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February 13, 2007

Examining capital prosecutorial discretion

Dpgraphic Sophisticated sentencing fans realize that some of the most interesting and dynamic issues revolve around the exercise of prosecutorial authority and discretion.  (For a few recent examples, consider the recent Cassell opinion or  border agents case or the Genarlow Wilson case or the capital craziness in Arizona.)  This is especially true in the context of the modern application of the death penalty in the United States.

Consequently, I am very pleased to be participating in an exciting conference co-sponsored by Saint Louis University and Washington University School of Law entitled "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri."  The conference takes place on Friday, March 2, 2007, and this webpage provides more details (including a schedule and participant list).

As this overview details, at the conference "scholars will present the results of a study of 1044 homicide cases in Missouri," which shows that local prosecutors "made the majority of [capital sentencing] decisions in the exercise of prosecutorial discretion."  The data from the study "suggest that there are significant disparities across counties in the ways that prosecutors exercise their discretion" and the conference is designed to "examine the data and consider policy options for promoting greater consistency across counties in the implementation of capital punishment."

February 13, 2007 at 05:49 PM | Permalink


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Tracked on Feb 14, 2007 1:43:52 AM


Doug, on the theoretical side of the issue of prosecutorial discretion in capital cases, I think Ring has given a stamp of approval to the notion that prosecutors can now offer a plea of guilty to first degree murder and a sentence of life without parole.

About ten years ago, North Carolina law was that a prosecutor could not use discretion to offer first degree and life when an ag existed. If a defendant was convicted of first degree and an ag existed, a sentencing hearing had to take place before a jury because a prosecutor couldn't , under separation of powers, decide which punishment, between two options, would be imposed for conviction of one crime. Theoretically, prosecutors can't negotiate which of two possible punishments would apply upon a conviction of a single crime. That is a job for the judicial branch or a jury exercising a statutory role in the process.

Then the legislature gave the prosecutor discretion to accept life without parole without going through a sentencing hearing, even if an ag existed. I always thought that was unconstitutional but never challenged it because it reduced to a large extent the number of capital prosecutions.

Now, in Scalia's terms in Sattazahan, "murder simpliciter" is a separate, lesser crime that "murder with one or more aggravating factors" (look at part IIIa of the majority opinion in Sattazahan) The legislature has said death is not an option with murder simpliciter. So, prosecutors now can exercise their discretion as to which CRIME to prosecute rather than which PUNISHMENT applies to one crime. Which I think is constitutional.


Posted by: bruce cunningham | Feb 13, 2007 11:46:36 PM

James Liebman proposes that the SCOTUS engage in the same kind of empirical analysis:

The Court has created an "ingenious system for sharing constitutional decisionmaking with capital sentencing juries, state appellate courts, and state legislatures. To achieve its objective, however, the Court needed to exercise residual responsibility for assuring the integrity of hundreds of local proportionality decisions while using the aggregate results of these democratic decisions to inform its own constitutional judgment.

"Forty years of exertions, however, have narrowed the Court's options. Those options, it is now clear, do not include deregulating the death penalty. Nor, however, need the Court singlehandedly justify the death penalty in all its manifestations. The Court's own fitful but pathbreaking innovations provide a serviceable way to share substantive constitutional decisionmaking authority with jurors, state appellate judges, and legislators.

"The Court's choice, therefore, is between abolition and fulfilling the partial and supervening review functions its novel system of shared responsibility requires. The Court's innovations considerably ease the difficulty of the latter option by enabling the Court to use the mini-constitutional proportionality judgments made daily by local democratic actors throughout the nation to inform its own, constitutionally crucial sense of evil versus extenuation, proportionality, and cruel and unusual punishment."

Slow Dancing With Death: The Supreme Court and Capital Punishment, 107 Colum. L. Rev. 1

Posted by: dppd | Feb 14, 2007 5:16:34 PM

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