Cruel and unusual

THERE are two reasons for arguing that the death penalty is a “cruel and unusual punishment”, and thus unconstitutional. One was on grim display in Arizona on July 23rd, when Joseph Wood, a double-murderer, took nearly two gasping, choking hours to die by lethal injection. The other came under legal attack on July 16th, when a federal judge, Cormac Carney, struck down capital punishment in California for being too slow and capricious.

In Jones v Chappell Judge Carney struck down the 1995 death sentence of Ernest Jones (pictured), who raped and murdered his girlfriend’s mother. Mr Carney also overturned 747 other capital sentences. Awaiting execution for decades “with complete uncertainty as to when, or even whether, it will ever come,” Mr Carney wrote, is a punishment “no rational jury or legislature could ever impose.”

Of the more than 900 people California has sentenced to death since 1978, only 13 have been executed. The last one died in 2006. The same year, a federal court ruled that California’s mode of lethal injection carried a risk that “an inmate will suffer pain so extreme” that it should be considered cruel and unusual.

With Mr Carney’s ruling, the state’s system of capital punishment has been judged doubly unfit. The average prisoner who is executed in California has spent 25 years on death row—much longer than the national average of nearly 16 years. Such long delays make it unlikely that capital punishment deters other potential murderers, ruled Mr Carney.

Legal observers are surprised by the broad sweep of the ruling but divided about its potential impact. For James Ching, a former deputy attorney-general in California, Mr Carney’s opinion is “quixotic” and errs by attributing all the tarrying to California state courts when federal courts are responsible for “46.2% of the total delay and dysfunction”. The Ninth Circuit Court of Appeals, Mr Ching suggested, will likely regard Mr Carney’s decision sceptically when the state appeals.

But Gil Garcetti, a former Los Angeles County district attorney, has said the Jones ruling is “historic” and shows that “the death penalty is broken beyond repair.” California may have the largest and slowest-moving death row in the country, but it is not the only state where condemned prisoners are more likely to die of old age than the needle. The central point in Mr Carney’s opinion, says Diann Rust-Tierney, head of the National Coalition to Abolish the Death Penalty, is “not simply the length of time” between conviction and execution. “It is the unpredictability.”

Stephen Bright of the Southern Centre for Human Rights says that California’s death penalty is “uniquely dysfunctional”. If and when the case reaches the Supreme Court, it is unclear how it will fare, but Justice Stephen Breyer has been receptive to the delay argument and Justice Anthony Kennedy recently hinted that he doubted that waiting 35 years to die was “consistent with the purposes that the death penalty is designed to serve”. Mr Carney’s decision, says Mr Bright, “has added to the conversation in a way that will lead to the inevitable end of the death penalty in California and the United States.”