 1035, 1041

4

(1989) (“The retributive value of the penalty is diminished as imposition of

5

sentence becomes ever further removed from the time of the offense.”).

6

Beyond failing to “significantly” or “measurably” further the recognized

7

goals of capital punishment as the cases require, execution following protracted

8

incarceration may affirmatively undermine them. See, e.g., People v. Simms, 736

9

N.E.2d 1092, 1144 (Ill. 2000) (Harrison, J., dissenting) (“Retribution and

10

deterrence, the two principal social purposes of capital punishment, carry less and

11

less force” after substantial delay); Judge Arthur L. Alarcón, Remedies for

12

California’s Death Row Deadlock, 80 S. Cal. L. Rev. 697, 709 (2007) (“Inordinate

13

delays . . . undermine the stated purposes of having the death penalty, namely

14

retribution and deterrence.”); Carol S. Steiker & Jordan M. Steiker, Entrenchment

15

and/or Stabilization: Reflections on (Another) Two Decades of Constitutional

16

Regulation of Capital Punishment, 30 Law And Inequality 211, 230-31 (2012)

17

(“Deterrence is attenuated when it is widely understood that an execution will not

18

occur until many years after sentence, if at all. Moreover, the retributive value of

19

executions is diminished when the person executed has lived a ‘second lifetime’

20

on death row.”). Thus, Mr. Jones’s execution will not fulfill the purposes the

21

Supreme Court has declared essential for capital punishment to be constitutional –

22

it will, rather, subvert them.

23

2. Deterrence

24

The Gregg Court stated that, as of the time of its decision in 1976, evidence

25

relating to the deterrent effect of execution was equivocal. “Statistical attempts to

26

evaluate the worth of the death penalty as a deterrent to crimes by potential

27

offenders have occasioned a great deal of debate. The results simply have been

28

inconclusive.” Gregg, 428 U.S. at 184-85. Justice Brennan noted in his Furman
22
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

concurrence that proponents of the view that capital punishment deterred potential

2

offenders, “necessarily admit that its validity depends upon the existence of a

3

system in which the punishment of death is invariably and swiftly imposed.”

4

Furman, 408 U.S. at 302 (Brennan, J., concurring). Justice Marshall similarly

5

observed that, “[f]or capital punishment to deter anybody it . . . must . . . follow

6

swiftly upon completion of the offense.”

7

concurring). Whatever deterrent effect an execution may have, an execution that

8

is never carried out can have none.

Id. at 354 n.124 (Marshall, J.,

9

In the period between Mr. Jones’s arrest and the time of this filing, ninety-

10

two men have died on California’s death row. Of that number, twelve were

11

executed at San Quentin; fifty-seven died of natural causes; fifteen are known to

12

have died of suicide; of the remaining eight, six died of various other causes and

13

the cause of death remains unresolved for two. Ex. 13 at 627-29. Even attributing

14

some deterrent effect to the executions carried out at San Quentin, eighty of the

15

ninety-two deaths since Mr. Jones’s arrival there were categorically incapable of

16

furthering any such effect because those prisoners were not executed. Statistically,

17

there is a roughly one-in-nine chance that a California death sentence might

18

further the goal of deterrence – a disparity that will increase as the death row

19

population ages and the process of developing an execution protocol in

20

compliance with the law continues. A one-in-nine chance of execution is too small

21

a percentage to render execution a meaningful deterrent or a constitutional

22

punishment. See Gomez v. Fierro, 519 U.S. 918, 117 S. Ct. 285, 136 L. Ed. 2d 204

23

(1996) (Stevens, J., dissenting) (noting that delay in the execution of death

24

judgments “frustrates the public interest in deterrence and eviscerates the only

25

rational justification for that type of punishment”).

26

An assessment of contemporary values concerning the infliction of a

27

challenged sanction is relevant to the application of the Eighth Amendment, and

28

“does not call for a subjective judgment. It requires, rather, that we look at
23
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

objective indicia that reflect the public attitude toward a given sanction.” Gregg,

2

428 U.S. at 173. Public attitudes toward capital punishment have been monitored

3

for decades. Public endorsement of deterrence as a justification for executions

4

was dominant in the 1950s, and remained widespread through the 1970s. Radelet

5

& Lacock, Recent Developments: Do Executions Lower Homicide Rates?: The

6

Views of Leading Criminologists, 99 J. Crim. L. & Criminology 489, 492 (2009).

7

The proportion of Gallup Poll respondents holding the view that the death penalty

8

acts as a deterrent to the commission of further murders has fallen steadily from

9

62% of respondents in 1985, to 61% in 1986, to 51% in 1991, to 35% in 2004, to

10

34% in 2006, to 32% in 2011, the last year for which there are available data.14 A

11

1995 survey of nearly 400 police chiefs and county sheriffs found that two-thirds

12

of them did not believe the death penalty significantly lowered the number of

13

murders. Radelet & Lacock, Recent Development, 99 J. Crim. L. & Criminology

14

at 492.

15

Although much of the concern underlying the Furman Court’s invalidation

16

of capital punishment stemmed from the arbitrary manner in which the sanction

17

was imposed, Justice White’s observations about the manner in which death

18

sentences were dispensed is equally applicable to the manner in which they are

19

now executed in California:

20

[I]t is difficult to prove as a general proposition that capital

21

punishment, however administered, more effectively serves the ends

22

of the criminal law than does imprisonment. But however that may

23

be, I cannot avoid the conclusion that as the statutes before us are

24

now administered, the penalty is so infrequently imposed that the

25
26
27
28

14

http://www.gallup.com/poll/1606/death-penalty.aspx (last visited June 8,
2014).
24
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

threat of execution is too attenuated to be of substantial service to

2

criminal justice.

3

Furman, 408 U.S. at 313 (White, J., concurring). Mr. Jones’s execution will

4

amount to “the pointless and needless extinction of life with only marginal

5

contributions to any discernible social or public purpose” unless it realistically

6

furthers the goals of retribution or deterrence. It therefore constitutes “a penalty

7

with such negligible returns to the State” as to be “patently excessive and cruel

8

and unusual punishment violative of the Eighth Amendment.” Id. at 312; see also

9

Thompson v. McNeil, 129 S. Ct. 1299, 129 S. Ct. 1299 (2009) (statement of Justice

10

Stevens respecting the denial of the petition for writ of certiorari); Knight v.

11

Florida, 528 U.S. 990, 120 S. Ct. 459, 145 L. Ed. 2d 370 (1999) (Breyer, J.,

12

dissenting from denial of certiorari); Elledge v. Florida, 525 US 944, 119 S. Ct.

