How Life And The Death Penalty Imitate The Marx Brothers

The Court:  We'll take up old business.
Defense Counsel:  I wish to discuss the [constitutionality of the death penalty]  
The Court:  Sit down, that's new business. No old business? Very well... We'll take up new business.
Defense Counsel:  Now, about the [death penalty] ....
The Court:  Too late, that's old business already. Sit down

Today, the Ninth Circuit Court of Appeal heard oral argument in the case of Jones v. Chappell, in which a federal district judge ruled that the administration of California's death penalty is irrevocably dysfunctional, resulting in systemic delays in which only the "random few" are executed in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. As U.S. District Judge Cormac J. Carney found, of the over 900 people that have been sentenced to death since the adoption of the death penalty in 1978, 13 have been executed, 94 have died of other causes. There are over 750 men and women on California's death row. The process for reviewing their death sentences takes an average of 25 years and is getting longer -- delays, as the court found, that are inherent in the system and not the fault of inmates themselves.

Anyone wishing to hear a spirited argument about this ruling and whether California's death penalty is constitutional did not hear it today.  Here's a clip:

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The argument barely touched on the underlying merits of the case.  Instead, the focus was on whether the claim could even be considered at all under the Byzantine rules erected by the Supreme Court and Congress -- rules that are designed to thwart criminal defendants from challenging their state convictions and sentences in federal court.  Under these often insurmountable procedural hurdles, a claim cannot involve the application of a new rule that was not clearly established by the Supreme Court at the time a defendant's case became final in the state courts.  [UPDATE:  On 11/12/15, the  Ninth Circuit overturned the decision on this ground]  A claim has to be exhausted in state court before being raised in federal court.  If it has not been exhausted it is generally too late to do so.  [UPDATE:   One of the three 9th Circuit judges on the panel would have overturned the decision on exhaustion grounds]  And if it has been exhausted and the state court rejected the claim, it must also be rejected in federal court-- even if the state court erred -- as long as the state court's decision was not "unreasonable."

One often hears the cliché about criminals being released on technicalities. The reality is that far more often a defendant's righteous claims are tossed out based on technicalities. 
The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  Because it is “so wantonly and so freakishly” used, California’s death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down by the Supreme Court in 1972 in Furman v. Georgia.

This is a critical issue going to the heart of whether the death penalty as applied in California is so dysfunctional as to be unconstitutional.  The fact that such a claim might not even be considered on its merits but, instead, could be dismissed on a technicality is further evidence of dysfunction.

Not so funny.