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April 8, 2007

Challenging geographic death disparity

I find the issue of geographic disparity in the application of the death penalty to be very interesting (and generally under-examined).  Thus I was pleased and intrigued to see this new student note in the Georgetown Law Journal entitled " Challenging the Intrastate Disparities in the Application of Capital Punishment Statutes."  Here is a portion of the note's introduction:

This Note will address the issue of prosecutorial discretion in the application of the death penalty at the county level within a state.  Part I will address the existence of interstate and intrastate variations in the application of capital punishment statutes, and why it is not constitutionally problematic for one state to apply the death penalty in a different manner than another state.  Part II will assess evidence that indicates that within states, capital punishment statutes are applied with drastically different frequencies among counties.  While the focus will be on the application of the death penalty in Maryland, this Note will present evidence that the results of statistical analyses in Maryland have been replicated in several other states, thus indicating the widespread applicability of the arguments presented.  Part III examines the typical explanation for the variation in frequencies of application of the death penalty: prosecutorial discretion.  While prosecutors often are given broad discretion in applying a jurisdiction’s law, Part IV presents several arguments suggesting that this is problematic in the capital punishment context.

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April 8, 2007 at 11:35 AM | Permalink


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The argument here crashes upon one rock--namely, that it cannot be the case that jurisdictions in a case have to go to the least common denominator of the most lenient jurisdiction in the state.

And another thing: why does this cosmic fairness argument (which doesn't take into account differences in jury compositions and per murder resources) trump another, hitherto unquestioned right of the people, i.e., the right to have local prosecutors accountable to a local electorate.

Posted by: federalist | Apr 8, 2007 1:13:19 PM

As I've described in previous posts on this board, the point is not to enforce absolute equality but rather to require equal _protection_ of the law, which requires, in the death context, that prosecutors exercise their judgment (discretion) to filter out the worst of the worst to ensure proportionality (as required by Furman). Just as one trial judge might make a difference ruling than another, in his discretion, there still is an abuse of discretion standard that governs trial judges' decisions.

The student note makes the same point on pg 817.

Posted by: rothmatisseko | Apr 8, 2007 4:45:10 PM

uh, isnt that the statute's job??

Posted by: federalist | Apr 9, 2007 3:41:21 AM

It's also the jury's job. So what?

If it's solely the statute's job, then what do you have against a rule for absolute equality across counties?

Posted by: rothmatisseko | Apr 9, 2007 7:09:30 PM

No. The statute says what is and what is not death eligible. So long as the statute passes muster, the weeding out of non-death eligible cases is accomplished thereby. The constitution does not mandate a further weeding out by prosecutorial discretion--thus, this procedure is NOT required by Furman. In other words, a prosecutor can choose to seek death in every case where a constitutionally valid statute allows it, and the Constitution is satisfied, even if there are more lenient prosecutors in other part of the state.

What I have against a rule of absolute equality against counties is that it is not a serious proposal.

First of all, since there is no practical way to force a given jurisdiction to seek death in a particular case (given resource allocation, prosecutoral autonomy, availability of plea bargains), if one jurisdiction decides to be extra lenient, then the rest of the jurisdictions must therefore follow suit, right?

Second, it effectively amends a statute. Let's say that a statutory scheme allows for death in the case of a murder of a person subject to a protective order. Say a lot of the prosecutors in a particular state are sexists and don't think that these cases are that bad, then a jurisdiction electing a feminist prosecutor might be barred from seeking death in such a case. How is that not a de facto amendment? A desuetude argument has never gotten much traction, and this is desuetude on steroids.

Third, no two cases are the same, and different people have different views about when a case is the worst of the worst. I bet you would have some people arguing that the animals who butchered Channon Christian and her boyfriend are not the "worst of the worst". Perhaps an abuse of discretion standard would solve that problem--but you asked about absolute equality.

Fourth, what do we do about the temporal limitations? Say the jurisdiction moves away from seeking death where it was often sought earlier--does this mean those guys walk? And how does one become the first guy to be subject to death when the state decides to become more intolerant of a certain kind of murder?

Fifth, what about the problem of resources? Seeking death often on a per murder basis is impractical in big cities. And wasteful.

Sixth, how do you deal with plea bargains?

Seventh, and this is actually my biggest issue. The effect of this rule would be to elevate some notion that murderers are entitled some cosmic fairness with respect to outcomes over the ability of the people in political subdivisions to choose prosecutors who will reflect their enforcement priorities. The Equal Protection Clause does not constitutionalize the whine that "It's not fair". Perhaps it's not fair to Washington killers that a serial killer didn't get death, but so what? Life isn't fair, and when you kill someone, it's hard to argue that you somehow deserve some sort of cosmic fairness with respect to all killers, especially when your argument would upset the right of law-abiding citizens to elect officials who will carry out their will.

You may not like the death penalty--that's fine. But this argument is disingenuous. Just admit that the lives of killers are more important to you than local democracy is.

Posted by: federalist | Apr 9, 2007 8:15:56 PM

federalist, there's no need for ad hominem attacks or charges of misrepresentation. It's argument, take it or leave it.

"The constitution does not mandate a further weeding out by prosecutorial discretion--thus, this procedure is NOT required by Furman."

Prosecutorial discretion was one reason given by the Supreme Court for validating capital punishment. If it's broken Furman might be violated. But in any case this is the question that is open right now. Your stating your conclusory opinion is not persuasive.

My argument in the previous post addresses your first "six" points. As to your "seventh" point: You say, "Perhaps it's not fair to Washington killers that a serial killer didn't get death, but so what?" So...that's unconstitutional under Furman. Whether you think it important that executions are arbitrary is beside the point.

Posted by: rothmatisseko | Apr 9, 2007 9:09:03 PM

Well, Rothmat, you're argument boils down to:

(Stomp foot here). "My prosecutor was a meanie. It's not fair. This other murderer got a break 'cause he committed his crime in another county."

Waaaaaaaaaaaaaaaaaaaaaaaaaaaaah. Cry me a river.

Posted by: federalist | Apr 10, 2007 12:41:34 AM

No, my argument boils down to: "This over-zealous prosecutor didn't exercise his discretion." Phoenix, Maricopa County, AZ, serves as a good example, where the statute apparently hasn't served to limit prosecutions as the lege intended. Atlanta comes to mind as well.

The fact is that Furman and Gregg are the law, and require proportionality. I argue that proportionality requires that prosecutors exercise the discretion that is supposed to reduce arbitrariness. You've not refuted that in any meaningful way. Mockery doesn't count.

Posted by: rothmatisseko | Apr 10, 2007 7:46:03 PM

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