13

366, 142 L. Ed. 2d 303 (1998) (Breyer, J., dissenting from denial of certiorari);

14

Lackey v. Texas, 514 U.S. 1045, 1047, 115 S. Ct. 1421, 131 L. Ed. 2d 304 (1995)

15

(Stevens, J., joined by Breyer, J., respecting the denial of certiorari); Ceja v.

16

Stewart, 134 F.3d 1368 (9th Cir. 1998) (Fletcher, J., dissenting from order denying

17

stay of execution).

18
19

III. THE CONDITIONS OF CONFINEMENT TO WHICH MR.

20

JONES IS SUBJECTED WHILE AWAITING THE EXECUTION OF

21

HIS SENTENCE, AS WELL AS THE UNCERTAINTIES

22

SURROUNDING HIS EXECUTION, CONSTITUTE TORTURE IN

23

VIOLATION OF THE EIGHTH AMENDMENT.

24

As set forth above, Mr. Jones’s confinement under sentence of death for

25

what has already been over nineteen years, and what is certain to be at least

26

several more years before his execution can take place, constitutes cruel and

27

unusual punishment and violates his rights to due process and equal protection of

28

the law under the federal and state Constitutions.

Because California state

25
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

appellate and postconviction processes fail entirely to provide Mr. Jones with full,

2

fair, and timely review of his convictions and sentence, Mr. Jones has been

3

subjected for an unconscionable period of time to severely dehumanizing and

4

brutal physical and psychological conditions of confinement, as well as to

5

uncertainty regarding whether, when, and how he will be executed.

6

combination of the inhumane conditions of confinement and the psychological

7

duress imposed by the state’s failure to establish procedures that limit the

8

uncertainty of the sentence to which Mr. Jones will be exposed exact torturous

9

physical and psychological tolls upon Mr. Jones that render his continued

10

confinement on death row, as well as his future execution, in violation of the

11

Eighth Amendment.

12

A.

The

The Conditions of Confinement on California’s Death Row Are

13

Physically and Psychologically Torturous.

14

1. Physical Conditions on East Block.

15

“Conditions of confinement . . . constitute[] cruel and unusual punishment

16

[where] they result[] in unquestioned and serious deprivation of basic human

17

needs.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L. Ed. 2d 59

18

(1981). Overcrowding, deprivation of nutrition, and denial of basic needs can

19

constitute an Eighth Amendment violation. Hutto v. Finney, 437 U.S. 678, 98 S.

20

Ct. 2565, 57 L. Ed. 2d 522 (1978) (holding that indeterminate confinement in

21

isolation cells, in which between four and eleven inmates were crowded into small

22

windowless cells containing no furniture and fed less than 1000 calories a day,

23

constituted cruel and unusual punishment). Deliberate indifference to an inmate’s

24

medical and mental health needs also constitutes cruel and unusual punishment

25

under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285,

26

50 L. Ed. 2d 251 (1976).

27

The physical and psychological conditions of Mr. Jones’s lengthy

28

confinement have been so dehumanizing, brutal, and severe as to constitute
26
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

torture. The physical conditions under which Mr. Jones has been confined are

2

deplorable and inhumane, and have required long-term judicial intervention and

3

oversight.

4

(alleging conditions and treatment on death row violated the Eighth and

5

Fourteenth Amendments); Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal.

6

1984), aff’d in part, rev’d in part, 801 F.2d 1080 (9th Cir. 1986) (holding that

7

conditions of confinement in San Quentin, where Mr. Jones is and was housed,

8

were unconstitutional in many respects); Lancaster v. Tilton, No. C 79-01630

9

WHA, 2008 WL 449844 (N.D. Cal. Feb. 15, 2008) (continuation of Thompson

10

See, e.g., Thompson v. Enomoto, 815 F.2d 1323 (9th Cir. 1987)

litigation).

11

For the past more than nineteen years, Mr. Jones has been housed at San

12

Quentin State Prison with several hundred other condemned inmates in a section

13

of the prison called East Block, “a looming warehouse-like structure constructed

14

in 1930,” that is the length of two football fields, forty yards wide, and six stories

15

high. Lancaster v. Tilton, No. C 79-01630 WHA, 2008 WL 449844 at *5 (N.D.

16

Cal. Feb. 15, 2008). Five of the tiers have two sides, and each side contains

17

approximately 54 cells, making approximately 250 cells per side, and 500 cells in

18

the block. Id. Mr. Jones’s cell is windowless, six feet wide by eight feet long, and

19

has three concrete walls. The cell front is constructed of bars fitted with metal

20

grating. See Toussaint v. McCarthy, 597 F. Supp. 1388, 1394-95 (N.D. Cal. 1984),

21

aff’d in part, rev’d in part, 801 F.2d 1080 (9th Cir. 1986).

22

East Block is a “crumbling, leaky maze of a place . . . echoing with the

23

incessant chatter and shrieking cacophony of prison.” Ex. 2 at 200. During Mr.

24

Jones’s tenure on death row, living conditions there have been found so

25

substandard, unhealthy, and inhumane, and the medical care determined to be so

26

deficient and below minimally acceptable constitutional standards – both on death

27

row and in other relevant areas of San Quentin – that lawsuits and the long-term

28

intervention and oversight of the courts have been required. See, e.g., Plata v.
27
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Brown, Case No. C-01-1351 TEH (N.D. Cal.) (finding prison medical care,

2

including that on death row, to be deficient); Coleman v. Wilson, 912 F. Supp.

3

1282 (E.D. Cal. 1995) (concerning deficiencies in prison mental health care);

4

Thompson v. Enomoto, 815 F.2d 1323 (alleging conditions and treatment on death

5

row violate Eighth and Fourteenth Amendments); Toussaint, 597 F. Supp. 1388

6

(describing conditions in East Block); Lancaster, 2008 WL 449844 (continuation

7

of Thompson litigation).

8

East Block is “in significant disrepair in ways that make maintaining proper

9

sanitation in the unit, and consequently in prisoners’ cells, extremely difficult, if

10

not impossible.” Ex. 3 at ¶¶ 18. Disease vectors such as rodents, birds, and other

11

vermin have posed significant hazards to the health and safety of those housed and

12

employed in East Block. Bird droppings are caked on the tiers, gun rails, floors,

13

gurneys used for medical purposes, laundry carts, containers holding prisoners’

14

shaving razors, and lockers. Ex. 3 at ¶¶ 85-87; see also Ex. 3 at 249-50, 261-62,

15

270-73, 277; Lancaster, 2008 WL 449844, *24. Birds nest, fly, and ambulate

16

around East Block, settling on prisoners’ food trays. Disease transmission risk is

17

extremely high as a consequence of physical contact with bird feces, inhalation of

18

aerosolized feces, and through ingestion of feces that have contaminated food. Ex.

