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November 25, 2006

How can the death penalty be sensibly improved?

Though I suspect death penalty opponents may chime in, the goal of this post is to encourage death penalty proponents to identify and discuss ways to improve the modern administration of the death penalty.  Abolitionists surely believe energies and efforts should go toward eliminating, not improving, the death penalty; but abolition of capital punishment is not politically likely and is arguably undemocratic.  Thus, at this unique moment in the modern American death penalty debate (details here and here and here and here), I am eager to engineer a conversation about possible improvements in the application of the death penalty.

Even the most avid proponent of the death penalty can surely identify numerous flaws in the modern administration of capital punishment.  Whether concerned about wrongful convictions, ineffective defense counsel, inequities based in race, class and geography, or harmful appellate dynamics, few can adore the current realities of the death penalty in the United States.  So, as we think about how best to deal with leftovers, perhaps we can also thinking about how best to deal with improvements to our modern system of capital punishment.

November 25, 2006 at 10:40 AM | Permalink


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Tracked on Nov 27, 2006 2:03:52 PM


A heroin overdose would be painless and humane, though there is likely another narcotic that would be quicker and more certain. It is easy to imagine the outrage at such a suggestion. The blood lust proponents would undoubtedly strongly object to the lack of torture and to death by pleasure. That is so un-American. In rebuttal, one could argue that, for the condemned, knowing when they are going to die is painful enough. How many drug addicts would shoot a fix if they knew it would kill them? The "tough on crime" faction might also argue that such a policy would increase narcotics use: pot leads to heroin; heroin leads to The Last Fix.

A Constitutional Amendment banning the death penalty would be democratic.

Posted by: George | Nov 25, 2006 2:13:41 PM

I may catch heat from some of my friends in the defense bar but here are some of my suggestions. I started off as a quick tirade but....

First, I disagree with your premise that there is not a real chance, politically -- not judicially -- for the death penalty's penalty repeal in large chunks of the country, esp. the northeast. Let me not quibble with the premise and lets agree there are some major overhauls that can be undertaken short of asking the roughly 37 state's legislatures that retain capital punishment to do something. Unfortunately that leaves federal legislation.

Second, let me assume that when you mean "improve" you don’t mean "how can we get more people executed more quickly."

Third, the AEDPA's method of improving post-conviction methodology by offering a series of carrots has failed. At best only a small handful of states tried to comply with the opt-in provisions & only one in fact meets those requirements. If carrots do not work there must be sticks. Repeal the AEDPA’s modifications to the habeas statutes as it is the singularly greatest impediment to the fair & effective administration of rational capital jurisprudence;

Assuming the repeal of the AEDPA does not occur at a very minimum the following must be done in order to provide a stop-gap:

(A) the so-called "deference" standards of 28 U.S.C. Sec 2254 should be eliminated in capital cases for guilt phase issues alone;

(B) the gatekeeper provisions of 28 U.S.C. 2244 should be returned to the pre-AEDPA standards; and

(C.)federal habeas procedural default should be eliminated for all capital case guilt phase claims that are related to innocence/

Regardless of repeal of the AEDPA, over the long haul:

(A) set basic minimum standards for all capital cases, in states that do not meet these minimum qualifications permit removal of the case, akin to certain civil cases, to the federal courts in the first instance;

(B) inexperienced and incompetent counsel must be weeded out -- minimum standards for defense counsel should be set in exchange for receiving funds for criminal justice issues (rather than the “carrot” approach of the AEDPA’s opt-in provision that have proven to be a miserable failure) including the appointment of two experienced defense counsel (see generally 18 USC 3005 & 28 USC 848(q)(5) & (6))

(C.) proportionality review should be mandated in all jurisdictions (again either through direct legislation or limitations based on funds);

(D) no man should be subject to death based solely on the word of one eyewitness without substantial corroboration of that eyewitness to the degree that it would render that eyewitness identification mere surplusage (whether this can be passed as a matter of direct legislation or limiting access to federal grant money for those states who don't comply);

