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November 20, 2007

A great idea for regulating capital punishment prosecutions

Thanks to this helpful capital literature review from CDW, I see that Adam Gershowitz has published in the Missouri Law Review this great looking new article entitled "Imposing a Cap on Capital Punishment."  Here is the conclusion to give you a sense of what the article argues:

In its three-decade struggle with the death penalty, the Supreme Court has tried and failed to root out arbitrariness.  The Court’s efforts have failed largely because it has focused on regulating the procedure of capital punishment, rather than forcing substantive changes in the criminal justice system. To the extent that the Court has dabbled in substantive restrictions, it has chosen poor proxies such as mental retardation and age, which do not force prosecutors to confront the core problem of selecting only the worst of the worst offenders from the outset. A preferable approach would be for the Supreme Court to impose a cap on the number of death-penalty prosecutions that each jurisdiction can pursue each year.  Such a cap — if drawn based on the national average of death-penalty prosecutions — would bring outlying jurisdictions into the mainstream, rather than allowing those counties to seek the ultimate punishment in both the worst cases and some borderline cases. Imposing a cap on capital punishment would allow more resources to be devoted to each capital defense and would lower the risk of wrongful convictions. A cap on capital punishment therefore would minimize, though certainly not eliminate, the arbitrariness of the death penalty.

November 20, 2007 at 10:51 AM | Permalink

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"A preferable approach would be for the Supreme Court to impose a cap ...."

It may be preferable that a cap be imposed, but I would suspect that even the most ardent living constitutionalists would have a hard time finding authority for the Supreme Court to be the one do it.

Posted by: | Nov 20, 2007 10:59:38 AM

If the Supreme Court ever did something like that, then the Supreme Court should simply be ignored.

Posted by: federalist | Nov 20, 2007 11:13:44 AM

The authority question aside, how would the Supreme Court even (micro)manage such a system? They might as well try to draw every legislative district themselves. Not likely.

Posted by: | Nov 20, 2007 11:14:14 AM

Anonymous said: "even the most ardent living constitutionalists would have a hard time finding authority for the Supreme Court to be the one do it."

Well, maybe not the most ardent. After all, you could fashion a right under the Equal Protection Clause. Although I'd prefer a right to have the prosecutor meaningfully exercise discretion, and perhaps require proportionality reasons in the charging instrument/notice of intent to seek death beyond the eligibility aggravators, and making those reasons reviewable, a cap could be the remedy.

I have another, minor, problem with the paper: its focus on the national average. I completely agree that it's arbitrary that the same crime (or a substantially similar crime) is punished by death in Houston but by a term of years in San Antonio. After all, aren't they using the same playbook (the state statutory regime)? And aren't those state statutes supposed to guide and legitimate the imposition of the penalty? There's no real legitimate source for these intra-state variations. So I really like Mr. Gershowitz's focus on county-county comparisons.

But the Supreme Court has said that states can legitimately make different decisions about the death penalty (such as what constitutes mental retardation). It's tough to get around that, less tough to require a state-wide review. It seems a cap that's tied to a national average instead of an intra-state average isn't exactly "a prophylactic rule that is no more activist than the Court’s current jurisprudence of excluding certain categories of offenders from ever facing the death penalty." Gershowitz at 80.

Posted by: rothmatisseko | Nov 20, 2007 11:41:55 AM

I would suspect that even the most ardent living constitutionalists would have a hard time finding authority for the Supreme Court to be the one do it.

Never underestimate the disingenuousness of Justice Kennedy, particularly on the death penalty.

Posted by: | Nov 20, 2007 12:04:41 PM

A different approach, and one that was pushed for in the Ill. Comm. report a few years back was centralizing the capital charging decisions with the state attorney general. It made sense to me. Let's face it, a county that gets one murder every 10 years is more likely to seek death in that one murder than some place where you get 100+ murders a year, all other facts being equal.

Posted by: name not given | Nov 20, 2007 12:22:50 PM

I suppose a legislature could set a cap on the number of executions but it is difficult to see how a court could do so. I also have difficulty seeing how a cap would settle the argument over the DP. Why don't we have a cap on the number of minorities we admit to prison?

Posted by: John Neff | Nov 20, 2007 12:40:13 PM

I have seen on the blosophere (forgot where) a proposal for a bond, rather than a cap. Any prosecutor that wishes to kill someone would need to post a bond. If the death penalty is not upheld on appeal, he forfeits it. This would limit prosecutions to the ones where there are really bad facts. (Obviously, it would be a felony to tell jurors about this bond.)

This bond requirement would make prosecutors politically accountable – in the short run – and would force all of them to see their DP-discretion as an important task, rather than a professional challenge.

Posted by: S.cotus | Nov 20, 2007 1:23:15 PM

Another example of dodging the difficult moral questions and refusing to face up to the reality that the death penalty is an anachronism that should have been buried after the last lengthy moratorium. The only question that matters is "can the death penalty possibly be (morally) justified in the modern age of advanced security capability and with the advancement of the human condition in the 21st Century". As we know, most of Europe, South America, Africa, neighbors in North America, Australasia and parts of Asia, have accepted that is is not. New Jersey will likely be the next US State to accept that it is not.
This type of report detracts from and hinders the decisions that need to be made.

Posted by: peter | Nov 20, 2007 1:45:27 PM

I would prefer a marketplace approach to limit
the number of capital trials. Simply make the
county in which the case is tried pay for one
half of the cost of the case, both the prosecution
cost and the defense cost. This would impose
some political accountability to prosecutors
for their decision to expend a huge amount of
resources for one case. As it is now, at least
in NC, the cost is spread across the state
and taxpayers in counties less enthusiastic
about capital punishment pay the same amount
for trials as taxpayers in counties where more
cases are tried capitally.

bruce cunningham

Posted by: bruce cunningham | Nov 20, 2007 2:16:42 PM

John Neff wrote:
I have seen on the blosophere (forgot where) a proposal for a bond, rather than a cap. Any prosecutor that wishes to kill someone would need to post a bond. If the death penalty is not upheld on appeal, he forfeits it. This would limit prosecutions to the ones where there are really bad facts. (Obviously, it would be a felony to tell jurors about this bond.)

Funny you should mention that proposal--it's also by Gershowitz. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956380

Posted by: | Nov 20, 2007 3:21:48 PM

Well, I said it.

To me, the biggest problem (far greater than the moral problems) with state-sponsored killings is that the people involved are not really politically accountable. If they win, and get to kill someone, it might be politically popular. If they lose, the prosecutors get to blame someone else. Somehow, prosecutors never seem to take responsibility for wasting money.

Posted by: S.cotus | Nov 20, 2007 3:44:57 PM

I think the suggestion by another poster that the state AG make capital charging decisions makes a lot of sense. After all, the state pays a lot of the costs of the DP; let them decide whether to go for it or not. Also, this will make things more uniform, at least within each state.

Posted by: William Jockusch | Nov 20, 2007 4:59:15 PM

A great idea? This is a solution without a problem. No jurisdiction in the country sentences an excessive number of murderers to death. The problem is the large number of jurisdictions that let too many murderers off with life when they deserve death.

Excessive cost is a problem of course. The answer to that begins with overruling Lockett v. Ohio.

Posted by: Kent Scheidegger | Nov 20, 2007 7:51:49 PM

"As we know, most of Europe, South America, Africa, neighbors in North America, Australasia and parts of Asia, have accepted that is is not.."

Your comment belies the truth: it's not as if these anti-DP positions were adopted with gusto by the people in these countries; they were imposed on them by legislative and judicial fiat. The popular will for the DP is strong in much of Europe (and the world).

Posted by: | Nov 21, 2007 5:09:53 AM

Let me see if I see your point.

Laws imposed by judicial fiat are not valid. I guess this is because judges are generally not popularly elected and are not politically accountable. (Personally I think this is a good thing. I have no use for popular votes or politics since there are no minimum educational requirements for voting. You seem to think that the opinions of non-lawyers and people lacking a graduate education matter. Whatever.)

Laws imposed by “legislative fiat” are also invalid. In your world, legislatures do not represent the “will” of the people, either. It seems that you are arguing that laws passed by the legislature are invalid, too. There is some merit to this. In many countries there are no minimum wealth or educational requirements to sit on a legislature.

Are regulations adopted by the executive also invalid? You didn't mention these.

So, what laws are valid?

While Europeans have some rights to express themselves (not as much as Americans) whatever protests they do have are not aimed at reinstating the death penalty. Instead, most of them seem to be against the US for some reason or other. Are you saying that the only valid ideas are those expressed on talk radio or in stupid protests?


Mr. Scheidegger:

You said, “No jurisdiction in the country sentences an excessive number of murderers to death.”

There are two problems with this statement. First of all, for better or worse, most DP discussion involves not “sentences" but death row populations.

Second of all, “excessive numbers” is a matter of perspective. Obviously, in a state like Texas, where the people are ill-mannered and mostly criminals more people need to be sentenced to death. I would argue that more Texans need to be sentenced to death because right now they do not have enough respect for the law. Look at that movie “Urban Cowboy.” So many crimes and immoral things go on in Texas.

But, in a state like Alaska where the people are nice and well-mannered there even one death sentence is excessive.

Posted by: S.cotus | Nov 21, 2007 10:58:57 AM

I've long thought there should be nationwide caps not only on the death penalty, but on prison sentences, too. They would be allocated to each state per population (not per each state's claimed crime rate). Prison sentences would come in ranges.

Nationwide there would be 150,000 sentences between 0 and 1 year (misdemeanor). There would be 100,000 sentences between 1 and 5 years. 30,000 sentences between 5 and 10 years. 10,000 sentences between 10 and 20 years. 2,500 sentences between 20 and 40 years. 1,000 sentences between 40 years and life.

Again, these would be all divided up amongst the states per population.

We have too many people in prison. This allows for 263,500 people being sent to prison, nationwide, each year. This also includes probation revocations. I don't think there are close to 263,500 crimes each year which deserve being locked up in a small metal cage to basically be tortured. So state DA's will all have to work together to determine which crimes are the most serious, based on the individual case-by-case facts, and which defendants most require incarceration, and they'll only prosecute the worst of the worst. People caught with a gram of cocaine in their pockets simply won't be worth a valuable prison allocation.

The federal government would have its own, similar limits, divided up amongst each federal district; each US Attorney would decide which cases to prosecute and ask for prison.

Note that fines, and alternative punishments would not be prohibited. I might even be willing to compromise on not including revoked probations in the allocated spots.

And of course, each state (which has the death penalty) would be allowed to excute a certain number of people, between 1 and 10 per year based on population (california and texas would each get 10 death sentences per year and can only carry out 10 per year).

If the prosecuting authorities do not responsibly allocate their prison/death spots, once they reach their limit they will be barred from having a defendant sentenced to that punishment for the rest of the year. I suppose they could always hold off on the prosecution until the following year if they really wanted to, but they can't keep the defendant in custody in the interim.

Posted by: bruce | Nov 22, 2007 12:10:32 AM

Just to be clear, I believe my plan could only be accomplished via constitutional amendment (at least with respect to telling the states how they can punish their criminals). Certainly the SCOTUS couldn't pull numbers like these out of their ass the way I sorta did (I stand by my numbers, though, as they're more than sufficient to handle the violent criminals who truly need to be taken off the streets... drub prohibition will not be able to survive, however, and that's the idea).

Posted by: bruce | Nov 22, 2007 12:12:58 AM

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