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January 14, 2007

More long weekend reading

If you have finished these articles, be sure to check out this new addition on SSRN during the extra federal day off:

Adam M. Gershowitz, Pay Now, Execute Later: Why Counties Should Be Required To Post a Bond To Seek the Death Penalty

Abstract: When death sentences are reversed – and many of them are reversed for prosecutorial misconduct, ineffective assistance of counsel, and other reasons – local prosecutors are not forced to fully internalize the costs of their failed prosecutions. While counties make the decision to seek the death penalty, they do not have to fund the very expensive appellate and post-conviction stages of capital cases that are typically handled by state attorneys general's offices. This paper proposes that state legislatures could improve the functioning of the death-penalty system, while simultaneously acting out of financial self-interest, by requiring counties to post (and possibly forfeit) a bond to seek the death penalty. Faced with the prospect of losing a bond if the capital prosecution fails at trial or on appeal, local prosecutors would have an incentive to choose their capital cases more carefully and to avoid any type of misconduct that might lead to reversal on appeal. The prospect of forfeiting a bond also would create secondary benefits, such as encouraging prosecutors to protest the appointment of unqualified defense lawyers in order to stave off ineffective assistance of counsel claims. As a financial matter, the bond proposal should be appealing to state legislators because it would shift the exorbitant costs of failed capital prosecutions away from state budgets and into the hands of the county actors who instigated the failed prosecutions.

January 14, 2007 at 09:25 PM | Permalink


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» Should Counties Be Required to Post a Bond When Seeking Death? from StandDown Texas Project
That's the provocative question that South Texas College of Law prof Adam Gershowitz asks in a paper added at SSRN. The title is, Pay Now, Execute Later: Why Counties Should Be Required To Post a Bond To Seek the Death [Read More]

Tracked on Jan 15, 2007 1:14:24 PM


Can we get judges, who screw up the law, to pay for their foibles? Given the "death is different" attitude among so many members of our esteemed bench, it seems hardly fair that counties should bear the burden of death cases struck down when we have so many erroneous reversals. And why, while we're at it, do we stop at death cases?

Posted by: federalist | Jan 14, 2007 9:42:02 PM

I read the introduction and don't have time for the rest. It's an interesting idea that I don't think can work.

The paper opens by noting that big cities with a lot of violent crime have a lot of capital cases, which is not really indicative of a problem and won't be fixed with a bond. Harris County has a billion dollar annual budget. The suggested $300,000 bond is .03% of the budget.

Now what happens if there is a murder in a county with a population of 10,000? Forcing the small town prosecutor to forego capital punishment is not a way to avoid arbitrary treatment. I suppose the bond proposal would formalize the policy that killing rich people is worse than killing poor people.

If I recall correctly, federal prosecutors must obtain the permission of the Attorney General before seeking the death penalty. That seems like a simpler solution, as long as there is a way around the problem of an AG who doesn't like capital punishment and vetoes all requests.

I believe that our justice system would be more fair overall if there were no federal collateral review of death sentences and the energy were directed instead at other cases involving long prison terms.

One project could be to find a way to compensate defendants who are acquitted after an unreasonably aggressive prosecution but don't meet the high standards currently required to win compensation for the government.

Posted by: John Carr | Jan 14, 2007 10:35:54 PM

In some states there are already significant financial barriers that tend to prevent a small county from seeking the death penalty. Often they have a part time county attorney with no experience in trying a death penalty case so they have the additional expense of bring in hired guns to help with the prosecution. Larger counties have full time attorneys and are more likely to have experience with prosecution of a death penalty case and can afford to post the bond. If you are trying to devise a tactic aimed at reducing the number of death penalty cases you need to think again.

Posted by: John Neff | Jan 15, 2007 8:38:08 AM

Thanks for taking a look at my article. I wanted to clarify a few points that may not be clear from the abstract or the introduction. First, only certain big cities seek the death penalty often. For example, while Philadelphia does, New York City doesn't. Second, while a $300,000 bond amount might not have any effect on a county with a huge budget, Harris County (and some other places) seek the death penalty up to 15 times per year. That adds up to $4.5 million -- big money to most places. Finally, with respect to smaller counties, they already seek the death penalty rarely because of the overwhelming financial cost. But when a heinous case arises they are sometimes willing to take the financial hit, and the states will sometimes provide them with financial assistance. Small counties might get the same financial assistance from states to help them post the occasional bond, thus essentially leaving the status quo in place for those small counties.

Posted by: Adam Gershowitz | Jan 15, 2007 10:24:17 AM

Mr. Gershowitz, New York City can't seek the death penalty in state prosecutions because NY's death penalty has been ruled unconstitutional for some years now.

Posted by: Poirot | Jan 15, 2007 11:33:51 AM

NYC does not seek the death penalty because the New York Court of Appeals does not like capital punishment and keeps invalidating the laws or sentences under the laws, and because juries are less likely to convict. The second point is discussed in a New York Times article published September 21, 2003 titled "Prosecutors Seek Fewer Executions, Signaling New Wariness". The article also notes the effectiveness of a threat of execution in forcing a plea bargain. The Court of Appeals doesn't care for the law being used that way.

Individual personality is also relevant. The Bronx DA was (is?) personally opposed to capital punishment and by policy never requests it. In 1996 the Governor had the Attorney General take over a case involving a cop-killer, but he can't personally review and intervene in every murder case.

Posted by: John Carr | Jan 15, 2007 11:57:23 AM

John Neff, most of those sorts of counties where I practice, and I presume counties in other jurisdictions, bring the State on board as a "special prosecutor" and don't bear the costs.

Posted by: anonpd | Jan 15, 2007 8:52:11 PM

anopd, You are correct that is an option for some counties but it is my understanding that in some states the county has to pay. We had a murder trail some years ago that was prosecuted by an Assistant State Attorney General. There was a conviction and the offender was sentenced to LWOP. The conviction was later overturned because of misconduct by the prosecution and the man was released and several years later he committed a murder and is now back in prison. With that kind of record there is not a lot of interest in having the State Attorney General take over the prosecution.

Posted by: John Neff | Jan 16, 2007 9:02:01 AM

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