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August 25, 2009

"Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty "

The title of this post is the headline of this new articleappearing on SSRN from Professor Adam Gershowitz.  Here is the abstract:

In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials.  This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often.  By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness.  The difference between life and death may depend on the side of the county line where the offense was committed.  Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense.

Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties' involvement in the death penalty system.  All aspects of capital cases — charging, trial, appeal, and everything in between — can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases.  This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.

My first reactions is that Adam's proposal makes so much sense that it is almost certainly never going to happen.  In all seriousness, because all (capital) politics is local, I doubt many counties will want to relinquish local capital case control to state-level actors.  Moreover, I doubt many state-level actors will be eager to be on the front lines of what can be, at least in certain states, a third-rail of criminal justice politics.  That all said, this new article is certainly today's death penalty must-read.

August 25, 2009 at 01:42 PM | Permalink

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Interestingly, I recall reading that in 19th century Massachusetts, all capital cases had to be tried in the first instance before the Supreme Judicial Court (that state's highest court), and elite lawyers were appointed to the cases. The article on this is: Rogers, Alan, "'A Sacred Duty': Court Appointed Attorneys in Massachusetts Capital Cases, 1780-1980," American Journal of Legal History, 41 (Oct. 1997)

Posted by: lawstudent | Aug 25, 2009 3:09:18 PM

Texas just got one step closer to admitting it executed an innocent man.

http://www.abajournal.com/news/expert_hits_arson_finding_in_case_that_led_to_defendants_execution/

Posted by: . | Aug 25, 2009 4:04:01 PM

The notable remark in this post is Prof. Berman's prediction that the proposed switch to state courts from county courts will not happen. Assuming the correctness of this academic snob article, the switch would decrease lawyer employment in the death penalty appellate business. Now we are applying the rent seeking theory, despite ourselves. It happens to be the Grand Unifying Theory of Lawyer and Appellate Decisions (the so called GUTLAD).

Perhaps, I missed it. I would appreciate any evidence that the false positive rate (conviction of an innocent person) of county trials is greater than the false positive rate of state trials. Before proposing an elitist remedy, shouldn't the academic twit show some harm is taking place? And don't produce evidence that county court have more trouble with lawyer paper shuffling make work gotchas. That makes them more normal.

Posted by: Supremacy Claus | Aug 25, 2009 4:18:26 PM

Moving it up one level does not guarantee quality. Does anybody really think that CA, with all of its budget problems and legislative fiascos, could really construct the Legal Nirvana that would suddenly sanctify all capital cases as complete, thorough, and beyond reproach? State AGs, moreover, are usually a trial-averse lot. I'm not sure how this proposal would defeat that prevailing sentiment.

Posted by: Large County Prosecutor | Aug 25, 2009 5:29:15 PM

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