19

3 at ¶¶ 85-96; Lancaster, 2008 WL 449844, *24-25. Cockroaches, ants, spiders,

20

mice, worms, and other vermin are common in East Block; drain flies in larval

21

stages are found in the showers. Ex. 3 at ¶¶ 97-102.

22

Water pooling in the East Block showers and spilling out onto the tier, in

23

addition to the unsanitary condition of the showers themselves, pose serious risks

24

to health and safety. Ex. 3 at ¶¶ 19-24; see also Ex. 3 at 258-59, 264-65, 267-69.

25

The bars on the tiers in front of the showers (which are located in the middle of

26

each tier) are corroded and degraded from cascading shower water. Ex. 3 at ¶¶ 20,

27

31. “Mold and mildew populate the tier bars, floors, and ceilings in front of the

28

showers. Congealed strands of muck and slime, composed of soap scum, hair, and
28
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

bodily detritus dangle from the tier bars and ceilings. . . . It is readily apparent that

2

these strands, like stalactites, have formed over a long period of time as water

3

carrying shower debris has flowed over them. These slime stalactites are perfect

4

breeding grounds for mold and bacteria.” Ex. 3 at ¶ 20. Water from the upper

5

tiers falls “as if it were a light rain of scummy, filthy water” and dirty water from

6

the showers flows onto each tier before cascading to the tiers below. Ex. 3 at ¶ 19.

7

Disease is spread by the falling and standing water and by mist which forms as the

8

cascading water aerosolizes. This falling water poses a danger of electrocution as

9

it streams over light switches. Ex. 3 at ¶¶ 22-25.

10

In addition to the filth and disease generated by the birds, insects, and other

11

vermin, and by the pooled, falling, and aerosolized water, East Block is full of

12

debris and garbage that falls from the tiers above the second tier where Mr. Jones

13

is housed. Ex. 3 at ¶ 26; see also Ex. 3 at 257, 260, 262, 270-71, 275-76. Areas in

14

and around individual cells are grotesquely unsanitary and pose health hazards due

15

to toilet paper shortages; bedding in disrepair; the accumulation of dust in vents;

16

dirt and grime in areas the prisoners cannot reach to clean, or that are so degraded

17

that they cannot be made clean; pooling water; and water leaks in the plumbing in

18

and behind individual cells. Ex. 3 at ¶¶ 29-33; see also Ex. 3 at 250-56, 265-66,

19

275-76.

20

2. Isolation

21

The amount of time Mr. Jones is permitted to be outside his cell is extremely

22

limited, and when he is transported, he is handcuffed behind his back and escorted

23

by guards. East Block prisoners are confined to their cells and are allowed out of

24

their cells only to shower, go to the exercise yard and medical appointments,

25

attend visits and classification committee meetings, and for limited religious or

26

educational programs.

27

interact other than the recreation yard. Ex. 4 at 308-09. Mr. Jones’s “yard time is

28

often shortened to two hours per day because of various delays, and it is frequently

There is no communal space in which prisoners may

29
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

not offered . . . for weeks at a time.” Ex. 4 at 308. “[U]p to 80 prisoners are

2

released at a time to share a single yard that is roughly 60 feet by 80 feet, about the

3

size of a basketball court. Little to no exercise equipment is available, and the

4

space is so uncomfortable and crowded that prisoners frequently decline recreation

5

time.” Ex. 4 at 309. Medical treatment and educational programs are limited by

6

the state’s resources and its willingness to supply such opportunities and

7

treatment. Ex. 4 at 307-13.

8

Mr. Jones’s contact with family members and friends is strictly limited.

9

Non-legal visits are limited to three days a week, Thursdays, Saturdays, and

10

Sundays. Condemned prisoners, unlike other prisoners, are not permitted private

11

family or conjugal visits and instead must conduct visits in the public visiting

12

room. Condemned prisoners are not permitted to demonstrate physical affection

13

toward their loved ones during visits other than a “brief kiss and/or hug at the

14

beginning and end of visit.”15 Mr. Jones, like other prisoners in his privilege

15

group, Grade A, is allowed two 15-minute telephone calls each week, but because

16

these calls are collect and expensive, it is difficult for Mr. Jones to utilize these

17

calls. Ex. 4 at 310.

18

3. Deficiencies in Medical and Psychiatric Treatment

19

The conditions on California’s death row have exacerbated Mr. Jones’s

20

mental health impairments that are set forth in the Amended Petition. Ex. 4 at 312

21

(noting that “death row only exacerbates [mental health] problems because of the

22

‘lack of socialization’ and the ‘stress of not knowing when they’ll be executed.’”);

23

see also Terry A. Kupers, Trauma and its Sequelae in Male Prisoners: Effects of

24

Confinement, Overcrowding, and Diminished Services, 66 Am. J. Orthopsychiatry

25

189, 191 (1996) (noting that “[p]risoners with a history of mental disorder or a

26
27
28

15

http://www.cdcr.ca.gov/Visitors/docs/InmateVisitingGuidelines.pdf
visited June 8, 2014).

(last

30
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

tendency to become emotionally incapacitated by stress have an especially hard

2

time”). Mental health treatment provided to Mr. Jones and others on California’s

3

death row is inadequate. Brown v. Plata, __ U.S. __, 131 S. Ct. 1910, 179 L. Ed.

4

2d 969 (2011) (finding prison medical care and mental health care, including that

5

provided to death row inmates, so deficient as to violate the Eighth Amendment);

6

Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995) (finding inadequate

7

screening, understaffing, delays in access to care, deficiencies in medication

8

management and involuntary medication, and inadequacy of medical records at

9

California prisons, including San Quentin, where Mr. Jones is confined); see also

10

Ex. 4 at 312-13 (reporting that group therapy is conducted with prisoners seated

11

inside cramped individual “treatment cages” that are lined up in a room; that

12

prisoners are not eligible for transfer to medical facilities for specialized mental

13

health care; and that mental health treatment providers reveal confidential

14

information to correctional officers).

