This Day in Liberal Judicial Activism—July 16

by Ed Whelan

2014—Federal district judge Cormac J. Carney issues an order (in Jones v. Chappell) that the death penalty in California violates the Eighth Amendment. According to Carney (a Bush 43 appointee), a death sentence “carries with it the implicit promise from the State that it will actually be carried out”—a “promise” that is made to (among others) the “hundreds of individuals on Death Row.” But that promise has become “an empty one,” as “[i]nordinate and unpredictable delay has resulted in a death penalty system in which very few” individuals are ever executed and in which “arbitrary factors … determine whether an individual will actually be executed.”

In short, Carney believes that California has failed to live up to its “promise” to Ernest Dewayne Jones to execute him—and Carney’s remedy for that supposed failure is to prevent California from ever living up to that imagined  promise to Jones. Never mind, further, that it is judicial intervention and the natural death of inmates that, as Orin Kerr observes, are the primary causes of the low odds that any particular Death Row inmate will be executed and that neither cause is attributable to state officials responsible for administering the death penalty.

In November 2015, a Ninth Circuit panel, without reaching the substantive merits of Carney’s ruling, will reverse his order on procedural grounds.

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