(E) a national panel of experts should be assembled to look at what can be done to establish federally enforceable rules relating to taping of confessions, standards for eyewitness identification, DNA evidence, balancing out "death qualification" of juries in such a way that it removes the increased likelihood of conviction and other ways of ensuring that the "right man" pays for his crimes and not just the guy with the wrong lawyer;

(F) the judiciary (both state and federal) should be encouraged to maintain educational opportunities for judges in the area of the death penalty, consider "death qualifying" judges, and consider encouraging cross-circuit and cross-jurisdictional pollination of ideas on how to improve the system of capital jurisprudence;

(G) safety valves for innocence, like North Carolina's recent "innocence courts" should be established in the federal court system; and

(H) until the "bare bones" fixes above are implemented there should be a national moratorium on executions

[Finally, before the pro-dp contingent rallies around and starts complaining about the 10th Amendment and the banter of "states’ rights" I would remind them of the numerous federal capital prosecutions in places like Vermont and Puerto Rico where the citizens do not want the death penalty & the feds nonetheless seek death.]

Posted by: karl | Nov 25, 2006 8:05:49 PM

First, pass a federal law that requires states (to receive federal funding for anything) to permanently disbar any prosecutor who secures a death penalty conviction which is later overturned due to (1) actual innocence; (2) a substantial likelihood of actual innocence shown by clear and convincing evidence; or (3) prosecutorial misconduct. This law should also apply to federal United States Attorneys, although the federal gov't does not regulate the practice of law. The law can, at the very least, require termination from the DOJ and make it a felony to practice law before any federal court (and maybe state court).

Until there is even a slight consequence, let alone a real punishment, for prosecutors who negligently or intentionally convict innocent people, nothing is going to change with respect to improving the death penalty. As it stands now, convicting an innocent person is a badge of honor among prosecutors. You're so good at your job you can even convict an innocent person! Seriously, it's something prosecutors are proud of, and when the next capital case comes around, if you can convict an innocent person, you'll be the go-to prosecutor.

I realize prosecutors will be weary of conceding a person was wrongly convicted if it means losing their law license. But they already never want to concede a wrongful conviction on the back end and argue about frivilous concepts like "finality" (the state has absolutely no interest in the finality of a wrongful conviction) and "closure for victims" (very few victims would want an innocent person to remain behind bars, let alone be executed, to give them closure). As such, this won't prove to be an obstacle to getting post conviction relief. Rather, the benefit will be on the front end, where prosecutors will know there will be an actual CONSEQUENCE for causing an innocent person to be found guilty and sentenced to death. Any prosecutor who causes an innocent person to be convicted should be disbarred, but especially those who cause an innocent person to face the death penalty. The system cannot work with such people greasing the cogs.

A second improvement would be to require proof in death penalty cases be established beyond all possible doubt. 100%. This basically requires a clear videotape of the entire crime and an admission by the defendant and compelling physical evidence. Maybe 15 cases per year, across the entire United States, would qualify.

A third improvement is that only the absolute WORST most heinous crimes should be death penalty eligible. Murder is not enough. Rape and murder is not enough. Rape and murder and stealing a wallet is not enough. Murdering at minimum 12 people in a single criminal transaction, with the intent to commit said murders (not felony murder situations). This will practically limit the DP to cases where someone intentionally blows up a building or aircraft. And to be clear, killing 12 people over a 25 year serial killer career is not "one criminal transaction."

These three things will make the death penalty comport with due process, equal protection, and the 8th Amendment. But if we're going to start anywhere, let's start with #1. Prosecutorial consequences. Convict an innocent person, be disbarred from the practice of law.

Posted by: Bruce | Nov 26, 2006 1:33:31 AM

Re "harmful appellate dynamics": The best single improvement will be for the United States Department of Justice to promulgate regulations for the appointment, recruitment, and compensation of state post conviction counsel. The US DOJ is now mandated to do issue these regulations by 28 USC 2261 et seq. States which qualify under these regulations by developing the appropriate counsel mechanisms will then have the benefit of expedited review of capital cases in federal court.