15
16

4. Long Periods of Confinement Under These Conditions Constitute
Debilitating Psychological Torture

17

Punishments that result in extreme mental or psychological distress can

18

violate the Eighth Amendment. Trop v. Dulles, 356 U.S. 86, 101-02, 78 S. Ct.

19

5902, L. Ed. 2d 630 (1958) (holding that denationalization as punishment is barred

20

by the Eighth Amendment and “is offensive to cardinal principles for which the

21

Constitution stands” because, although no physical mistreatment is implicated,

22

“[i]t subjects the individual to a fate of ever-increasing fear and distress”).

23

Confinement in jail or prison even under sentences less than death is documented

24

to take a serious physical and psychological toll on prisoners. See, e.g., Craig

25

Haney & Philip Zimbardo, The Past and Future of U.S. Prison Policy: Twenty-

26

Five Years After the Stanford Prison Experiment, 33 Am. Psychologist 709, 719

27

(1998) (“The pains [of even limited periods of incarceration] [are] as much

28

psychological – feelings of powerlessness, degradation, frustration, and emotional
31
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Case No. CV-09-2158-CJC

1

distress – as physical – sleep deprivation, poor diet, and unhealthy living

2

conditions.”); Terry A. Kupers, Trauma and its Sequelae, at 194 (reporting “the

3

immensity of the problem of stress response syndromes behind bars”).

4

The ordeals of the condemned are inherent and inevitable in any

5

system that informs the condemned person of his sentence and

6

provides for a gap between sentence and execution. Whatever one

7

believes about the cruelty of the death penalty itself, this violence

8

done the prisoner’s mind must afflict the conscience of enlightened

9

government and give the civilized heart no rest.

10

District Attorney v. Watson, 411 N.E.2d 1274, 1290 (Mass. 1980) (Liacos, J.,

11

concurring). Clifton Duffy, a former warden of San Quentin, in a book published

12

in 1962 about his experiences at San Quentin, observed: “One night on death row

13

is too long, and the length of time spent there by [many of the prisoners]

14

constitutes cruelty that defies the imagination. It has always been a source of

15

wonder to me that they didn’t all go stark, raving mad.” Clinton T. Duffy, Eighty-

16

Eight Men and Two Women 254 (1962).

17

The United States Supreme Court, the California Supreme Court, and other

18

federal and state courts have recognized that long periods of confinement under

19

sentence of death can be torturous. See, e.g., In re Medley, 134 U.S. 160, 172, 10

20

S. Ct. 384, 33 L. Ed. 835 (1890) (describing the period between the sentence of

21

death and the execution – in that case a mere four weeks – as engendering

22

“immense mental anxiety”); People v. Anderson, 6 Cal. 3d 628, 649 (1972),

23

superseded by constitutional amendment as stated in People v. Hill, 3 Cal. 4th

24

959, 1015 (1992) (“The cruelty of capital punishment lies not only in the

25

execution itself and the pain incident thereto, but also in the dehumanizing effects

26

of the lengthy imprisonment prior to execution during which judicial and

27

administrative procedures essential to due process of law are carried out.

28

Penologists and medical experts agree that the process of carrying out a verdict of
32
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Case No. CV-09-2158-CJC

1

death is often so degrading and brutalizing to the human spirit as to constitute

2

psychological torture.”); People v. Chessman, 52 Cal. 2d 467, 499 (1979),

3

overruled in part on other grounds by People v. Morse, 60 Cal. 2d 631 (1964) (“It

4

is, of course, in fact unusual that a man should be detained for more than 11 years

5

pending execution of a sentence of death and we have no doubt that mental

6

suffering attends such detention.”); see also Coleman v. Balkcom, 451 U.S. 949,

7

952, 101 S. Ct. 2031, 68 L. Ed. 2d 334 (1981) (Stevens, J., concurring in denial of

8

certiorari) (recognizing that mental pain condemned prisoners suffer is “a

9

significant form of punishment” that “may well be comparable to the

10

consequences of the ultimate step itself”); Furman v. Georgia, 408 U.S. 238, 288,

11

92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Brennan, J., concurring) (commenting

12

that “mental pain is an inseparable part of our practice of punishing criminals by

13

death, for the prospect of pending execution exacts a frightful toll during the

14

inevitable long wait between the imposition of sentence and the actual infliction of

15

death”); District Attorney v. Watson, 411 N.E.2d at 1290 (Liacos, J., concurring)

16

(equating mental stress suffered by death row inmate with psychological torture);

17

Commonwealth v. O’Neal, 339 N.E.2d 676, 680 (Mass. 1975) (Tauro, J.,

18

concurring) (noting that “[t]he convicted felon suffers extreme anguish in

19

anticipation of the extinction of his existence”).

20

On California’s death row, the physical and psychological effects of the

21

torturous conditions to which Mr. Jones is exposed are not simply hypothetical;

22

they are starkly evident from the number of condemned prisoners who have

23

committed suicide while under sentence of death. Since November 1978, when

24

the current death penalty statute was enacted by California voters, of the 107

25

prisoners sentenced to death who have died, 22, or 21%, committed suicide. Ex.

26

13. Two additional condemned prisoners were executed after abandoning their

27

appeals.

28

Since 1979, more California death row inmates have taken their own lives
33
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Case No. CV-09-2158-CJC

1

while under sentence of death than have been executed. Fourteen of the 107

2

condemned inmates who have died were executed (13 in California and one in

3

Missouri), as compared to the 22 (or 24, when including the individuals who

4

abandoned litigation challenging their sentences) who committed suicide. Ninety-

5

three condemned inmates have thus died of causes other than execution. Sixty-

6

three of these have died of natural causes. At least five other prisoners on

7

California’s death row have died as a result of acts of violence by other prisoners

8

or prison officials. Ex. 13.16 This brings the total number of condemned inmates

9

who have died other than by execution or natural causes, and whose deaths can be

10

attributed at least in part to conditions of confinement under sentence of death, to

11

29, or 27% of the total California condemned inmate deaths. Ex. 13. Over 31% of

12

the 93 condemned inmate deaths of causes other than execution is attributable to

13

conditions of confinement under sentence of death.

14

As noted above, 21% of the deaths of condemned inmates since 1978 were

15

suicides. Fifty-nine percent of condemned inmate deaths were the result of natural

16

causes. That means that over a third as many California condemned inmates have

17

committed suicide than have died naturally.

18

California’s death row is more than 25 times the rate of suicide in the general

19

population of California and in the United States general population. Ex. 15 ¶18

20

& Table 3.

