« The state of state criminal justice legislation | Main | Revving up for Claiborne: a crack(ed) safety-valve sentence »

February 7, 2007

Expanding the (dormant) death penalty

USA Today has this article noting that "at least a half-dozen states are considering broadening the death penalty, countering a national trend toward scaling back its use."  Here's more:

Lawmakers have proposed legislation that would increase the range of crimes eligible for execution. In Texas and Tennessee, for example, legislators want to include certain child molesters who did not murder their victims...  Virginia is considering bills that would make accomplices to murder, as well as killers of judges and court witnesses, eligible for the death penalty.

Of course, serious students of the death penalty realize that proposals to expand the death penalty are all about symbolic politics, not serious policy-making.  Tennessee, for example, has executed only two murders in the last 30 years, and the constitutionality of the death penalty for child molesters is uncertain.  Nevertheless, these realities do not diminish the power of pro-death-penalty rhetoric for legislators.

UPDATE:  Crime & Consequences has this extended post stressing that different state proposals to expand the death penalty "vary widely in their merit."  I do not disagree with this statement, but I would add that at a time when Texas seems to be the only state in the Union seriously committed to carrying out death sentences, efforts in other states to expand who is eligible for the (now almost dormant) ultimate punishment is almost a perverse (and expensive) game of bait-and-switch.

February 7, 2007 at 08:47 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Expanding the (dormant) death penalty:

» More Death Penalty Debate Coverage from Sex Crimes
Both Sentencing Law Policy and Crime Consequences have posts about states seeking to apply the death penalty to non-homicide crimes, including sex crimes. From SLP:Of course, serious students of the death penalty realize that proposals to expand the de... [Read More]

Tracked on Feb 7, 2007 8:02:03 PM


Virginia's expansion seems well-justified. Virginia has the silly triggerman rule, and there's a proposal to change that.

I think also that your sneering about politicians engaging in pro-DP rhetoric misses an essential point, namely that the reason politicians want to expand the death penalty is that the death penalty is politically popular. Of course, this raises another point--the propriety of judges interfering with this constitutional punishment. It is common knowledge that the strictures of AEDPA are routinely blown off by federal judges. And these lethal injection delays are simply ridiculous--there is zero doubt that, if done correctly, lethal injections are not painful. Of course, that salient fact does not stop certain federal judges from concluding that the constitution requires a certain wattage of light bulb. Moreover, the standards seem to have changed as well. There has never been a requirement that states eliminate all risk of botching executions--now, as a practical matter, judges are forcing states to work to eliminate such risks. This is an affront to the American people's right of self-governance.

Posted by: federalist | Feb 7, 2007 10:02:21 AM

I'm thinking you should rename your blog deathpenalty.blogspot.com

Posted by: Brian | Feb 7, 2007 10:22:20 AM

"Of course, serious students of the death penalty realize that proposals to expand the death penalty are all about symbolic politics, not serious policy-making."

Quite the contrary, serious students evaluate each proposal on its individual merits, rather than issuing blanket condemnations or approvals. Proposals to expand the death penalty to nonfatal crimes are indeed ill-advised. However, as federalist notes, the Virginia "triggerman" rule punishing the puppet more severely than the puppeteer is wrong, and its repeal is long overdue.

I'll have more on this later today at C&C, time permitting.

Posted by: Kent Scheidegger | Feb 7, 2007 11:33:21 AM

Quite frankly, if I was a politician, I would troll death penalty rhetoric whatever what I thought my constituency was going. But, because I am a moral person, I would frame the questions in ways that would effectuate my own personal preference. This is the way politics is played.

I like that snappy rhetoric of the “American people's right of self-governance.” I would use it all the time, and I know that I would get my way. After all, the “American people” do little more than recite slogans. Some of them complain about judicial decisions, but few, if any have any interest in reading them. But, if people think that the there are too many restrictions on the death penalty, a constitutional amendment abrogating the 8th amendment could be adopted. Nobody has proposed this. Instead, it is considered far more important to ban gay marriage then to even attempt to allow states and the “people” with the “right of self-governance” to slowly cook or poison people, which many consider to be a necessary and vital part of our system of criminal justice.

So, for example, since I am generally opposed to the death penalty, I would propose blatantly unconstitutional ideas. Indeed, I would use a lot of Federalist’s rhetoric – which has no place in legal conversations – to show people that I “cared” about their views. Or, I could propose a death penalty with enough exceptions to overwhelm the rule.

As to Mr. Scheidegger’s comments, the DP probably is something that doesn’t need to be considered based on the merits of each individual proposal if one is truly and intellectually honestly against the death penalty. It is simply wrong under all circumstances, and there is no need for further inquiry.

Posted by: S.cotus | Feb 7, 2007 11:54:32 AM

Well, S.cotus, I would argue that discussions about the wattage of light bulbs or the disciplinary records of prison guards have no place in a legal opinion about the constitutionality of California's lethal injection protocol.

I do find interesting your denigration of the citizenry at large because they don't read judicial opinions, yet dare to criticize the august courts. Whatever.

Posted by: federalist | Feb 7, 2007 1:15:24 PM

The triggerman rule is also goofy because it allows two equally culpable murderers to point fingers at each other as the triggerman.

Posted by: federalist | Feb 7, 2007 1:37:12 PM

Citizens can and should criticize the courts. But their critiques are meaningless unless they actually have read such opinions.

What do you mean, you “would argue”? I assume that you “are arguing.” That said, how does the presence of these things made the legal reasoning less valid? Because, if you want to go down that road, I got a load of overly cute opinions that can be critisized for including irrelevant information – e.g. pop culture references, definitions of wacky words – that you would probably support wholeheartedly, because they result in someone being punished more.

Posted by: S.cotus | Feb 7, 2007 2:22:20 PM

I was fascinated by Jeff (Prof/CUNY Law) Kirchmeier's recent work on this topic, Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the United States, which is to be published at 34 Pepp. L. Rev. 1 available at SSRN: http://ssrn.com/abstract=959400. Jeff looks at all of the recent expansions in the last few years in easily accessible work that is exceptionally well footnoted (including the recent return in Montana of capital rape even where the victim is an adult). Thought I would pass along the cite, esp. for your students.

Posted by: karl | Feb 7, 2007 4:49:54 PM


I made a similar criticism of Prof. Berman's death-penalty postings about a year ago, and, upon only a slight bit of reflection (and subsequent careful observation), I realized how wrong I was. This is a great site on ALL sentencing issues. Prof. Berman, in fact, often writes that death-penalty issues have obscured other, possibly more important, sentencing topics. Yet he keeps writing about the death penalty when he deems appropriate because it is, after all, an important sentencing topic that is often in the news.

I hope that you take the time to see that this one death-penalty spot is surrounding by NINETEEN non-death-penalty sentencing posts. As a longtime fan, I'd say this is about average for Prof. Berman's selection of topics.

I have no doubt that Prof. Berman has a personal view on the wisdom/constitutionality/effectiveness of the death penalty. I also think that he does a good job of keeping us informed about news on the subject in a fairly unbiased way. (And federalist keeps us all apprised, generally, of a competing viewpoint anyway.) Even though Prof. Berman's personal opinion about the death penalty probably conflicts with mine, he has earned my admiration and respect for his views, as well as for the work that he puts into this site for our enjoyment and edification. I hope and expect that you will feel the same way over time. If you don't, the problem's yours, not the professor's, IMHO.


Posted by: Mark | Feb 7, 2007 6:17:03 PM

I'm a big fan of this blog and Prof Berman in general, and have been following it for well over 2 years. So, no need to make any snarky comments to defend the good professor's honor.

Posted by: Brian | Feb 8, 2007 1:43:14 PM

The statement that Texas is the only state serious about executions is completely unfair. Being prevented by courts, but fighting hard, does not mean that a state is not serious about carrying out executions. Florida, I have no doubt, will ramp up as soon as it can. Tennessee will, soon enough, execute a bunch of killers. Oklahoma will execute whoever gets through habeas. Ohio is litigating hard to overturn Judge Frost's idiotic rulings in the Cooey case. North Carolina is hamstrung by a blatantly wrong decision by a federal judge requiring a doctor, but once that's resolved, NC will get the job done.

Posted by: federalist | Feb 8, 2007 3:29:08 PM

Once again your argument loses its weight when you call decisions “idiotic” without citing, with specificity, why they are idiotic. You would need to show 1) the arguments made by the parties; 2) the arguments accepted by the judge; and 3) the authority the judge was bound b; and 4) why such arguments contravene whatever authority binds the judge. You did none of that. The rest of your post, which includes predictions about how states are going to go on a killing spree (I think this is an apt description) lacks support.

Posted by: S.cotus | Feb 8, 2007 3:58:19 PM

No, I don't S.cotus. Just read some of Frost's orders. I think that any judge that uses cases dealing with wrongful action to evaluate the "fault" of one party for electing to file a non-frivolous interlocutory appeal qualifies as an idiot.

Frost is an idiot. http://ohiodeathpenaltyinfo.typepad.com/ohio_death_penalty_inform/files/Lundgrenstay10-17.pdf

Posted by: federalist | Feb 8, 2007 7:02:44 PM

Now that you provided a single order – without actually explaining what citation makes you so angry – you now have to show how such a citation renders the judge an “idiot.”

Posted by: S.cotus | Feb 9, 2007 7:43:17 AM

I don't have to do anything. Read the order--the idiocy (and arrogance) is self-evident.

Posted by: | Feb 9, 2007 10:49:34 AM

Nothing in the law is self-evident. Without exception, I have won every legal argument (i.e. gotten my clients the result they wanted) against someone that sued that term. (Or "clearly.")

Without specifics you are just a lay person pasting URLs. Perhaps this is why you are unable to succeed in your legal arguments and less people then you would like are spending their lives in jail or death row.

You have a very high mountain to climb. First you must specify the error of law. You did not do this. I don't think you can.

Assuming that you can identify the precise error, you would have to show that the error was so manifest that only a "complete idiot" would have made it.

Posted by: S.cotus | Feb 9, 2007 11:31:17 AM

S.cotus: surely a brilliant lawyer such as yourself can read page 12 and 13 of the learned judge's order. If you read those pages you will see the judge analogizing cases in which a party was a wrongdoer to a situation where a party exercised its right to file a non-frivolous interlocutory appeal. That's some pretty bad reasoning and far below what should be expected of federal judges interfering with the state's criminal procedures. I think it qualifies Judge Frost as an idiot.

Posted by: federalist | Feb 9, 2007 2:20:19 PM

Federalist, Finally you cite to pages. Unfortunately, you did not explain why the analogy is improper. You then make the curious claim that not only is the reasoning improper, but it is obviously improper. You don’t explain this. You also assert that federal judges somehow disagree with the reasoning. You seem to indicate that non-federal judges might agree. This is confusing. Are there two “levels” of judges. Are federal judges smarter, by nature, then state judges? Strange.

Looking at the argument actually made, it seems that the judge was doing a fairly routine analysis of the burdens placed on parties by an injunction. The state, it seemed, had argued that they had an interest in killing the defendant (until he was dead), and their had an interest in killing him sooner (until he is dead) rather than later. The court considered the state’s conduct during these proceedings, and noted that they actually had caused some of the delays themselves, and concluded that there asserts that they must kill him (until he is dead) as soon as possible were somewhat disingenuous. This is a fair common grounds for granting or denying an injunction. Perhaps you can show me where such criteria has generated a summary reversal from a court of appeals. Since you have asserted that this is true, you probably have 100s of cases. Heck, you probably have a single District Court case where a judge refused to consider it.

If you don’t have any of the above authority, then you argument is somewhat weaker, as it seems that your underlying premise that this was improper grounds for granting or denying an injunction were incorrect. Therefore, it would seem that your stand that your position that the judge was an idiot would also be incorrect. You have had several opportunities to do this, and the best you can do is point to a single order.

Again, since you have declared the judge not only be wrong, but be an idiot, you bear all of the burden. Because you have not come forward with specifics earlier, I think that your argument is mainly political, and mainly meant for non-lawyers, who can be freely told anything. But, maybe I am wrong on this.

Posted by: S.cotus | Feb 9, 2007 2:38:47 PM

well, S.cotus, I just don't know what to say . . . . in an equity case, where wrongdoing is very important, a judge analogizes cases where there was clear wrongdoing to a case where there was not (insistence on legal rights is not "wrongdoing", at least generally speaking). This is quite clearly bad legal reasoning. Now maybe I am a bit harsh, but this seems pretty stupid to me.

Posted by: federalist | Feb 9, 2007 3:20:36 PM

You still have not provided specifics. The criteria for injunctive relief is the same.

Posted by: S.cotus | Feb 9, 2007 10:10:27 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB