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March 2, 2007

Live summary blogging from Missouri DP conference

As noted here and here, I am participating today 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."  (This webpage provides more details including the schedule and participant list). I am due to speak on the last panel, and I am greatly enjoying all that is coming before.  Here's a quick summary of what I have seen (and thought) through today:

Overview:  The conference has assembled an amazing group of folks (including lots of important attendees) to discuss and examine an amazing academic study concerning the operation of prosecutorial discretion in intentional homicide cases over a five-year period in Missouri.  I view both the study and the conference to be extraordinarily important for the ways in which it is framing and examining the exercise of prosecutorial discretion in intentional homicide cases in a capital jurisdiction.

Panel 1.  Missouri death penalty study: Major findings and recommendations:  This panel had the study authors discussing the methodology, findings, and recommendation of the ground-breaking study mentioned above.  There are far too many amazing pieces of the study to summarize, but here are the official highlights:

Preliminary analysis indicates that approximately 850 to 900 of [1044 homicide] cases were death-eligible under the statute [but] prosecutors charged death in only 134 cases.  Due to plea bargaining, juries were asked to choose between life and death in only 44 cases. Thus, statutory restrictions and jury deliberations explain a fairly small portion of the decisions affecting life and death. Local prosecutors made the majority of those decisions in the exercise of prosecutorial discretion. The data suggest that there are significant disparities across counties in the ways that prosecutors exercise their discretion

Panel 2.  Critical evaluation of the Missouri death penalty studyThis panel had four diverse law professors expressing various opinions about the methodology, findings, and recommendation of the study.  All comments were quite insightful and thought-provoking; they reinforced my view that an the array of normative (and debatable) judgments are implicit in both the study's structure and recommendations.  The comments also highlighted how many different "moving parts" there are in any potential capital case, and gave me lots of new thoughts about the possible ways to seek to regulate prosecutorial discretion.   

Panel 3. Prosecutors discuss charging practices: This panel has three diverse county prosecutors  expressing various opinions about the findings and recommendation of the study.  This panel began with one prosecutor doing an amazing job cross-examining the study authors to raise questions about their authors' normative commitments of their ability to really understand all the variables that impact of capital prosecutorial discretion.  The other prosecutors in their comments have been stressing not only how many different "moving parts" there are in any potential capital case, but also how dynamic these cases are from the time they get a homicide case from investigators to the time the case goes to trial (or is pled out).   

March 2, 2007 at 03:05 PM | Permalink


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Prof. Berman at SLP is live-blogging from (and participating in) a conference entitled Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri. This is of particular interest to me (and should be to other nutmeggers), beca... [Read More]

Tracked on Mar 2, 2007 6:01:44 PM


Panel 1's conclusion is akin to the conclusion that "water is wet". You have local prosecutors, accountable to the people who elected them, making decisions about when to seek the death penalty. Is there any wonder that a prosecutor, elected by St. Louis City may use a different calculus in seeking death than a prosecutor elected by a more conservative district. This clarion call for cross-jurisdictional fairness in seeking death is sheer nonsense.

First, since when does some murderer's right to "cosmic fairness" in the application of the death penalty trump the right of the people to choose prosecutors with various degrees of enthusiasm for the death penalty. In addition, since when have we determined that a killer has a claim to lenience afforded to another killer?

Second, the unmistakable effect of any effort to create cosmic fairness across jurisdictions will simply devolve to the lowest common denominator. If one jurisdiction decides never or rarely to seek death, then, short of actually forcing the jurisdiction to seek death (which is unworkable), no death sentence will be "cosmicly fair".

Third, the decision to seek death is not the only decision that influences the outcome, namely, the decision of juries. There is no way to deal with the disparity of results here. So why is there such a concern over the results of the fact that different prosecutors, accountable to different electorates, will exercise discretion differently.

This cross-jurisdictional fairness argument is bogus. That supposedly neutral bodies propose its implementation, i.e., the ABA, call into question their neutrality. In my view, any recommendation of an ABA panel that contains this cross-jurisdictional fairness requirement should be unceremoniously tossed in the garbage can.

Posted by: federalist | Mar 2, 2007 4:53:13 PM

What some may call "cosmic fairness," reasonable people would call "equal protection under the law" designed to prevent against "arbitrary and capricious" executions.

Both Justices Stevens and White rejected this comic argument in Furman, Zant, etc. (even though they came to different solutions).

Posted by: rothmatisseko | Mar 2, 2007 6:52:15 PM

"The data suggest that there are significant disparities across counties in the ways that prosecutors exercise their discretion."

When the Supreme Court mandated that the death penalty be discretionary rather than mandatory, it effectively decided that it would be applied differently in different jurisdictions. Whether that discretion is applied by the prosecutors or the juries, it isn't going to be the same in the central city as it is in the rural areas. Note also that an assessment of whether juries in the area would impose the death penalty in a particular case is a completely legitimate factor in the prosecutor's decision on whether to seek it, so the two variables are not independent.

"Geographic disparity" is a bogus issue. This is local democracy and jury of the vicinage working as designed.

Posted by: Kent Scheidegger | Mar 2, 2007 7:17:25 PM

That's right Rothmatisseko, reasonable people think that the EPC applies to prosecutoral decisions across jurisdictions. The bottom line is that since the capital punishment process has so many decisionmakers in it, it is always going to have arbitrariness to it. So, why don't you simply admit that these types of arguments are designed not to make the death penalty more fair, but rather designed to destroy it.

But your position on the EPC begs one question, if EPC mandates a fairness that is simply unworkable (namely geographic equality), then it would be curious indeed that a Constitution which clearly permits capital punishment would have within it a provision that, sub silentio, makes it impossible to carry out.

It's amazing to me how many people want to subvert democracy for the sake of killers.

Posted by: federalist | Mar 2, 2007 7:35:19 PM

federalist, the point is that the death penalty is clearly _not_ constitutional if it doesn't live up to the Bill of Rights, including those amendments passed a century after the text you allude to (the taking of life provision in Am. 5, I presume).

Posted by: rothmatisseko | Mar 2, 2007 7:57:33 PM

Kent, under/overinclusivness issues aren't that simple. Discretion needs to be _guided_ in a way to make it constitutional, if the Gregg experiment is to be allowed to go on.

As I mentioned before, just because Justice White lost on mandatory sentences doesn't mean we give up on trying to protect against arbitrary state killing.

Posted by: rothmatisseko | Mar 2, 2007 8:06:27 PM

First of all, Rothmatisseko, discretion with respect to death sentences by juries is guided, so I presume you're talking about the prosecutorial decision to seek death. Well, what is to be done? If a statute identifies the scope of murders that are death eligible, I guess it's theoretically possible to have a capital sentencing committee which decides when a death sentence is to be sought. But from a practical standpoint, how could such a system be carried out? You cannot force jurisdictions to seek death when they don't want to, and so, if your fairness argument is taken to its logical conclusion, if one jurisdiction decides it doesn't want to do capital punishment, then nowhere in the state can capital punishment be done.

But let's look at this even further. Why would we stop at capital punishment? In some jurisdictions, prosecutors are a lot less likely to cut a deal than others or take certain crimes more seriously than others. Do defendants have a right to demand equality of treatment across jurisdictions? And if not, why only in the capital punishment sphere? And really, what is wrong, from an equal protection standpoint from one prosecutor saying, "I am going to seek death whenever I can prove a murder falls within the statute." That prosecutor is simply enforcing the law. And does the Constitution really provide that when facing the death penalty, a defendant is entitled to geographic fairness across counties?

Moreoever, how do you equalize jury verdicts across jurisdictions? You simply cannot. So why is prosecutorial discretion not ok, but the permutations of jury outcomes ok?

Posted by: federalist | Mar 2, 2007 8:52:51 PM

I haven't read the MO arguments; these arejust my immediate thoughts.

"Moreoever, how do you equalize jury verdicts across jurisdictions? You simply cannot."

That question is bigger than any answer I can provide here. The SCOTUS has at times tried to increase proportionality and thus reduce unreliable sentences and arbitrariness through delegated constitutional duty (juries' weighing aggravation and mitigation, state supreme courts doing a proportionality review,etc.). If this can't be done, arguably the death penalty is unconstitutional, as you say.

We try to equalize jury verdicts in the tort context all the time. I believe that's based on the Fourteenth Amendment, no cruel and unusual clause necessary.

"And really, what is wrong, from an equal protection standpoint from one prosecutor saying, 'I am going to seek death whenever I can prove a murder falls within the statute.'"

This would be an abdication of a constitutional duty to exercise discretion, which I thought you had agreed is necessary under the Fourteenth Amendment's protection(s) against arbitrary prosecution. I add that an exercise of discretion is necessary to reduce arbitrariness and increase reliability in the DP context under the Eighth Amendment. Also, this is arguably a forbidden mandatory death sentence.

I think you're implying that this theory is inconsistent with democracy. But even a statute that's facially constitutional under Proffitt, Jurek, etc., can't determine before the fact whether a specific crime and defendant deserves execution (which requires a higher degree of reliability than other punishments). Thus the availability of as-applied statutory challenges, Lockett claims, etc.

In any case arbitrary prosecutions aren't consistent with democracy.

"Do defendants have a right to demand equality of treatment across jurisdictions? And if not, why only in the capital punishment sphere?"

I thought you had agreed to this. I think this is a central question and one that I can't answer without knowing more what you mean.

A right to equal _protection_ under the law is required, and arguably this requires a right to demand meaningful exercise of the duty to exercise discretion to avert unreliable death sentences under Eighth Amendment jurisprudence.

I think Justice O'Connor's view that "justice means a just process" is consistent here, by the way.

"Well, what is to be done?

A meaningful exercise of prosecutorial discretion is necessary.

"[F]rom a practical standpoint, how could such a system be carried out?

I was arguing the right, not the remedy, and I don't have the expertise to say, really, not having been a prosecutor. That said, possibly requiring reasons to the court when charging? Reviewable on appeal? Maybe interlocutory? The appellate courts have already been reviewing sentencing findings. Maybe categorical rules, such as if a shooter cops a deal, obviously it's disproportionate, all other things being equal, to execute the getaway driver.

Examinations of discretion of the sort going on in in MO are a good start in the direction of identifying the problem (that is, the extent of disproportionality caused by abuses of or even variances between exercises of prosecutorial discretion). At the SCOTUS would be better.

"[I]f your fairness argument is taken to its logical conclusion, if one jurisdiction decides it doesn't want to do capital punishment, then nowhere in the state can capital punishment be done."

If prosecutors actually exercise discretion and avoid unreliable executions this shouldn't be a problem (that is, seek death against the "worst of the worst"). If that's not possible the question becomes how much unreliability we're willing to tolerate/ignore.

Posted by: | Mar 3, 2007 5:25:52 PM

The fact that only one in six death penalty eligible cases is prosecuted as such, strongly suggests that there are hidden variables that really make a case death penalty eligible which aren't articulated in the statute.

The classic cases that make the papers are cases where one of these unwritten rules is broken. It's legal, but it goes against custom and prevailing state prosecutorial norms. You get situations like Maricopa County.

The reasoned response should be the reflect as many as possible of the hidden variable in the formal death penalty statute, so that when a major change in how the death penalty should be applied is made, it is made collectively and through a public process by elected legislators for the state as a whole, not privately by a single prosecutor.

The same thing happens silently, at the other end of prosecutorial and judicial discretion. The vast majority of misdemeanor cases plea out with sentences that are often 1-2% of the possible sentence. Yet, massive discretion remains on the books for offenses that often don't warrant such discretion.

For example, in Colorado, a man got thirty days for a bar fight. This was a pretty tough sentence on its own. But, the maximum sentence was two years, which made it a deportable offense. For crimes that actually fit the consensus definition of two year assault that might make sense. But, nobody intended to make a bar fight that produces a month in jail sentence a deportable offense.

In Aurora, Colorado it is actualy common to prosecute car thieves for municipal ordinance violations, for which they generally receive the maximum 90 days in jail, because it usually results in a longer sentence than those prosecuted as felons, who in theory face several years in prison.

Far too often, the legislature passes the buck by authorizing sentences far in excess of what is the norm in practice. Indeed, this practice on the part of Congress is what created the sentencing guidelines mess in the first place. If judges routinely handed out maximum statutory sentences for federal offenses, the system would grind to a halt and the federal prison system would balloon and the laws would be promptly changed.

Posted by: ohwilleke | Mar 5, 2007 3:53:30 PM

A local prosecutor has the right to seek death in every case where he or she has a reasonable belief that the murder fell within the death penalty statute. This is self-evident, as the disposition of one murder does not (usually anyway) impact on how another one is prosecuted. That this "breaks the bank" just goes to show how the US Supreme Court, with its capital punishment "jurisprudence", has gone too far. The Constitution gives us the right, as a people, to impose capital punishment--that, from a practical standpoint, the people are hamstrung by costs in exercising said right, indicts not the decision to seek death so often, but the Supreme Court's code of death procedure, much of which, mysteriously, is lodged in an Amendment which regulates the infliction of punishments, rather than the procedures under which they are imposed.

The Supreme Court cannot even create a coherent body of death penalty law, a task which should be pretty simple. One wonders how they think they ought to be sticking their noses in warfighting, something infinitely more complicated and where the stakes, i.e., our national survival, are infinitely higher. One wonders how a person who thinks that a juvenile killer's right to be all that he can be (of course, within the confines of a prison) trumps the state's right to execute him for murder should have any say-so about how we prosecute a war. That he does is a sad commentary on the institution that the Supreme Court has become--an arrogant busybody wrapped up in its own mystique and with an inflated opinion of itself.

Posted by: federalist | Mar 5, 2007 8:22:56 PM

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