Moreover, the suicide rate on

21

Exposure to these inhumane physical and psychological conditions for

22

decades was not a punishment contemplated or authorized by California voters

23

when they enacted the death penalty statute by ballot in 1978, or by the jury when

24

it sentenced Mr. Jones to death in 1995. Mr. Jones has thus been unlawfully

25
26
27
28

16

The CDCR has identified the cause of the death of another condemned
inmate as “Other” and that of two other condemned inmates as “Pending.” Ex.
13.
34
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Case No. CV-09-2158-CJC

1

subjected to punishment separate from and in addition to that authorized by

2

statute, selected by the jury, and imposed by the trial court. See In re Medley, 134

3

U.S. at 172 (holding that subjecting the defendant to solitary confinement during

4

the period between the judgment of death and the execution was an impermissible

5

increase in his punishment and violated the ex post facto clause because it was not

6

authorized by the death penalty statute at the time he committed his crime); In re

7

Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 34 L. Ed. 519 (1890) (“Punishments

8

are cruel when they involve torture or a lingering death” or “something more than

9

the mere extinguishment of life”).

10

B.

The Many Uncertainties Inherent in California’s Death Penalty Scheme

11

Render Mr. Jones’s Years of Confinement Under Sentence of Death

12

Psychologically Torturous.

13

“[W]hen a prisoner sentenced by a court to death is confined in the

14

penitentiary awaiting the execution of the sentence, one of the most horrible

15

feelings to which he can be subjected during that time is the uncertainty during the

16

whole of it . . . as to the precise time when his execution shall take place.” In re

17

Medley, 134 U.S. at 172. The effect on Mr. Jones and other condemned inmates

18

caused by the medieval conditions of confinement experienced by those housed at

19

San Quentin, is profoundly heightened by decades of uncertainty. As noted above,

20

the systemic failures of California’s death penalty scheme and state actors

21

implementing that scheme, including the failure to appoint counsel in a timely

22

fashion, engage in fact-finding during state court proceedings, and establish a

23

valid and constitutional method of execution, create psychologically torturous

24

conditions for those sentenced to death.

25

Under Justice Douglas’s and Justice Brennan’s definitions of

26

arbitrariness, life in the shadow of death is almost certainly cruel

27

and unusual. Life in the shadow of death is “irregularly” applied by

28

design. The state does not tell inmates whether they will suffer the
35
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

specter of execution for five years or thirty. Under Justice White’s

2

and Justice Stewart’s respective definitions of “arbitrary” and

3

“capricious,” life in the shadow of death is cruel and unusual. As

4

the ultimate in-between punishment between life imprisonment and

5

the death penalty, life in the shadow of death puts the death row

6

inmate in purgatory. He cannot be certain when or even whether a

7

death sentence will “in fact [be] imposed,” much like he cannot be

8

certain when or whether lightning will strike.

9

Angela Sun, Note, “Killing Time” in the Shadow of Death: Why Systematic

10

Preexecution Delays on Death Row are Cruel and Unusual, 113 Colum. L. Rev.

11

1585, 1620-21 (2013). Furthermore, the years of unpredictability and lack of

12

resolution associated with the methods of execution impose additional significant

13

psychological strain and terror upon Mr. Jones and others confined under sentence

14

of death in California.

15

1. The Uncertainty of the Duration of Mr. Jones’s Confinement Under

16

Sentence of Death Prior to Execution or to the Grant of Guilt and/or

17

Penalty Relief Renders His Confinement Psychologically Torturous.

18

The stress associated with not knowing when a prisoner will be executed

19

exacts an immeasurable toll on that prisoner’s mental health. See, e.g., Ex. 4 at

20

314. Many courts, in interpreting the reach of statutory aggravating circumstances

21

permitting the imposition of a death sentence where the murder or the

22

circumstances thereof was “cruel,” have held that the time period during which the

23

victim was held in fear for his or her life prior to death establishes the aggravating

24

circumstance. See, e.g., Ex parte Key, 891 So. 2d 384, 390 (Ala. 2004) (finding

25

the “heinous, atrocious, and cruel” aggravating circumstance was proved, and

26

holding that “[p]sychological torture can be inflicted where the victim is in intense

27

fear and is aware of, but helpless to prevent, impending death. Such torture must

28

have been present for an appreciable lapse of time, sufficient enough to cause
36
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

prolonged or appreciable suffering.”) (internal citation omitted); State v. Cropper,

2

225 P.3d 579, 583 (Ariz. 2010) (en banc) (under Arizona law, a first-degree murder

3

is “cruel” within the meaning of a statutory circumstance where “a victim’s

4

suffering existed for a significant period of time,” and approving a jury instruction

5

on this point) (emphasis in original); State v. Hamlet, 321 S.E.2d 837, 846 (N.C.

6

1984) (holding that North Carolina’s “especially heinous, atrocious, and cruel”

7

aggravating circumstance is met when a killing “involve[s] infliction of

8

psychological torture by leaving the victim in his last moments aware but helpless

9

to prevent impending death”); Francois v. State, 407 So. 2d 885, 890 (Fla. 1981)

10

(holding that “especially heinous, atrocious, or cruel” aggravating circumstance

11

“can be sustained on the basis of mental anguish inflicted on the victims as they

12

waited for their ‘executions’ to be carried out”) (internal citations omitted); Rivers

13

v. State, 298 S.E.2d 1, 8-9 (Ga. 1982) (finding evidence sufficient to sustain

14

finding that murder was “outrageously and wantonly vile, horrible, and inhuman in

15

that it involved torture to the victim” where victim was taken to a second location

16

and thus “her end did not arrive with little or no forewarning”).

17

2. The Uncertainty and Years of Lack of Resolution Regarding the

18

Method by Which Mr. Jones Will Be Executed, and the Real

19

Possibility That the Method Will Result in a Painful Death, Renders

20

Mr. Jones’s Confinement Under Sentence of Death Psychologically

21

Torturous.

22

As this Court noted in its order for additional briefing on this claim,

23

California lacks an execution protocol that is valid under state law. See Morales v.

24

Cate, Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL, 2012 WL 5878383, at *1-

25

3 (N.D. Cal. Nov. 21, 2012). Although California Penal Code section 3604

26

provides that the punishment of death shall be inflicted by the administration of

27

lethal gas or intravenous lethal injection, the California Department of Corrections

28

and Rehabilitation (CDCR) has no valid regulations in place to implement the
37
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1

statute with regard to either method of execution. Sims v. Dep’t of Corrections and

2

Rehabilitation, 216 Cal. App. 4th 1059, 1083-84, 157 Cal. Rptr. 3d 409 (2013)

3

(noting that the CDCR conceded that it cannot conduct executions by lethal gas

4

without promulgating regulations, which it has not done, and enjoining the CDCR

5

from carrying out lethal injection executions until and unless new regulations

6

governing lethal injection are promulgated in compliance with the state

7

Administrative Procedure Act).