Posted by: Ward | Nov 26, 2006 4:09:25 AM

The process needs to be faster. Appoint two appellate judges as trial overseers. Agreeing, they can correct legal error on the spot or order a mistrial in case of uncorrectable error. At least one of the three judges must grant a certificate of appealability on each issue to be reviewed. Have a backup counsel watch and interview lead defense counsel after a guilty verdict about any questionable decisions, and have this on the record immediately. Trial counsel would be disqualified from further formal participation in the case so as not to delay consideration of ineffective assistance claims. (If the defendant really really wants to keep him, he can forever waive any claims of ineffective assistance.)

If there is some especially controversial piece of evidence that might be undermined later, ask the jury in a special verdict form if they relied upon it. Post-conviction press releases saying "that wasn't his DNA on the gun" get a lot of publicity, but if the jury decided he was guilty as an accomplice and not the triggerman the new evidence doesn't change anything.

Put collateral review on the ultra-fast track. A stay of execution may not be ordered unless the judge first finds a very high likelihood of success on the merits.

To counter Bruce's point, defense counsel who is found ineffective in a capital case should ordinarily be disbarred.

Any Hollywood celebrity who agitates for commutation of sentence is deemed to have volunteered to be executed in place of the prisoner.

Posted by: John Carr | Nov 26, 2006 10:26:31 AM

John: If ineffective defense counsel should be disbarred, then nobody would represent capital defendants. Maybe the rule should be defense counsel who is grossly and recklessly ineffective should be disbarred. Like lawyers who fall asleep, never meet the client before the day of trial, and other such egregious things. At least don't let them represent capital defendants.

The other problem is that ineffective assistance of counsel is often a subjective inquiry, with the courts presuming a decision that turned out bad was reasoned trial strategy. Often an affidavit from the lawyer saying "I screwed up, it was not trial strategy, and had I known the law I would have made the proper objection," is the only way someone facing the DP may get a new trial. If you punish lawyers who come forward and fall on their sword with disbarrment, nobody would do it.

You seem to take my suggestion personally, and assume that it should work both ways. It shouldn't. A prosecutor who convicts an innocent person always had notice of the problem before trial, and intentionally ignored it to secure a conviction and execution. A defense lawyer found ineffective was probably trying to do the best he/she could, and failed. Rarely is it reckless behavior, let alone intentional, on the part of the defense lawyer. You propose bad public policy; I propose good public policy.

Posted by: Bruce | Nov 26, 2006 11:01:22 AM

One way to improve the DP would be to bring back mandatory death for certain crimes, e.g., murder in prison and a few others. Of course, the Supreme Court has said that the Constitution somehow prohibits this. I'd like to know where.

Posted by: federalist | Nov 26, 2006 12:47:20 PM


Standards for PC lawyers as the "fix" is a few layers too late in the process. The trial is the "show" & not the post-conviction proceedings.

There are two different problems here. The first is the absurdity that 30 years since the restoration of the death penalty we are still talking about how abysmally bad &/or unethical trial counsel -- both the defense & prosecution -- can be and still be considered good enough. Improving the quality of the "show" will speed up the process and help to guarantee the quality of our national capital sentencing scheme, pretending there aren't real structural problems won't do either. 2261 does nothing to fix the "show."

The other issue is what do we do until we get a solid national standard with cases in the "pipeline." Any changes to 2261 aren't going to help change what happened at the show. Indeed, there are serious, perhaps insurmountable, constitutional issues raised by the amendments to sec. 2261 that are only going to delay things even further and waste more resources that could be spent improving the system -- both capital & noncapital - rather than defending it. (Indeed, the millions of dollars that are going to be spent on the constitutionality of 2261 would seemingly be better spent on putting more cops on the streets rather than more lawyers writings briefs.)

The AEDPA, even with its modification, isn't the fix, it was & is a false hope.

Posted by: karl | Nov 26, 2006 1:58:32 PM

"Improving the quality of the 'show' will speed up the process and help to guarantee the quality of our national capital sentencing scheme...." If this were true, the states that do the best job of providing trial counsel at present would have the shortest delays. It isn't; they don't.

The Powell Committee had the right approach to habeas by offering expedited review in return for better postconviction counsel. The problem was that the states that really qualified were denied the benefits by federal judges with a conflict of interest -- they were the ones impacted by a state's qualification. Therefore, there was no incentive and no political pressure for the others to get on board. Congress has replaced that system with an initial review by USDoJ followed by de novo review by the D.C. Circuit, the only one that doesn't do state habeas.

The reason for using carrots rather than sticks is to fix two (or three) problems at once. A sticks-only approach leaves the problems of excessive delay and arbitrary reversals of deserved sentences uncorrected. AEDPA has been only a limited success in changing these problems because it continues to be flouted by judges who simply want to stop execution of death sentences regardless of how much they have to twist the law to do so.

I would favor an incentive for the states in providing trial counsel. If the states comply with certain very clear, objective criteria, then federal habeas review will be limited to issues relevant to guilt of the crime and eligibility for the punishment. The sentencer's discretionary choice of punishment within the authorized range would be off the table. Learning from the mistake of AEDPA, the decision of whether a state qualifies would have to be vested in a neutral forum, not the very judges whose power is limited by qualification.

BTW, regarding "abysmally bad" counsel, bear in mind that every lawyer whose client is sentenced to death is automatically attacked as incompetent, regardless of the actual quality of representation. I can't recall the last capital habeas case I saw where petitioner did not claim ineffective assistance.

Posted by: Kent Scheidegger | Nov 26, 2006 2:29:54 PM

I would propose that prosecutors have more political accountability for their decisions to prosecute a case capitally and elected judges have less acountability. On the first notion, I think the county in which the case is tried should bear one half of the total cost of the trial. If a county wants to elect a prosecutor who frequently tries murder cases capitally, then the taxpayers of that county should be willing to pay a substantial portion of the cost. I suspect such a system would encourage prosecutors to more carefully select which cases are the subject of such complex litigation.

Second, judges are like anyone else. Mortgages to pay, kids to put through college. They shouldn't jeopardize their jobs by making legally correct, but politically unpopular decisions in a highly publicized case. I think in Minnesota v White, the Supreme Court showed some sympathy for the predicament judges find themselves in concerning these most difficult and emotionally volatile cases. Capital judges should be appointed rather than elected.

Bruce Cunningham

Posted by: bruce cunningham | Nov 26, 2006 5:03:21 PM


Having judges run for office with named opponents on the ballot just like legislators is indeed a problem. However, any proposed solution must consider both sides of the balance. Judges should be able to make "legally correct, but politically unpopular decisions," as you say. But there must be some remedy when judges make decisions which are legally incorrect but fit their personal opinions. The Supreme Court can't reverse them all, as one Ninth Circuit judge has publicly boasted.

When the Framers of the Federal Constitution decided on life tenure, they did not foresee how dangerous the third branch would become. That system overprotects judicial independence to the point of promoting judicial autocracy.

The optimum balance, IMHO, is the California system for appellate judges. They are appointed by the Governor and go on the ballot for yes/no reconfirmation every 12 years. It is almost-life tenure. Only once in 70+ years have appellate judges been defeated, and that was exactly when they should have been.

Regarding costs of the trial, let's start by overruling Lockett v. Ohio and limiting the penalty phase to the circumstances of the crime and the defendant's criminal record or lack of one. Then trials will cost far less.

Posted by: Kent Scheidegger | Nov 26, 2006 5:32:02 PM

Kent, thanks for the comments. As a capital litigator, I am much more concerned about how judges keep their jobs than how they get their jobs. I have personally overheard an elected trial judge in a capital case express concern to a bailiff about what the headlines in the next day's newspaper will be. Judges should not have to look over their shoulders when they are considering a difficult issue in a difficult case. Just consider the saga of Penny White from the Tennessee Supreme Court to see the hazards of retention elections.

Concerning overruling Lockett, that would have minimal impact. The reason is because most of us are now "front-loading mitigation" during capital trials. By that I mean putting on testimony during the guilt phase from mental health experts, social and school evidence, etc., all aimed at the capacity of the defendant to premeditate and deliberate. Sentencing phases are becoming shorter and guilt phases are becoming more loaded with "offender characteristics". I actually start during jury selection talking about mental health, impairment by drugs, etc.


Posted by: bruce cunningham | Nov 26, 2006 8:15:02 PM

Thanks for your comments as well, Bruce. Penny White is a borderline case. The citizens of Tennessee were justified in seeking a change in their Supreme Court at that time. Whether White herself deserved to be booted or simply had the misfortune to be on the ballot at the wrong time and thus a target of opportunity is debatable. The retention election system is not perfect, but it is the least flawed of the systems tried to date.

Your second point brings up a change that I would like to see made across the board in all kinds of trials, civil and criminal. We need tighter controls on scientific evidence. Some of the more disturbing cases of erroneous convictions have involved "experts" giving opinions that have no valid basis in the scientific method. On the defense side, much of the mental health testimony is just unscientific psychobabble. This is particularly true of supposed inability to premeditate. Very few, if any, conscious human beings are unable to premeditate. Properly understood, it is a very rudimentary mental function. I suspect that most of what you "preloading" shouldn't be admissible.

Posted by: Kent Scheidegger | Nov 26, 2006 8:42:38 PM

Two more suggestions which I think should apply to all criminal cases, but especially capital ones.

1. If the jury is deadlocked, it means the state did not prove the case beyond a reasonable doubt and is an acquittal, not a mistrial so they can try again. I've never understood this to begin with. Assuming all 12 jurors are reasonable (which is what voir dire is for), if they are not all convinced of a defendant's guilt beyond a reasonable doubt, that means the state did not meet its burden and the Defendant should be acquitted. 24 hours per similar count of the indictment is more than sufficient deliberation time.

2. Only defendants, not the state, should have peremptory strikes. "We the people" should not be able to exclude we the people because one of us might be more prone to acquit a defendant. The state doesn't have rights, people accused of a crime by the government do.

Make these two changes and all guilty verdicts will be more meaningful and accurate.

Posted by: Bruce | Nov 26, 2006 11:59:15 PM

As a psychologist and lawyer who has offered expert witness testimony and witnessed other mental health experts do the same, I can understand where Kent is coming from. What we know scientifically about cognitive capacity and how it may relate to premeditation is modest at best. Part of the problem is that premeditation is a legal construct while cognition is one of science. Unfortunately, the recent Clark v. Arizona case, in my opinion, was a mistake. By upholding the AZ statute and jettisoning the cognitive prong, the Court seems perfectly happy with mental health experts opining about “moral capacity”. Of course, mental health experts are no experts in morality; but we have made substantial (indeed, very substantial) progress in understanding cognition and its impairment in severe mental illnesses. Thus, rather than encouraging experts to testify about how MI impairs cognition and how that impairment may have effected defendant X – the AZ method essentially takes us back to the Freudian days when doctors relied on ipse dixit. Of course, the conservative approach by the courts can be hardly blamed when you have the APA suggesting in one case that minors possess adult cognitive capacity in making abortion decisions but very little when the death penalty is to be imposed (as Scalia rightly pointed out in a recent DP case, whose name escapes me right now).

Posted by: Steve | Nov 27, 2006 8:22:49 AM

Thanks for adding your valuable insights, Steve. The statute in Clark was certainly subject to criticism as a matter of policy. The question before the Supreme Court was whether it was within the legislative authority to enact. I think it was. The juvenile DP case you are thinking of is Roper v. Simmons.

Posted by: Kent Scheidegger | Nov 27, 2006 10:14:24 AM

Yes, the question before the Court was whether the legislature could enact it. But the reasoning of the Court's opinion was curious in its talk of moral capacity. If we also consider NY's Court of Appeals decision in the Goldstein case that severely limited what experts can testify about in terms of their interviews with collateral contacts (the burden of Crawford), it is a stark day for expert testimony I think. I understand where the courts are coming from, but I think the effect will be that more experts will simply say "he's insane becasue I say so" instead of providing a compelling rationale for how they arrive at their opinions.

On a related note, with the Mott rule in AZ, what would be an orginalist's approach? I consider myself a quasi-orginalist, but no expert in Con Law. Nonetheless, does the insanity defense or deminished capacity have roots in our criminal/constitutional law? I understand this is not exactly a pure con law question as mens rea is not in the constitution, but since mens rea was born from ecclesiastical law and religion and our constitution are so clearly (in my mind at least) rooted together... well it just makes me wonder...

Posted by: Steve | Nov 27, 2006 10:33:25 AM

I agree that there is no one "fix" for the process and that state litigation should be the "show".

Right now, the action is with incentives to the states to improve quality of counsel. The 28 USC 2261 mechanism is one component of that incentive process. Obviously, the Capital Case Litigation Initiative (HR 5672) which provides funding for training for lawyers (defense and prosecution) and judges at the state court level is another response to the ongoing debate about quality of representation and trial practice in capital cases.

Currently, capital cases in federal court are mostly constitutional malpractice suits (ineffective assistance of counsel, prosecutorial misconduct, jury misconduct). They often times occur many years after the events in question. It remains to be seen whether the current concentration on the efficacy of state level processes will make a difference in expediting federal review.

Posted by: Ward | Nov 27, 2006 11:20:35 AM

It may seem heartless to say so, but I'd rather focus on improving the quality of representation in non-death cases.

The fact is, death cases are a miniscule percentage of all criminal cases. If, despite all the attention paid to them, errors persist in death cases, then imagine the error frequency in cases that do not have the benefit of all that extra attention. Cumulatively, the scores of decades wasted away in prison, by defendants who do not belong there, surely outweigh the small number of people wrongly put to death.

Posted by: Marc Shepherd | Nov 27, 2006 4:10:39 PM

The best solution may be remedial legislation modeled on the Voting Rights Act, that singles out states with a history of problematic handling of capital cases, using the enforcement powers established in the 14th Amendment.

Not every state with capital punishment frequently does a poor job of handling these cases. Others, Texas and Virginia come to mind, are notorious for frequently producing bungled cases that result in convictions. These states might be required to be placed under Justice Department supervision, with the Justice Department given standing to bring interlocutory appeals to the federal courts for injunctive relief.

It would also be useful and appropriate to rethink the remedy when an attorney for a defendant makes a procedural mistake, something that is almost always, per se, ineffective assistance of counsel, at least in death penalty cases, and perhaps more broadly. Holding the attorney of record in contempt of court for the mistake, forfeiting that attorneys' compensation in the case, and appointing substitute counsel, in such cases, rather than punishing the defendant for his often appointed attorneys' conduct, would be a more appropriate way to deal with missed deadlines or situations like a grossly deficient appellate brief submitted in a Texas case.

Posted by: ohwilleke | Nov 27, 2006 6:01:22 PM

Who put up this comment thread? Doug Berman, (who seems not to be here), or Kent Scheidegger, who, as usual, seems to need to smother the discussion in order to transmute weak arguments into strong ones via incessant incantation.

How 'bout something new, Kent?

Here - maybe this is something new: It seems to me that pointing out the repetitive nature of your arguments begs a question obvious and most relevant to the discusion - but so far unstated: Why, considering that the question of how to "improve" the death penalty has been around for such a long time (it would seem - certainly for most of the last century - that there has always been a new need to "fix" the "broken" system, usually after a considerable lag), and despite repeated efforts to make the fix, have we failed every time to make it work in an acceptable manner?

And why is this failure not held to account?

How about a statute of limitations on attempts to fix a perpetually broken system?

I'd say, given the historical record and given current trends, the unlikelihood of "fixing" the death penalty system in the U.S. any time soon exceeds the unlikelihood of it being retained for much longer.

Scott Taylor

Posted by: Scott Taylor | Nov 27, 2006 6:10:57 PM

What if every capital conviction were subject to a mandatory "Innocence Project" review?

Posted by: George | Nov 27, 2006 7:24:49 PM

For the death penalty to deter certain acts, it would need to be swift, certain, and fair.

In actual penal practice, a death sentence means decades in prison, followed by a merciful release, so the actual penalty is the agonizing boredom, not the threat of death.

In actual police practice, the death penalty is used to coerce admission to non-capital offenses.

In actual judicial practics, we openly joke about the rich never paying the penalty. And everybody knows prosecutors withold exculpatory evidence routinely, sending the innocent poor to their death to get credit for being tough on crime -- even though this practice is tantamount to conspiracy to commit premeditated murder.

The death penalty should be taken out of the hands of the police, out of the hands of prosecutors, and out of the hands of lawyers who make careers of death penalty cases.

Ending the death penalty would not make these people honest, but it would make their 'misconduct' more difficult.

Posted by: Roy | Nov 28, 2006 9:23:33 AM

I commend Doug for initiating this dialogue. However, as the last several posts indicate, I think a discussion of how to "fix" or "improve" the death penalty is almost hopeless from the outset. Not because the system can't be changed, but because the question posed, by its very terms, lacks definition. To some, improving the death penalty means to make it less likely, harder to implement, etc. To others, improvement denotes changes to make it more streamlined, eliminate delays, etc. There exists a wide chasm between these two definitional approaches, such that what one person calls an improvement, another person calls an impediment.

It is my belief that most opponents of capital punishment do not favor abolition because they like bad people, or support murderers. Rather, it is the principle that they believe in. It is a cause, and they will work ceaselessly to correct the injustice they perceive in allowing the state to take a human life. These people, generally speaking, cannot be convinced that capital punishment is ever justified, under any circumstance. Many of them, whether they will admit it or not, believe that because state-sponsored murder is so abhorrent, any action to thwart, hinder, obstruct, or delay it is morally justified. (As but a single example, see the Morales case in California, where defense investigator Culhane manufactured and forged numerous declarations from jurors and others to support clemency.) Because this faction of the death penalty debate believes so fervently in the correctness of its position, they will actively thwart any efforts at reform. Anything that makes the death penalty process operate more efficiently, i.e. faster, or more likely to lead to executions, they will see as something that must be torpedoed. (As but one example, look at the fact that it took 30 years of fed habeas reform attempts to get AEDPA.) Because of this, I think that any discussion of meaningful reforms is doomed from the outset. For any particular reform, if capital punishments proponents can make a convincing case for why it will make the current process better, they are simultaneously identifying to opponents exactly why the reform must be blocked, amended, or sabotaged in implementation.

To illustrate, some of the reforms suggested above are not designed to make the death penalty work more efficiently; they are designed to eliminate it entirely. Bruce’s draconian suggestion that prosecutors be disbarred any time a capital conviction is overturned for “(1) actual innocence; (2) a substantial likelihood of actual innocence shown by clear and convincing evidence; or (3) prosecutorial misconduct” will not increase reliability; it will simply deter prosecutors from seeking the death penalty. Any prosecutor who practices in the Ninth Circuit will acknowledge that regardless of how strong the case looks at trial, and how ethical he may be, the risk that a federal court will, years later, overturn the conviction based on some alleged prosecutorial impropriety would be too great. Bruce acknowledges this point in his later post where he states that if defense counsel are subject to disbarment for IAC, none would be willing to represent capital defendants. Obviously, the calculus for prosecutors would be the same. And of course, that is the point: where the consequences of taking a particular action are unreasonably high, humans, as a rule, will not act better, or more carefully; they will simply not act. (Three minor digressions re Bruce’s proposal: 1) the standard by which appellate and habeas courts are allowed to reverse a conviction varies, but is never the beyond a reasonable doubt standard, and the trial prosecutor, as an individual, is never a party to post-conviction proceedings. For this reason alone, I think your proposal is unfair, as it condemns a prosecutor to forfeit his livelihood subject to an indeterminate legal standard and in a forum where he is not present to defend himself; 2) I could support, as an alternative, criminal and/or civil proceedings against prosecutors who willfully or recklessly prosecute innocent people (in cap and non-cap cases, by the way). In most jurisdictions, such remedies exist, although perhaps it can be argued that these vehicles need some retooling; 3) Bruce presumes that prosecutors are omniscient, but surely we can agree that in many cases of “actual innocence” where a new technology surfaces years later to exonerate a convicted defendant, the prosecutor was not culpable; rather, he was acting on the evidence then available to him, which only belatedly, and through no fault of the prosecutor, proves inaccurate.)

Moreover, to suggest, as one poster did, that prosecutors routinely withhold exculpatory evidence, is rather inflammatory and irresponsible. Are there unethical prosecutors out there? Of course, and that is a shame on the bar and they should themselves be rooted out and prosecuted with vigor. But just as there are unethical prosecutors, there are also unethical defense attorneys, who sometimes, in capital cases, manufacture allegations of prosecutorial misconduct out of whole cloth. And sometimes, these factually unsupported accusations find a friendly ear in a federal court. If abolitionists are willing to believe that despite a jury's verdict, some capital defendants are nevertheless innocent, they must also be willing to accept that despite a federal court's grant of habeas relief, an allegedly culpable prosecutor might also be ethical. The point is simply that courts are not always correct. Federal courts which reverse capital convictions get the last word simply because federal habeas review comes only after finality of state review; it's not because they are any more reliable than state courts.

Posted by: pat | Nov 28, 2006 10:02:27 AM

My, my, Scott, you have worked yourself into a lather, apparently.

Yes, Doug started the thread, and if you go back and read the initial post you will see that he expressly invited the proponents. Guests invited by the host ought not be disinvited by other guests.

You find the conversation "smothered"? The host doesn't. He says it's "fascinating."

You don't see anything new in my comments in this thread? You've missed a few.

Are there points I have made before? Of course, but that is not limited to me, to my side, or to discussions of the death penalty. It is inevitable in any discussion of a topic that has already been thoroughly discussed.

With regard to weak arguments, one of the weakest is the fallacy of assuming the conclusion, i.e., that the system is "broken."

Posted by: Kent Scheidegger | Nov 28, 2006 1:16:10 PM

Killing to end killing is barbaric and cruel. We should outlaw state murder - there is no way to improve such a thing.

Posted by: anonpd | Nov 28, 2006 1:54:16 PM

anonpd, I am sure that Kenneth MacDuff's victims, if they were still around, would disagree with your conclusion that killing to end killing is barbaric and cruel

With respect to Scott's lathered post, I never really understand the vehemence with which many abolitionists oppose the death penalty. Yeah, I understand that people get worked up about the so-called innocence list, but that usually seems more pretextual than anything else--given that the outrage never seems to extend to the predations, which are far more extensive than the most generous reading of any innocence list, of offenders released back onto our streets or criminal aliens protected by misguided "sanctuary" laws.

To be honest, I think that the vehemence about killing killers is moral preening, a display to the world of how enlightened one thinks oneself. (It reminds me of people who used to criticize the US as being worse than the USSR--a contrarian-ness dabbed with an inflated sense of one's cleverness and morality.) Many judges, I think, fall into this trap. I am sure that Stephen Reinhardt thinks himself the guardian of the constitution and the protector of the weak when he tosses yet another valid sentence. Of course, it's nothing but arrogance and self-importance.

There was an article in a South Dakota paper stating that people in the state should spend time reflecting upon the execution of some triple murderer. What hogwash. There's a war on, and people have a lot more important things to do than spend a moment's thought about the execution of a guy who brutally murdered three people.

Sorry for the ramble. Couldn't help it.

Posted by: federalist | Nov 28, 2006 4:25:44 PM

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