Last July, a federal judge in the U.S. District Court for the Central District of California issued a ruling in Jones v. Davis that found California’s death penalty unconstitutional. In his opinion, Judge Cormac Carney wrote that delays in the capital sentencing scheme were so excessive that they resulted in an arbitrary and capricious application of the death penalty – which violates the Eighth Amendment of the Constitution.

California’s Attorney General, Kamala Harris, appealed this decision to the Ninth Circuit Court of Appeals, and a three judge panel there heard oral arguments on Aug. 31. The panel will now convene and issue a ruling, though the timing is unclear.

The arguments in the appeal are fairly technical – they turn on whether the convicted man (Jones) exhausted his remedies in state court before presenting them to a federal judge. The legal doctrine of “exhaustion” requires him to present all of his arguments to state courts before entering the federal courts. In the Jones case, the state (represented by the Attorney General) argued that Jones failed to present this argument – that the delays violate the 8th Amendment – to the state court, and therefore the federal district court could not rule on it.

When Mr. Jones presented his appeal to the federal district court, Judge Carney ordered both parties to brief him on whether and why the system of capital punishment in California is constitutional. The judge then ruled on the basis of those briefs. The state argues that because those arguments were not first presented in its courts, they are not exhausted, and cannot be heard on appeal. The state wants the Ninth Circuit to send the case back to the California Supreme Court.

Lawyers for Mr. Jones argue that the state waived exhaustion when it submitted its arguments to the lower federal court. Waiver means that the state agreed to bypass a hearing in its own court, and they cannot now demand to be heard on that issue. Jones also argues that even if waiver did not occur, he is entitled to an exemption from exhaustion, because they state remedy is ineffective. The California Supreme Court takes years to issue decisions in death penalty appeals, and sending the matter back will only compound the delays that, under the lower court ruling, violate the Eighth Amendment.

The panel now retires to make its decision. There are several possible outcomes. The justices could find that Judge Carney’s decision was incorrect, and reinstate the sentence for Mr. Jones. Alternatively, the court could order that Mr. Jones present his arguments to the California Supreme Court (exhaust his remedies there), which would bring him back into federal court making these arguments again in four or five years. The most thrilling possibility, but one that is more unlikely, is that the panel would affirm the decision, leaving Judge Carney’s ruling to stand. A finding by the Ninth Circuit Court of Appeals has the potential to apply to all of California’s death row inmates, and would effectively invalidate the state’s death penalty scheme.

If the panel affirms the lower court ruling, the state will most certainly appeal its way up to the United States Supreme Court. In the meantime, however, California’s executions will remain on hold. Pending litigation of this magnitude is likely to forestall judges from issuing death warrants.

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