8

As set forth in more detail in the First Amended Petition, California has not

9

conducted executions since January 2006, due to the failure of the CDCR to

10

lawfully promulgate an execution protocol that comports with constitutional

11

requirements. The execution methods used in California in the two decades prior

12

to the de facto moratorium on executions in 2006 were determined by federal

13

courts to violate the Eighth Amendment’s prohibition on cruel and unusual

14

punishment. Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal. 1994) (finding that

15

California’s lethal gas method of execution was cruel and unusual in violation of

16

the Eighth Amendment), vacated on other grounds in Fierro v. Terhune, 147 F.3d

17

1158 (1998) (holding that current plaintiffs lacked standing); Morales v. Tilton,

18

465 F. Supp. 2d 972 (N.D. Cal. 2006) (ruling that California’s three-drug lethal

19

injection method of execution violated the cruel and unusual punishment clause of

20

the Eighth Amendment). Although the CDCR, under Governor Brown’s direction,

21

announced in April 2012 that it would “begin the process of considering

22

alternative regulatory protocols, including a one-drug protocol, for carrying out

23

the death penalty,” Ex. 5 at 373, to date (more than two years later) no alternative

24

regulatory protocols have been published.

25

Mr. Jones, as well as all other prisoners confined to California’s death row,

26

thus has been confined under sentence of death for more than eight years without

27

having any idea what method of execution will be imposed upon him in the event

28

that he is actually executed. During that time, and for years prior to that, Mr.
38
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Jones has been confined under sentence of death aware that the methods most

2

recently used to execute California prisoners failed to pass constitutional muster –

3

that is, that the pain and suffering inflicted by the administration of lethal gas and

4

lethal injection due to numerous factors inherent in the protocols was significant

5

enough to compel courts to conclude that they were cruel and unusual in violation

6

of the Eighth Amendment. The knowledge that the methods devised to and

7

actually implemented by the state to execute prisoners demonstrated a substantial

8

risk of severe pain (and likely did cause severe pain to those executed by those

9

methods) has and will continue to be a direct and proximate cause of Mr. Jones’s

10

extreme distress, anxiety, and fear regarding an impending execution. Ex. 6 at ¶ 3

11

(former San Quentin warden describing prisoner’s questions about the execution

12

process and psychological need for comprehensive information about the method

13

of execution).

14

Furthermore, Mr. Jones and the other prisoners under sentence of death in

15

California have now suffered for many years and will continue to suffer anxiety

16

and fear due to the continuing uncertainty about what method of execution the

17

state will select.

18

codified as amended at Tenn. Code Ann. § 40-23-114 (May 22, 2014)) (Tennessee

19

capital punishment statute recently amended to provide that if the correctional

20

department commissioner certifies to the governor that “an essential ingredient”

21

for lethal injection executions is unavailable, the mandatory method for carrying

22

out the execution is by electrocution); Ex. 7 (article describing amendment to

23

Tennessee’s death penalty statute); Ex. 8 (article observing that “[f]iring squads,

24

electric chairs and other methods of execution seen as cruel or antiquated could be

25

getting a fresh look after Oklahoma botched a lethal injection”); Ex. 9 (“Prompted

26

by the shortages of available drugs for lethal injections, Wyoming lawmakers are

27

considering changing state law to permit the execution of condemned inmates by

28

firing squad.”).

See, e.g., The Capital Punishment Enforcement Act (to be

39
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Mr. Jones further is constantly exposed to continuing, realistic fear that

2

whichever method California selects will not comport with constitutional

3

requirements. See Mot. for TRO and TRO, Taylor v. Apothecary Shoppe, LLC.,

4

No. 14-CV-063-TCK-TLW, (N.D. Ok. Feb. 11 and 12, 2014), ECF Nos. 3 and 8

5

(describing effect that uncertainty about whether drugs to be used in an execution

6

are defective and therefore might cause significant pain and suffering upon

7

administration has on the psychological state of a prisoner facing execution – and

8

issuing temporary restraining order preventing delivery of compounded

9

pentobarbital to department of corrections for use in execution); see also, e.g., Ex.

10

10 (describing botched lethal injection execution of Clayton Lockett in April 2014

11

in which Mr. Lockett convulsed, writhed on the gurney, and spoke after execution

12

personnel had declared him unconscious and in which Mr. Lockett died of a heart

13

attack minutes after the execution was halted); Ex. 8 (“the botched execution [of

14

Clayton Lockett] has raised questions on whether these new protocols could be

15

ruled as cruel and unusual punishment by the court”); Ex. 11 (describing botched

16

execution in January 2014 of Dennis McGuire in Ohio by the novel lethal

17

injection combination of midazolam and hydromorphone during which Mr.

18

McGuire “appeared to gasp and convulse for roughly 10 minutes before he died”).

19

Not least, Mr. Jones also suffers the additional anxiety created by the

20

uncertainty engendered by the state’s inability to devise within the past two years a

21

valid method of execution despite its stated commitment to do so, and the

22

continuing uncertainty regarding the timeframe in which the state will devise an

23

execution protocol and submit it for public comment. These multiple layers of

24

uncertainty and unpredictability significantly increase the psychological torture

25

imposed on Mr. Jones by California’s death penalty scheme.

26
27
28
40
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

3. Uncertainty Whether or Not Mr. Jones Will Be Executed by Any

2

Execution Method, at Any Time, Renders Mr. Jones’s Confinement

3

Under Sentence of Death Intolerable for Both Mr. Jones and the

4

State.

5

As this Court recognized in its April 10, 2014, Order re: Briefing and

6

Settlement Discussions, “in this case, both petitioner and the States must labor

7

under the grave uncertainty of not knowing whether petitioner’s execution will

8

ever, in fact, be carried out.” Order, April 10, 2014, ECF No. 103, at 3-4. As set

9

forth above, only 14 of the 107 condemned inmates who have died since 1978, or

10

13%, have been executed. Eighty-seven percent of inmates sentenced to death

11

between 1978 and the present thus have died from causes other than execution.

