Skip to main content

Do death penalty delays make it 'cruel and unusual'?

By Paul Callan, CNN Legal Analyst
September 8, 2014 -- Updated 1114 GMT (1914 HKT)
STORY HIGHLIGHTS
  • Paul Callan: Death penalty is major topic after reports of botched executions
  • Callan: A federal judge in California recently ruled against death penalty in that state
  • Argument that delays make the punishment unconstitutional don't hold up, he says
  • Callan: We can differ on death penalty, but length of appeals isn't a reason to invalidate it

Editor's note: Paul Callan, a CNN legal analyst, is a former New York homicide prosecutor and a senior partner at Callan, Koster, Brady and Brennan, LLP. Follow him on Twitter: @PaulCallan. The opinions expressed in this commentary are solely those of the author. CNN's original series "Death Row Stories" explores America's complex capital punishment system. Join the conversation about the death penalty at facebook.com/cnn or Twitter @CNNOrigSeries using #DeathRowStories.

(CNN) -- The issue of whether the death penalty in America is administered in a cruel and unusual manner has jumped back into the headlines with botched lethal injection executions in Oklahoma and Arizona.

The Arizona case includes reports that the process took in excess of an hour and a half while the prisoner emitted sounds variously described as snoring or gasping for air.

This month, a federal judge decided to overrule the U.S. Supreme Court in striking down the California death penalty as a form of "cruel and unusual" punishment.

Paul Callan
Paul Callan

Judge Cormac Carney blasted a "dysfunctional" California justice system that leaves hundreds of murderers "languishing" on death row awaiting only the remote possibility of execution. The implication is that convicted rapist/murderer Ernest Jones suffers from some constitutionally impermissible form of mental torment in being forced to wait too long for an execution that may never come.

The prisoner's 25 years of anguished death contemplation, incidentally, was caused in large part by the state and federal appeals he filed seeking to stop or postpone his execution. The judge blames only California for this delay, rather than the prisoner filing the endless appeals.

Arizona execution raises questions over novel lethal injections

The judge apparently assumes that each time Jones wins yet another postponement of his execution, he suffers more. The ruling reminds me of the old story of the man who murders his mother and father and later pleads for the mercy of the court on the grounds that he is an orphan.

Botched execution: Victim's family speak out

In the meantime, his victim, Julia Miller, the mother of his girlfriend, remains buried in the cold ground, her opportunity to experience anguish having last occurred when she was bound with a telephone cord, gagged with rags in her mouth, raped and then stabbed 14 times, including once in her vagina.

Two kitchen knives were protruding from her neck when discovered by her distraught husband of 30 years. Eight months later, he too was gone, having "grieved himself to death," according to his daughter during the penalty phase of Jones' trial. There was no doubt of guilt here, given iron-clad evidence including Jones' sperm that was DNA identified after recovery from the victim.

Opinion: Botched executions can't be new norm

This unpleasant recitation of the facts of the case was conveniently omitted from the judge's decision and a New York Times editorial endorsement of the concept that procedural delays in the appellate process are "cruel and unusual" punishment. With a little refinement and some well-funded legal defense projects, the Times and the judge could probably empty most of America's prisons with this theory.

Though the judge painstakingly attempts to establish that Jones bears little responsibility for the delay, the argument is disingenuous. Most of the appellate review was sought by Jones, and though slowed by state funding deficiencies, it never would occur but for the prisoner's filings. Yes, he has a right to appeal, but the law does not permit a cancellation of the penalty when the review process is slow.

The ruling is also astonishing in that the U.S. Supreme Court has in the past upheld death by firing squad, hanging, lethal gas, electrocution and lethal injection. None of these methods of inflicting death violate the Eight Amendment's prohibition against cruel and unusual punishment, according to the high court.

Opinion: Five ways to improve the U.S. death penalty

These methods surely impose a level of suffering far in excess of Jones' mental distress occasioned by the system's "arbitrary" and "capricious" failure to put him swiftly to death. The court has also ruled that the death penalty properly serves a legitimate societal interest in "deterrence and retribution."

To contend seriously that Jones suffered "cruel and unusual punishment" in not being swiftly put to death is a mockery of sensible legal analysis and simple common sense. The Supreme Court has examined this concept of procedural delays as a basis for attacking the death penalty and rejected the notion in a line of cases arising from a legal concept known as "laches." Though rarely invoked, it stands for the proposition that unwarranted delay can be so prejudicial that the court can refuse to impose an otherwise legal penalty.

Cormac's widely heralded decision is actually damaging to serious efforts to abolish the death penalty in America because it is nonsensical and so heartlessly impervious to the suffering of the unmentioned victim.

Lethal injection explained

Before the death penalty can be eliminated, the public must be convinced that the punishment of death is barbaric and purposeless in modern society. Death penalty opponents squander their credibility with the public by adopting Jones' case as an example of death penalty injustice. Given the barbarity of Jones' crime, this is a poster case for administration of the death penalty after appropriate appellate review and safeguards.

Death penalty facts that may surprise you

The supreme irony here is that opponents of the death penalty, who have spent years attempting to slow and obstruct its administration, are now asserting that the very deliberate examination of death penalty cases that they advocate has caused the penalty to become a form of "cruel and unusual" punishment. This is intellectual dishonesty and hypocrisy at its worst.

Reasonable people can differ about the propriety or even the morality of the death penalty. I remain deeply conflicted myself about the appropriateness of the punishment in modern America. Supreme Court justices have spoken of "evolving standards of decency," and at some point in the near future, this country may join the ranks of other Western democracies in banning the ultimate penalty.

But the final decision on this important issue should not be made by a single federal judge parsing through a statistical analysis of how long it takes to process the innumerable appeals filed at the explicit request of convicted murderers. The decision should be made by majority vote in the democracy we cherish, or less optimally by the Supreme Court of the United States.

Those who seek in good conscience to abolish the death penalty need to select the cases that demonstrate their claim of injustice carefully. They need also to remember to tell us about the victims who lie silenced forever. And they should never advance an argument such as the one used in the case of Ernest Jones. For it is abundantly clear that the lengthy contemplation of a death so richly deserved will be never be viewed as cruel and unusual under the U.S. Constitution.

Read CNNOpinion's new Flipboard magazine

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
October 22, 2014 -- Updated 2101 GMT (0501 HKT)
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
October 23, 2014 -- Updated 1619 GMT (0019 HKT)
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
October 21, 2014 -- Updated 2235 GMT (0635 HKT)
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
October 24, 2014 -- Updated 1336 GMT (2136 HKT)
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
October 23, 2014 -- Updated 2208 GMT (0608 HKT)
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
October 23, 2014 -- Updated 2154 GMT (0554 HKT)
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
October 24, 2014 -- Updated 1621 GMT (0021 HKT)
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
October 21, 2014 -- Updated 2006 GMT (0406 HKT)
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
October 23, 2014 -- Updated 1414 GMT (2214 HKT)
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
October 21, 2014 -- Updated 1600 GMT (0000 HKT)
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
October 21, 2014 -- Updated 1135 GMT (1935 HKT)
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
October 21, 2014 -- Updated 1312 GMT (2112 HKT)
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
October 21, 2014 -- Updated 1851 GMT (0251 HKT)
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
October 21, 2014 -- Updated 2207 GMT (0607 HKT)
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
October 20, 2014 -- Updated 1329 GMT (2129 HKT)
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
October 20, 2014 -- Updated 2012 GMT (0412 HKT)
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
October 20, 2014 -- Updated 0336 GMT (1136 HKT)
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
October 20, 2014 -- Updated 1223 GMT (2023 HKT)
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
October 20, 2014 -- Updated 0221 GMT (1021 HKT)
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
October 22, 2014 -- Updated 1205 GMT (2005 HKT)
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
October 20, 2014 -- Updated 1300 GMT (2100 HKT)
The world's response to Ebola is its own sort of tragedy, writes John Sutter
October 17, 2014 -- Updated 2033 GMT (0433 HKT)
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
October 18, 2014 -- Updated 1722 GMT (0122 HKT)
When you hear "trick or treat" this year, think "nudge," writes John Bare
October 18, 2014 -- Updated 0442 GMT (1242 HKT)
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
October 17, 2014 -- Updated 1345 GMT (2145 HKT)
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
October 16, 2014 -- Updated 2043 GMT (0443 HKT)
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
October 18, 2014 -- Updated 0858 GMT (1658 HKT)
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
October 17, 2014 -- Updated 1342 GMT (2142 HKT)
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
October 17, 2014 -- Updated 1221 GMT (2021 HKT)
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
October 16, 2014 -- Updated 2027 GMT (0427 HKT)
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
October 16, 2014 -- Updated 0407 GMT (1207 HKT)
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
October 15, 2014 -- Updated 1153 GMT (1953 HKT)
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
October 16, 2014 -- Updated 0429 GMT (1229 HKT)
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
October 20, 2014 -- Updated 1653 GMT (0053 HKT)
Paul Callan says the Ebola situation is pointing up the need for better leadership
October 15, 2014 -- Updated 2245 GMT (0645 HKT)
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
October 15, 2014 -- Updated 1700 GMT (0100 HKT)
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
October 15, 2014 -- Updated 2301 GMT (0701 HKT)
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
October 14, 2014 -- Updated 1744 GMT (0144 HKT)
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
October 18, 2014 -- Updated 1335 GMT (2135 HKT)
Stop thinking your job will make you happy.
October 15, 2014 -- Updated 0208 GMT (1008 HKT)
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
October 14, 2014 -- Updated 1125 GMT (1925 HKT)
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
October 13, 2014 -- Updated 1303 GMT (2103 HKT)
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
October 14, 2014 -- Updated 2004 GMT (0404 HKT)
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
October 13, 2014 -- Updated 1307 GMT (2107 HKT)
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
October 13, 2014 -- Updated 2250 GMT (0650 HKT)
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
October 11, 2014 -- Updated 1543 GMT (2343 HKT)
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT