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June 29, 2006

Thickening the capital/non-capital debate

Over at Concurring Opinions, Dan Filler here takes note of my constant harping that "that capital cases receive too much scrutiny" relative to other criminal justice issues.  And, in an effort to "thicken the discussion a bit," Dan provides an effective account of why the death penalty may deserve special attention (although I surmise even Dan might be willing to concede that now it gets too much special attention).

Because I like my blog discussions (and my milkshakes) extra thick, let me fill out why I resist (and keep complaining about) the tendency to give excessive attention to the death penalty:

1.  The death penalty is a regional issue with little or no impact in most of the country.  As these DPIC statistics highlight, early 85% of all executions in the modern era have taken place in the south, and only three states (Texas, Virginia, Oklahoma) account for more than half of all executions.  Thus, extended focus on the death penalty largely ignores day-to-day criminal justice realities in most of the country.  To suggest a goofy (and inexact) analogy, would it make sense for persons concerned about national road safety to excessively study driving when the temperature is over 100 degrees, but not examine driving when it is cold and snowy?

2.  Death is so different that it often can skew the development of the law.  Much of habeas law has been badly distorted by the reality that death row defendants are (understandably) eager to delay their execution through litigation.  Similarly, I fear that courts have resisted granting non-capital sentencing defendants more sentencing rights and protections because capital sentencing jurisprudence has become so ugly and burdensome.

3.  Innocence issues aside, the very worst defendants get (very limited) benefits from all the time and attention give to capital cases.  Everyone on death row has been convicted and sentenced to death for murder, and the only alternative to execution is typically life in prison.  Putting innocence issues aside, all the time and energy spent on capital punishment functionally impacts whether a bunch of murderers get to spend more or less time locked in a cage before they die.

4.  Our massive criminal justice systems implicate many issues that get little attention.  As partially detailed here, nationwide there are roughly 40 people serving life sentences for every defendant on death row (some for non-violent crimes).  More than 10,000 state felony sentences are imposed for every single death sentence imposed.  Also, for each execution, roughly 11,000 persons are released from prison.  And yet, the imposition of life sentences, state felony sentencing, and reentry issues together probably receive less than half of the attention given to capital punishment.

June 29, 2006 at 06:05 PM | Permalink


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The best reason to focus on capital punishment is a canary in the mine theory.

High capital punishment rates in places like Texas are a symptom of particularly sick criminal justice systems. It is a regional issue because the South it far behind the rest of the county in the fairness of their criminal justice systems, particularly at the state level. After the South, the federal system's draconian sentencing is ailing most seriously.

This isn't to say that other states are paragons of virtue. California's three strikes law, for example, is a nightmare, and the grittier day to day operations of California's system are nothing to write home about. But, most state court criminal justice systems outside the South are far less out of whack.

Posted by: ohwilleke | Jun 30, 2006 6:10:48 PM

The South it far behind the rest of the county in the fairness of their criminal justice systems...............

You said that so well. This is a fact proven by The Studies of "40 years after Gideon," and all of the ongoing Capital cases in Louisiana. LA's Public Defender's system is in such disarray the Attorney General has became involved, the US Department of Justice is being called on for assistance, The Supreme Court Justice has addressed the Legislators advising them to 'FIX' the problems post Katrina- due to Katrina- there are more problems. Prosecutorial misconduct is just as rampant as Defender issues. In crucial parts of trials, evidence is withheld while the Defense attorneys look the other way. I have personally witnessed a DA 100% denying information to the court in one closing arguement-then submitting the exact same evidence in the trial closing arguement. Those who represent the Justice department takes no issue in breaking judicial laws while inflicting the deah penalty. 'Gideon' should study the rest of the parishes in Louisiana- and there should be a moratorium on the death penalty until such issues are addressed and resolved. I am ashamed of the Judicial department and the laws they fail to uphold while at the same time sentencing someone to death. Because of the way those officers of the court conduct themselves in LIV parish- they too have blood on thier hands - no different than those they try. The Center for Public Integrety should take more action throughout the south. Amen.

Posted by: Louisiana Citizen | Sep 29, 2006 11:21:42 AM

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