12

The odds that Mr. Jones will be executed by any method, taking into account the

13

various factors described above, including (1) the likelihood that he will obtain

14

relief on the merits of his claims; (2) the ongoing litigation in federal court (and

15

possibly state court) which, due to the inordinate delay and unpredictability of the

16

federal and state appellate process, will result in additional years under sentence of

17

death before relief is granted; (3) the statistical probability that he will die of some

18

cause other than execution during those years; and (4) the significant possibility

19

that California will be unable to adopt a constitutional method of execution by

20

which to carry out Mr. Jones’s execution, are extremely low.

21

continued incarceration under sentence of death under these conditions, with the

22

physically and psychologically torturous effects that a death sentence imposes, is

23

thus arbitrarily inflicted and unusually cruel, and his death sentence must be set

24

aside.

Mr. Jones’s

25
26
27
28
41
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

IV. MR. JONES’S EXECUTION WOULD VIOLATE THE EQUAL

2

PROTECTION CLAUSE BECAUSE CALIFORNIA UNLAWFULLY

3

PENALIZES THOSE WHO SEEK REVIEW OF A CAPITAL

4

CONVICTION WITH INDEFINITE INCARCERATION AND

5

INORDINATE DELAY.

6

As a result of the egregious dysfunction and delay in reviewing capital

7

convictions in California, Mr. Jones, and all other death-sentenced persons who

8

seek postconviction review, must endure a lengthy, tortuous, and extrajudicially

9

imposed incarceration in exchange for the right of review. Exacting such an

10

extraordinary price on the exercise of this fundamental right is constitutionally

11

intolerable — all the more so because non-capital petitioners who seek to overturn

12

serious convictions and sentences do not face a similar fate. A state process that

13

discriminates so profoundly against those who seek to vindicate constitutional

14

rights violates “the central aim of our entire judicial system — all people charged

15

with crime must, so far as the law is concerned, ‘stand on an equality before the

16

bar of justice in every American court.’” Griffin v. Illinois, 351 U.S. 12, 17, 76 S.

17

Ct. 585, 590, 100 L. Ed. 891 (1956) (quoting Chambers v. Florida, 309 U.S. 227,

18

241, 60 S. Ct. 472, 479, 84 L. Ed. 716 (1940)).

19

A capital inmate who seeks postconviction review currently faces an

20

average delay of 17.2 years from the time of capital sentencing to the California

21

Supreme Court’s ruling on state habeas corpus claims. Ex. 15 ¶15 (noting that

22

delay between sentencing and disposition of first state habeas corpus petitions

23

resolved between 2008 and 2014 was 17.2 years). During that time, he or she

24

suffers the deprivation of adequate medical and mental health care, unhealthy and

25

inhumane living conditions, and horrifying uncertainties about execution, among

26

other torturous indignities. See section III, supra. In addition to this heavy toll,

27

the delay — and the failure of the state to afford access to state court processes,

28

factual development, or provide reasoned judicial opinions – fundamentally impair
42
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

a capital petitioner’s ability to adequately develop and present his claims in federal

2

court. See section I, supra. As the Ninth Circuit ruled in Phillips v. Vasquez, 56

3

F.3d 1030 (9th Cir. 1995):

4

The prejudice inherent in [indeterminate and excessive state court

5

delays in adjudicating habeas claims] is quite evident. For fifteen

6

years, Phillips has been compelled to remain in prison under a

7

possible sentence of death while being denied the opportunity to

8

establish the unconstitutionality of his conviction.

9

during so long a delay, there is a substantial likelihood that

10

witnesses will die or disappear, memories will fade, and evidence

11

will become unavailable. In short, the opportunity for a fair retrial

12

diminishes as each day passes.

13

In addition,

Id. at 1036.

14

In these ways, the state not only imposes a cruel and unusual punishment on

15

capital petitioners, but also deprives them of access to the courts that is “adequate,

16

effective, and meaningful” in violation of the Fourteenth Amendment and its

17

Equal Protection guarantees. Bounds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491,

18

52 L. Ed. 2d 72 (1977) (holding that “the state and its officers may not abridge or

19

impair petitioner’s right to apply to a federal court for a writ of habeas corpus”)

20

(internal quotation omitted). In Bounds, the Supreme Court expressly affirmed the

21

constitutional right of access to the courts for habeas corpus petitioners,

22

contrasting that right to discretionary appeals by explaining:

23

[W]e are concerned in large part with original actions seeking new

24

trials, release from confinement, or vindication of fundamental civil

25

rights. Rather than presenting claims that have been passed on by

26

two courts, they frequently raise heretofore unlitigated issues. As

27

this Court has constantly emphasized, habeas corpus and civil rights

28
43
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

actions are of fundamental importance in our constitutional scheme

2

because they directly protect our most valued rights.

3

Id. at 827-28 (internal quotation omitted); see also Rinaldi v. Yeager, 384 U.S.

4

305, 310, 86 S. Ct. 1497, 1500, 16 L. Ed. 2d 577 (1966) (holding that “it is now

5

fundamental that, once established, . . . avenues [of appellate review] must be kept

6

free of unreasoned distinctions that can only impede open and equal access to the

7

courts”).17

8

By imposing indefinite incarceration only on those death row inmates who

9

seek judicial review — those who forgo or abandon challenges to their convictions

10

can escape this fate — the state impermissibly discriminates against capital

11

petitioners for exercising their fundamental rights. See, e.g., Attorney Gen. of New

12

York v. Soto-Lopez, 476 U.S. 898, 911, 106 S. Ct. 2317, 2325, 90 L. Ed. 2d 899

13

(1986) (holding state law that effectively penalized veterans for exercising

14

fundamental right of interstate migration violated equal protection); Idaho Coal.

15

United for Bears v. Cenarrusa, 342 F.3d 1073, 1078 (9th Cir. 2003) (holding state

16

initiative process that required some voters to accumulate 18,054 signatures and

17

others only 61 before effectuating right to vote violated equal protection); cf.

18

United States v. Windsor, __ U.S. __, 133 S. Ct. 2675, 2695-96, 186 L. Ed. 2d 808

19

(2013) (holding federal Defense of Marriage Act violates equal protection

20

component of Fifth Amendment due process by imposing a disability on a class of

21

individuals who have taken advantage of the liberty of same-sex marriage afforded

22
23
24
25
26
27
28

17

As currently implemented in California, the death penalty system also
functionally deprives Mr. Jones of his due process right of access to the courts.
See, e.g., Jones v. State, 740 So. 2d 520 (Fla. 1999) (holding twelve year delay in
holding competency hearing while defendant on death row violated due process).
In Jones v. State, the Florida Supreme Court likened the egregious delay in
conducting a competency hearing to the delays in death penalty appeals criticized
as excessive by Justice Breyer in Elledge v. Florida, 525 U.S. 944, 119 S. Ct.
366, 142 L. Ed. 2d 303 (1998).
44
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

by States).

