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February 23, 2013

"Living Death: Ambivalence, Delay, and Capital Punishment"

The title of this post is the title of this interesting looking new paper by Marianne Mimi Wesson now available via SSRN. Here is the abstract:

Most discussions about capital punishment in the United States treat the distinct phenomena of death sentencing and execution as joined: in the ordinary case, it is assumed, the first will lead eventually to the second.  But in fact it is exceptional for a death sentence to cause the death of the individual sentenced.  During the entire modern death penalty era, since 1976, the ratio of death sentences pronounced in the U.S. to those carried out has been about six to one.

This Article seeks to investigate the causes of the disparity.  It surmises that our tolerance for it grows out of political and institutional ambivalence about capital punishment, and undertakes to identify which actors and processes enact this ambivalence and thus hinder the conversion of death sentences into executions.  My research assistants and I chose a small number of jurisdictions that we found representative in which to study the post-sentence careers of death row inmates.  We considered the roles of death while in prison, executive clemency, and federal habeas corpus intervention in creating attrition from death row, but taken together these events failed to account for all (indeed, even very much) of the disparity.  We investigated in more detail the frequency of sentence reversal by postconviction appeal or collateral state remedies, but contrary to expectation, we found that these processes could not account for the disparity we had observed.

We then undertook a more granular study, following the careers of a cohort of death row inmates, all of whom resided on death row in 1995 (and nearly half of whom still reside there today).  Our findings suggest that the most powerful explanation was simply delay. Our study population consists entirely of prisoners who have been under sentence of death for seventeen years or longer, yet more of them (in some of our jurisdictions many more) are still alive and under sentence of death than have been executed.  To be sure, necessary and expected legal processes consumed some of the intervening years, and the Article investigates and discusses the developments in capital punishment law that have contributed to impeding the march of execution.

A variety of measures have been designed to hasten the processing of capital cases between sentence and execution, but they have been unsuccessful.  Since 1976, the typical interval between sentence and execution has grown markedly over time, cannot really be explained by necessity, and begins to resemble a permanent feature of the system of capital punishment. Although predicting the outcome of individual cases is difficult, it appears that many death sentences that have not been carried out will never be carried out, and that we have accommodated ourselves to this reality.

In closing, the Article discusses the implications of these observations for our national conversation about capital punishment, considers the recent landscape of explicit death penalty abolition activity (especially in California), and makes some predictions about the future of capital punishment.

February 23, 2013 at 01:02 PM | Permalink

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Comments

"we have accommodated ourselves to this reality."

Because of lawless judges, for the most part.

Posted by: federalist | Feb 23, 2013 1:04:15 PM

So the truth comes out at last. It's not that the legal process takes all that much time. In the words of the article, "Our findings suggest that the most powerful explanation was simply delay."

The country is properly hesitant to inflict the ultimate punishment, and the hesitancy easily translates itself into delay. But reluctance isn't refusal (see Prop 34, results), and delay is hardly incapable of remedy.

Last year, the country executed as many as it had the year before, and in the past three years, we executed as many killers (one more actually) than we had in the three years before that.

Japan recently re-started executions; the electorate in a very liberal state, California, decided to keep capital punishment; and the DP has never been ended by a vote of the people.

The DP is deliberate, sure. And so it should be. But the idea that it's dying is simply contrary to fact.

Posted by: Bill Otis | Feb 23, 2013 1:54:30 PM

I thought this was a very interesting-looking article, especially in its willingness to try to dig into the case-specific nitty-gritty behind the stats in a few sample jurisdictions. What it didn't do (but perhaps some future researcher could) is a comparably detailed analysis of one or more of the states that is at the more effective end of the spectrum when it comes to handling its death-penalty docket (either in terms of percentage of sentences imposed that are carried out or just in terms of quicker median time to either get the sentence carried out or end any continuing uncertainty by having the sentence vacated for good). What are those states doing and is it replicable by other states?

Posted by: JWB | Feb 25, 2013 5:55:54 PM

I would love to see the data on this issue from the various states and federal court districts. How long is the average direct appeal in states? How long between the judgment on direct appeal and any trial court judgment on post-conviction appeal? How long between the trial court judgment and the resolution of the post-conviction appeal? How long in federal district court on habeas? How long in the federal appellate court on habeas?

Some states do a relatively good job on the paperwork end of the appellate process (getting the transcripts and the briefs done within 8-9 months of the conclusion of the trial/post-conviction hearing). They then get the case set for argument quickly and an opinion within six months of the argument.

Likewise, some federal district courts do a good job of doing the appellate-like function of reviewing the state court record under AEDPA. Others take two to three years doing the same thing despite the encouragement in federal statute to prioritize capital habeas litigation. Putting aside the method of execution litigation. States and federal courts have shown that a competent review of the appellate issues through denial of cert of federal habeas can be done in eight years or less. It would be good to know where that part of the process is taking longer and in what courts.

Posted by: tmm | Feb 27, 2013 11:14:52 AM

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