SF federal appeals court leaves state death penalty in place

California’s death penalty was left in place by a federal appeals court in San Francisco on Thursday.

A three-judge panel of the 9th U.S. Circuit Court of Appeals overturned a decision in which a federal judge in Los Angeles ruled last year that the state’s death penalty was unconstitutional because of “systemic delay and dysfunction” in the lengthy appeal process.

U.S. District Judge Cormac Carney said last year that appeals in federal and state courts can take 25 years or more and the result is that only an “arbitrarily selected” few death row inmates are executed.

Carney blocked the death sentence of Ernest DeWayne Jones, who was given a death penalty in Los Angeles County Superior Court in 1995 for the 1992 murder and rape of his girlfriend’s mother.

Jones had appealed in the federal court system through a habeas corpus petition after the California Supreme Court upheld his sentence.

But in Thursday’s decision, the appeals court said that for procedural reasons, Jones did not have the right to challenge the constitutionality of capital punishment delays through a habeas corpus petition.

The court cited a 1989 U.S. Supreme Court decision that said federal courts may not announce new constitutional rules in habeas corpus cases. Instead, decisions in such cases must be based on the federal constitutional law in effect at the time a conviction became final in the state court system, the court said.

Judge Susan Graber wrote in the appeals court decision, “Many agree with Petitioner (Jones) that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary.”

But “because Petitioner asks us to apply a novel constitutional rule, we may not assess the substantive validity of his claim,” Graber wrote.

Judge Johnnie Rawlinson concurred in Graber’s decision. The third judge on the panel, Paul Watford, agreed that the case should be dismissed, but for a different reason.

California currently has 747 condemned inmates, according to the state Department of Corrections and Rehabilitation, but no one has been executed since 2006 as a result of federal and state court lawsuits challenging California’s capital punishment procedures.

Last week, the corrections department announced a proposed new protocol for a one-drug execution procedure. A public comment period on the proposal extends until Jan. 22.

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