2

The state also discriminates against capital petitioners by imposing heavy

3

burdens of delay on them that non-capital petitioners do not face. Although

4

complete information concerning the state court’s resolution of challenges to non-

5

capital judgments is not currently available, a sample of non-capital habeas cases

6

involving convictions for murder or attempted murder reveals an average time of

7

thirty months between the date of sentencing and resolution of state habeas

8

claims.18 Ex. 15 ¶19. Thus, even with the added layer of appellate review by the

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10
11
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15
16
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18
19
20
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22
23
24
25
26
27
28

18

See McCoy v. Holland, CV 13-3804-RGK DFM, 2014 WL 2094314 (C.D.
Cal. Apr. 21, 2014), report and recommendation adopted, CV 13-3804-RGK
DFM, 2014 WL 2094322 (C.D. Cal. May 20, 2014) (denying federal petition;
forty-seven months from sentencing to ruling on state habeas corpus petition;
Lugo v. Miller, CV 03-2004-CAS CW, 2014 WL 1956659 (C.D. Cal. Feb. 25,
2014), report and recommendation adopted as modified, CV 03-2004-CAS CW,
2014 WL 1957019 (C.D. Cal. May 15, 2014) (granting relief on ineffective
assistance of counsel claim; twenty-nine months from sentencing to ruling on
state habeas corpus petition); Garrett v. McDonald, CV 10-4102-PA SP, 2014 WL
696353 (C.D. Cal. Feb. 18, 2014) (denying federal petition; forty months from
sentencing to ruling on state habeas corpus petition); Metzger v. Lopez, CV 108518-PSG SP, 2014 WL 1155416 (C.D. Cal. Feb. 11, 2014) (denying federal
petition; approximately three years from sentencing to ruling on state habeas
corpus petition); Escalante v. Grounds, CV 02-7711 AHM FMO, 2010 WL
8731905 (C.D. Cal. 2010), report and recommendation adopted, CV 02-7711
AHM FMO, 2012 WL 2180602 (C.D. Cal. 2012) (granting relief on Batson
claim; thirty-five months from sentencing to ruling on state habeas corpus
petition); Griffin v. Harrington, 915 F. Supp. 2d 1091, 1098 (C.D. Cal. 2012)
(granting relief on ineffective assistance of counsel claim; thirty-four months
from sentencing to ruling on state habeas corpus petition); Blumberg v. Garcia,
687 F. Supp. 2d 1074, 1077 (C.D. Cal. 2010) (granting relief on Napue claim;
seventy-five months from sentencing to ruling on state habeas corpus petition);
Lujan v. Garcia, CV 04-1127-MMM (RCF), 2008 WL 7674923 (C.D. Cal. Sept.
15, 2008), report and recommendation adopted as modified, CV 04-01127 MMM
(RCF), 2010 WL 1266422 (C.D. Cal. Mar. 30, 2010) (granting relief on Miranda
violation; thirty-eight months from sentencing to ruling on state habeas corpus
petition); Lisker v. Knowles, 651 F. Supp. 2d 1097, 1102 (C.D. Cal. 2009)
continued…

45
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

California Courts of Appeal, a defendant challenging a non-capital judgment

2

completes the state review process almost fourteen years before a capital

3

defendant does so. A system of state review that discriminates so profoundly

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against capital petitioners is indefensible. As the Court ruled in Romer v. Evans,

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517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), the effective

6

“disqualification of a class of persons from the right to seek specific protection

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from the law is unprecedented in [Supreme Court] jurisprudence” and

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“discriminations of an unusual character especially suggest careful consideration

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to determine whether they are obnoxious to the constitutional provision.” Id. at

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633 (internal quotation omitted).

11

Though these state actions warrant strict scrutiny under Equal Protection

12

analysis, see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.

13

Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985), California’s system for reviewing capital

14

convictions does not even pass a more deferential standard, as there is no

15

legitimate government interest supporting the state’s process. Indeed, as this

16

Court noted, the state process runs counter to state interests because “the State has

17

a strong interest in expeditiously exercising its sovereign power to enforce the

18

criminal law.” Order Re: Briefing and Settlement Discussions, filed April 10,

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20
21
22
23
24
25
26
27
28

(granting relief on ineffective assistance of counsel claim; nine months from
sentencing to ruling on state habeas corpus petition); Roman v. Hedgpeth, EDCV
04-1226JFW (FMO), 2008 WL 4553137 (C.D. Cal. June 30, 2008), report and
recommendation adopted as modified, EDCV 04-1226JFW(FMO), 2008 WL
4553091 (C.D. Cal. Oct. 8, 2008) (granting relief on juror misconduct claim;
twenty-seven months from sentencing to ruling on state habeas corpus petition);
Sherrors v. Scribner, 05CV1262IEG (LSP), 2007 WL 3276171 (S.D. Cal. Nov. 2,
2007) (granting relief on jury instruction issue; fifty-four months from sentencing
to ruling on state habeas corpus petition); Nunez v. Garcia, C 98-1345 SI, 2001
WL 940920 (N.D. Cal. Aug. 15, 2001) (granting relief on Miranda violation;
fifty-six months from sentencing to ruling on state habeas corpus petition).
46
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

2014, ECF No. 103 at 2.

2

CONCLUSION

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In January 2008, former Chief Justice Ronald George informed the

4

Commission on the Fair Administration of Justice that “if nothing is done, the

5

backlogs in postconviction proceedings will continue to grow ‘until the system

6

falls of its own weight.’” Ex. 1 at 126. The experience of the past six years has

7

confirmed the accuracy of his prediction. In violation of the Eighth Amendment,

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Mr. Jones has suffered, and will continue to suffer the unconscionable delay in the

9

resolution of his challenges to his convictions and sentence, be confined in horrific

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conditions, and tortured by the uncertainty of whether and when he will be

11

executed. For the foregoing reasons, Mr. Jones is entitled to relief on Claim 27.

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Dated: June 9, 2014

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Respectfully submitted,
HABEAS CORPUS RESOURCE CENTER

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By:

/ s / Michael Laurence
Michael Laurence
Cliona Plunkett

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Attorneys for Petitioner Ernest DeWayne Jones

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47
Petitioner’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC