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April 10, 2008

Why is the Senate wasting time with a capital counsel hearing?

As detailed here, a Senate Judiciary Subcommittee held a hearing earlier this week on "The Adequacy of Representation in Capital Cases." Senator Russ Feingold (D-WI) presided over the hearing, and here is the start of his statement at the start of the hearing:

As a result of the litigation before the Supreme Court challenging the constitutionality of lethal injection as a method of execution, there is currently a de facto moratorium on executions in this country. This presents us with an opportunity while executions are paused to take stock of one of the most serious problems still facing many state capital punishment systems: the quality of representation for capital defendants. That is the purpose of this hearing.

No disrespect meant, but why is the Senate wasting time, money and energy "taking stock" on the quality of representation for capital defendants?  Anyone and everyone who honestly assesses the operation of state capital punishment systems should acknowledge that (1) in some states, far too little time, money and energy is spent on the initial representation of defendants charged with murder, and (2) in most cases, far too much time, money and energy is spent on the appellate representation of defendants sentenced to death for the worst murders.  Rather than bothering to "take stock" of this reality, Congress should make a more serious effort to get some of the excessive resources spent seeking to impede the executions of convicted murderers redirected toward providing more defendants charged with murder better initial representation.

I am frustrated by this hearing in part because there are so many other capital issues of which the Senate should be "taking stock" during the current national execution moratorium.  The Senate could and should be using this time to seriously explore (1) humane execution methods and/or (2) whether murder rates have risen or fallen during the moratoirum period, and/or (3) the true economic costs of capital appeals in federal courts, and/or (4) whether greater use of the federal death penalty in recent years has improved capital justice throughout the nation, and/or (5) what's taking the Supreme Court so long to decide Baze.  These are all truly unclear issues that could really benefit from serious congressional attention.

April 10, 2008 at 07:41 PM | Permalink


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While I oppose the death penalty, to be fair, I'm not sure most criminals are aware that there is currently a de facto moratorium on the death penalty so they could take that factor into consideration when deciding whether or not to commit a capital crime. Plus, any criminals who were worldly enough to be aware of that fact would probably be wordly enough to be skeptical of the proposition that the SCOTUS will hold lethal injection (at least with the current 3-drug protocol) unconstitutional. Even if the SCOTUS did hold the current 3-drug cocktail unconstitutional, there are unquestionably methods of execution that do not have the risks raised in the current litigation over the 3-drug cocktail (i.e. an opioid overdose).

So, I would not expect murder rates to change at all due to the current "de facto moratorium" on lethal injection executions.

Posted by: bruce | Apr 10, 2008 9:36:08 PM

I'm still shocked that Mr. Berman, given all his great work on sentencing issues, still supports capital punishment. It's inhumane, outmoded, suffocatingly expensive, inconsistently applied, and well, frankly, a true embarassment for this country.

Posted by: randall | Apr 11, 2008 2:48:16 AM

Randall, But all and all it doesn't have the much of an impact on criminal justice issues one way or the other. On a daily basis people are being sentenced to lengthy terms of imprisonment which have a far greater impact on our society than the DP.

Or maybe the professor just wants to be a judge and feels that the next congress will have some sort of ideological test.

Posted by: S.cotus | Apr 11, 2008 8:34:35 AM

What exactly do you think Congress could do about the fact that it's taking the Court a long time to decide Baze, and how would they even begin to inquire about the reasons for that? Somehow I doubt the Justices would respond to an invitation to discuss their deliberations with a Congressional subcommittee.

Posted by: anon | Apr 11, 2008 10:47:41 AM

Randall, it's not about support for or against the death penalty. It's about resource allocation. At any given time, there are about 3500 people sitting in prison who have been sentenced to death, and 2,000,000 sitting in prison for other reasons.

Those 3500 people have a ridiculous amount of procedural rights and have been found guilty beyond a reasonable doubt of the worst crimes out there. There may be a few innocents, but most of the dp defense bar is out to make sure that these worst of the worst die in prison instead of by lethal injection.

On the other hand, of the 2,000,000 people in prison, a lot more of them have the potential to reenter society as productive citizens, a lot more of them are facing what one might consider unjust sentences. Putting more resources into making sentencing fairer for those people has the potential to do a lot more good for a lot more people... and for people who probably deserve it more.

On the other hand, if all you care about is emotion and symbolism, keep complaining about the death penalty, and keep supporting the people who put up roadblocks to it. Perhaps the next president will ask Congress to set aside $ 1B/year for the "Supreme Court of Death," which will review all dp-related cert petitions that the Supreme Court denies and which will be staffed by highly-paid elite lawyers. Call it the "Procedural Justice Act of 2009."

Posted by: | Apr 11, 2008 10:57:44 AM

Doug, what in the world are you complaining about???

I cannot seriously believe that you think Congress should appropriately spend its time considering the length of time that the Supreme Court is spending to decide a case. Further, this is *not* an usually long period of time. The difficult cases almost always go until the spring -- for example, *Carhart II* (partial birth abortion) was argued in November 8 last year and it didn't come out until May 21 (http://www.supremecourtus.gov/docket/05-380.htm); *Baze* was only argued in January. Get a grip.

Further, your criticism of this hearing is befuddling.

You charge that "Anyone and everyone who honestly assesses the operation of state capital punishment systems should acknowledge that (1) in some states, far too little time, money and energy is spent on the initial representation of defendants charged with murder" (emphasis in original). Ok, so why wouldn't precisely this topic be included in the stated purpose of the hearing: "the quality of representation for capital defendants"

Why do you believe that phrasing does not include looking at the initial representation of defendants charged with murder? I find your outrage very difficult to comprehend. Until the Louisiana case is decided, all capital defendants in this country *are* those accused of murder, and I don't understand the committee to be limiting its review only to "later" stages of representation as opposed to "initial" work. Further, I don't even see any reason to believe the hearing will ignore the representation of defendants charged with murder generally. Maybe I'm missing something, but your outrage seems misplaced.

Posted by: Reader | Apr 11, 2008 12:43:11 PM

Oops, minor clarification: Carhart was decided April 18, per my link above (judgement issued on May 21).

But the point stands. Here are some other comparisons:

Ledbetter (big employment discrimination case):
Argued: Nov 29, 2006
Decided: May 29, 2007

Mass v EPA (http://www.supremecourtus.gov/docket/05-1120.htm)
Argued: Nov 29, 2006
Decided: April 2, 2007

KSR v Teleflex (http://www.supremecourtus.gov/docket/04-1350.htm)
Argued: Nov 28, 2006
Decided: April 30, 2007

Baze was only argued on Jan. 7, 2008.

Yes, *Baze* involves a serious issue of, literally, life & death, but KSR materially affected hundreds of thousands of patents & businesses, and Mass v EPA could have an effect on the health of the planet. They took far longer than Baze has taken so far.

Posted by: Reader | Apr 11, 2008 12:51:43 PM

Far too much time is spent obsessing about capital representation and what it requires. Far too many funds are spent on post-conviction representation. While the scarce resources and public attention available to criminal defense advocacy as a whole are directed at these areas, representation in the trenches suffers. Defense attorneys would do better spending less time and money seeking attention for their particular subset of interests (as well as less time maligning fellow practitioners), and more time developing a comprehensive strategy aimed at sentencing reform and education.

Posted by: | Apr 13, 2008 11:40:00 AM

Professor Berman,

how can an execution be humane??


Posted by: Joachim | Apr 14, 2008 6:37:53 AM

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