If the state ever comes up with a legal-injection drug protocol for executing prison inmates, they’ve already got a thumbs up from a federal appellate court to start emptying Death Row.

On Thursday, a three-judge panel of the U.S. Court of Appeals for the Ninth District unanimously overturned (pdf) U.S. District Judge Cormac J. Carney’s 2014 ruling that California’s entire death penalty process was unconstitutional because of all the delays and arbitrariness. Judge Carney said it violated the Eighth Amendment ban on “cruel and unusual punishment.”

The appellate court did not overtly disagree with the reasoning, but reversed the decision on a technicality. The judges said the case, a habeas corpus petition brought by a single prisoner convicted and sentenced to death in the California courts, was a loser because  the federal court was being asked to overrule a state court’s decision by applying “a novel constitutional rule,” rather than just checking compliance with then-existing federal law.

They don’t do that sort of thing. But the judges seemed wholly sympathetic to the argument that California’s administration of the death penalty was horrible, even by the woeful standard set by the rest of the country.

The state has 747 prisoners (pdf) waiting to be executed and hasn’t killed anyone in a decade, while the courts continue to issue death penalties. Only 13 out of 900 or so prisoners sentenced to die since 1978 have been executed.

“Many agree with the petitioner that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary,” Judge Susan P. Graberhe wrote for the court.

Judge Paul J. Watford concurred with the decision but voted to overturn for a different reason. He thought the plaintiff/appellee, Ernest DeWayne Jones, had not exhausted his legal appeals in state court during the two decades of wrangling since his conviction for the brutal rape and murder of his girlfriend’s mother in Los Angeles.

“He never presented the claim at issue here to the California Supreme Court to give that court an opportunity to rule on the claim in the first instance,” Judge Watford wrote, although Jones had been to the state high court at another juncture of his legal journey.

The ruling comes one week after the California Department of Corrections and Rehabilitation (CDCR) made a formal proposal (pdf) to pursue a single-drug method of execution, rather than the multi-drug protocol that was rejected by the courts in 2006. Eleven months before that, Clarence Ray Allen became the eleventh, and last, man executed by lethal injection after the state switched from the gas chamber to drugs in 1996.

Still left unresolved is the argument that decades of death penalty delays, which the state defends as due diligence and justice at work, is cruel and unusual in and of itself. The case could be appealed to the full 11-member appellate court. This case, or one like it, is expected to eventually make it to the U.S. Supreme Court.

–Ken Broder

To Learn More:

Federal Appeals Panel Overturns Anti-Death Penalty Ruling in California (by Erik Eckholm, New York Times)

California Death Penalty: Legal Obstacle to Executions Removed (by Howard Mintz, San Jose Mercury News)

Federal Appeals Court Reverses O.C. Judge Ruling Challenging State's Death Penalty (by Sean Emery, Orange County Register)

California Execution Reinstated by 9th Circ. (by Katherine Proctor, Courthouse News Service)

California Proposes a One-Drug Solution to Re-Animate the Death Penalty (by Ken Broder, AllGov California)

Jones v. Davis (U.S. Court of Appeals for the Ninth District) (pdf)