California is about to find out if taking three decades or more to execute death row inmates will turn out to be the fatal flaw in the state’s long-faltering death penalty system.

In a case that may be headed to the U.S. Supreme Court, a federal appeals court on Monday will review a Los Angeles federal judge’s startling ruling last year declaring California’s “dysfunctional” death penalty law unconstitutional because of systemic delays in a state with more than a quarter of the nation’s condemned inmates.

In that ruling, U.S. District Judge Cormac Carney concluded that death sentences in California, where there are now more than 750 condemned killers at San Quentin, have been transformed into “life in prison, with the remote possibility of death.”

The ruling has been put on hold while the 9th U.S. Circuit Court of Appeals weighs Attorney General Kamala Harris’ appeal. Despite her own reservations about the death penalty, Harris has urged the appeals court to reverse the decision, saying in court papers the ruling is “fundamentally misguided” because any delays in reviewing the appeals of death row inmates are meant to ensure legal protections to avoid mistakes.

The showdown amounts to a legal referendum on the nation’s most prolific death penalty state, notorious for filling its death row but failing to carry out executions. California has had just 13 executions overall since 1978, and none in nearly a decade — the result of ongoing legal challenges to the state’s lethal injection method.

With at least 40 percent of the state’s death row inmates now awaiting execution for two decades or longer, legal experts say the time may be ripe for the Supreme Court to use the California example to decide whether such delays render a state’s death penalty law unconstitutional.

Condemned inmates in California and elsewhere have tried the argument before, but Carney’s ruling broke new ground — and at least two Supreme Court justices, Stephen Breyer and Ruth Bader Ginsburg, have already urged the court as recently as June to take up the broader question of the death penalty’s legality.

“This is a distinct kind of messy in California,” said Douglas Berman, an Ohio State University law professor and author of the Sentencing Law and Policy blog. “This is not a delay, delay, delay case. It’s a delay as one symptom of a massive problem case.”

‘State itself’ at fault

The case before the 9th Circuit involves condemned killer Ernest Dewayne Jones, on death row for two decades for the 1992 rape and murder of a Southern California accountant. In his ruling, Carney, a Republican appointee of former President George W. Bush, found that delays in cases like Jones’ are “systemic, and the state itself is to blame.”

Specifically, the judge determined that such lengthy delays and detours for death row inmates create an arbitrary path to execution for just a “trivial few” inmates — the type of unreliable system the U.S. Supreme Court has found amounts to cruel and unusual punishment.

From failures to appoint lawyers for automatic death penalty appeals to interminable delays in the California Supreme Court and federal courts, lawyers for death row inmates argue that the problem is not fixable. They are backed in the case by a variety of anti-death penalty groups, as well as several state legislators, including Bay Area state Sens. Loni Hancock and Mark Leno.

“Anybody looking at California’s system recognizes its dysfunction,” said Michael Laurence, Jones’ lawyer and head of a state agency representing death row inmates. “We’re not going to fix it.”

State lawyers and death penalty advocates, however, say there is nothing unconstitutional about a system that moves slowly to protect the legal rights of death row inmates, a large percentage of whom get their sentences overturned in the process.

In addition, one group warned the 9th Circuit that invalidating the state’s death penalty law would “create a new class of inadequately punished murderers,” citing infamous killers such as Charles Manson who had their death sentences commuted to life in prison when the Supreme Court struck down the death penalty in the early 1970s.

‘It’s fixable’

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, scoffs at the argument California’s death penalty is irretrievably broken.

“Of course it’s fixable,” he said. “Virginia fixed their system. They executed the D.C. sniper in less than six years, and that is not unusual there.”

The 9th Circuit is hearing the case at a critical point. State prison officials plan to unveil a new single-drug execution method this fall, a move that could lead to the resumption of executions in a year or two. And there are at least 17 death row inmates who’ve exhausted their legal appeals and are eligible for immediate execution dates if the state’s death chamber reopens.

But the 9th Circuit legal battle puts another layer of uncertainty into the California death penalty equation. And legal experts say if the appeals court backs Carney’s logic, the Supreme Court may have no choice but to intervene.

“If there is a constitutional block (to California’s law) in place,” Berman said, “it’s an absolute certainty the Supreme Court takes it up.”