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October 31, 2011

Pam Karlan notes "The Cost of Death" for SCOTUS and the legal profession

Professor Pam Karlan has this notable new commentary in the Boston Review on "The Cost of Death" that puts an extra little spin on the arguments concerning the extraordinary resources spent (and arguably wasted) on capital cases in the United States.   Here are excerpts:

Samuel Johnson famously remarked, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”  But precisely because it so concentrates the public mind, capital punishment has distorted the criminal justice system.  Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended....

The [Supreme] Court’s rules single out capital cases for special treatment, directing that the notation “CAPITAL CASE” appear at the beginning of any such request for review and mandating that the government, which often waives its right to reply, file a response.  The clerk’s office has a special staff attorney charged with overseeing the voluminous, often last-minute filings in death penalty cases.  The justices and their law clerks often scrutinize the filings with great care.  The bar has also responded: death row inmates typically receive superb legal assistance before the Supreme Court.  Former Bush Administration Solicitor General Gregory Garre is now representing [Cory] Maples.  Current Solicitor General Donald Verrilli previously represented several death row inmates pro bono before the Court.

But the concentration on capital cases comes at a cost.  Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and impenetrable procedural thickets are hardly unique to capital cases.  Nonetheless, the Court is far less likely to pay attention to these claims when the consequences to the defendant seem less harsh....  And while the Court has repeatedly considered whether a death sentence is proportionate to a particular class of crimes —for example, barring death sentences for non-homicide offenses or for juvenile or mentally retarded defendants — it has set virtually no limits on the severity of prison sentences.  In the 40 years that the Court has been actively policing capital punishment, prison sentences have lengthened and the U.S. prison population has skyrocketed.  With execution at the top end of the scale of punishment, a life sentence begins to look something like leniency, and other sentences are inflated in turn.

Capital cases also consume thousands of hours of legal services from some of the finest legal minds in America. The time those lawyers spend challenging death sentences of inmates whose guilt is not seriously in doubt could be spent preventing and remedying wrongful convictions, ensuring that all defendants receive prompt appointment of competent counsel, and attacking draconian prison conditions, not to mention providing civil justice to poor and disenfranchised people.  But as long as the death penalty is with us, superb and committed lawyers at organizations such as the Southern Center for Human Rights, the Equal Justice Initiative, and the NAACP Legal Defense and Educational Fund will find themselves defending the lives of a few while the lives of many others continue to be ruined by pervasive flaws in our criminal justice system.

Regular readers know I have great affinity for the sorts of points that Professor Karlan is making here (and I am grateful she notes my work in a portion of this commentary I have not quoted).  Regular readers also know that I express my concerns by often urging SCOTUS and others int he legal profession to try to avoid getting too obssessed with and/or distracted by capital cases.  Of course, Professor Karlan is urging the most direct route to ensuring American lawyers stop too obssessed with and/or distracted by capital cases — namely, that through legislative repeal, we collectively stop having any American capital cases.

October 31, 2011 at 03:40 PM | Permalink


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"Of course, Professor Karlan is urging the most direct route to ensuring American lawyers stop too obssessed with and/or distracted by capital cases — namely, that through legislative repeal, we collectively stop having any American capital cases."
Were so you committed to the same solution, policy and advice - unanimity from academia would do much to concentrate the minds of the legislature.

Posted by: peter | Oct 31, 2011 5:48:57 PM

The best and perfectly obvious way to cut back on the expense and delay of death penalty litigation is to cap both. Specifically, we should cap the litigation at seven years (doing so by requiring expedited filing and judicial disposition of DP cases). Virginia does it in an average of seven years, and so can any other state that puts its mind to it.

As to expense, cap that too. One million dollars per side, that's it. People will use unlimited money if you give them unlimited money. A million is more than enough.

This problem is not all that hard to solve. What's needed is the will to solve it.

Posted by: Bill Otis | Oct 31, 2011 6:12:17 PM

Review of
Virginia’s System of
Capital Punishment 2001

"The findings are equally clear that whether a defendant charged with a capital-eligible crime actually faces the death penalty is more related to the location in the State in which the crime was committed than the actual circumstances of the capital murder. In terms of the judicial review process, the reversal rate for death sentences in Virginia is low. At the earliest stage of judicial review, procedural rules that limit the Virginia Supreme Court’s review of claims of trial error, have little impact. However, during the later stages of post-conviction review, both the State and federal courts strictly adhere to procedural restrictions that substantially limit the number of claims of trial error that are reviewed on the merits. Because both the State and federal appellate courts strictly apply these standards, a substantial proportion of claims related to the fairness of capital murder trials are never considered during the post-conviction review process."

Posted by: peter | Nov 1, 2011 5:53:57 AM

A faster and cheaper solution:
¶1. Death penalty remains 12-0.
¶2. Execution by beheading defendant, in the court room, by the jury foreperson, immediately after polling the jury.
¶.3 No motion for new trial, no appeal.
¶.4 If defendant innocent and trial infected by prosecutorial defiance of Brady rule, then summary execution of the prosecution (prosecution retains absolute immunity from civil liability, but immunity from Samurai blade questionable).
¶.5 If defendant innocent and trial infected by prosecutorial misconduct of knowingly suborning perjury (jail house snitch lying by claiming a defendant's "confession"), then summary execution of both or more.

☺ Stresses importance of the old DOS prompt:
"Are you sure y/n" ☺

Posted by: JAG | Nov 1, 2011 10:29:25 PM

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Posted by: kristin | Nov 4, 2011 6:47:48 AM

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