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May 26, 2008

Can Congress help move the double-condemned to the front of the execution line?

A helpful reader pointed me to this interesting local story from the Washington Post, headlined "Two Death Sentences In '88 Fairfax Killings."  Here are snippets:

A Fairfax County judge yesterday handed Alfredo R. Prieto two death sentences in the slayings of a young couple 20 years ago, saying he could not fathom "the desperation, horror and sheer terror" Prieto inflicted on them in a field near Reston. "On the night you executed them," Fairfax Circuit Court Judge Randy I. Bellows told Prieto, "you turned the final moments of their life into what could be described as a living hell."

Prieto, 42, was convicted in February of the rape and murder of Rachael A. Raver and the murder of Warren H. Fulton III, both 22, in December 1988....  Prieto is on death row in California for the 1990 rape and killing of 15-year-old Yvette Woodruff in Ontario, Calif. As a result of his incarceration there, his DNA was entered into a nationwide DNA data bank.  In 2005, that data bank provided a hit out of the blue on the DNA left at the scene of Raver's and Fulton's slayings near Hunter Mill Road on Dec. 4, 1988. Prieto is suspected in two other slayings in Arlington and Prince William counties.

Former Fairfax commonwealth's attorney Robert F. Horan Jr., who retired in the fall but stayed with the Fairfax case, sought Prieto's extradition to Virginia, despite the California death sentence, because Prieto's appeals were moving slowly and in 2005 were expected to take 10 more years.  Horan obtained two murder indictments against Prieto in November 2005, and California agreed to send him to Virginia in April 2006....

In addition, prosecutors in Arlington obtained a murder indictment against him, saying he was linked by DNA to a May 1988 rape-murder.  The details of the slaying of Veronica "Tina" Jefferson, 24, were used in the sentencing phase of the Fairfax case to help persuade the jury to impose the death sentence. Arlington prosecutors said yesterday that they still are planning to try Prieto in September.

Prince William prosecutors said Prieto is a suspect in the September 1989 slaying of Manuel F. Sermeno, whose body was found in a burning car near Interstate 95.  But with three death sentences imposed, prosecutors there are unlikely to try Prieto....

Prosecuting Prieto in Fairfax cost taxpayers about $700,000, court records show....  State law required Bellows to set an execution date, which he did for Oct. 3.  But he immediately suspended that date pending post-trial motions, which will be followed by appeals to the Virginia Supreme Court and then to the federal courts. Horan said the process could be over in five years. 

Two decades after Prieto's horrible murders and millions of tax dollars later, apparently it is still going to take another five years and a lot more tax-payer dollars before Prieto will be facing a serious execution date. 

Many concerns and ideas might be taken away from this sad story, but I am wondering whether Congress could somehow devise a way to ensure that defendants like Prieto condemned to death by two states are subject to some form of expedited appeals process.   Though I am not sure Congress could readily devise an efficient way to "consolidate and expedite" Prieto's various federal appeals, stories like this confirm my instinct (as set for in some prior posts set out below) that Congress should be mush more actively involved in helping states administer the death penalty.

Some related posts:

May 26, 2008 at 04:29 PM | Permalink


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Prieto should move straight to the head of the line and be executed as soon as possible.

Posted by: | May 26, 2008 6:02:53 PM

I'm surprised at what you're advocating here. Are you in favor of expediting executions?

This also seems to raise federalism issues.

Posted by: AdrianLesher | May 26, 2008 6:15:59 PM

You want Congress to spend time and energy to pass legislation that will affect, what, 5 criminal defendants? Every individual wrong in the system does not need a legislative fix. Congress is likely to make things worse by acting.

Posted by: | May 26, 2008 6:28:34 PM

AdrianLesher: Because I fear that any virtues of capital punishment are undermined by an appellate process that takes 20+ years, I suppose I am in favor of expediting executions.

More to the point of this post, I think that if/when two separate states have duly imposed a death sentence on one murderers, there is a unique reason/benefit of an expedited appellate review process.

I share the concern of 6:28:34 PM regarding Congress possibly making things worse, but maybe I have not given up all hope on that body.

Posted by: Doug B. | May 26, 2008 9:21:45 PM

Doug, in the last 20 years, name 2 positive sentencing developments that have come from Congress. Still not given up all hope for Congress?

Posted by: 6:28 | May 26, 2008 9:50:56 PM

Is anyone here even remotely concerned that Prosecutors will use such a tool as leverage to make people plead guilty to crimes they may or may not be guilty to? Prosecute one crime, threaten to convict the person of another crime with the promise of a fast tracked execution, before long there wont be any 'unsolved murders' in this country. But with the Utopian Criminal Justice System we have here in the U.S. with prosecutors only concerned about justice i might be a bit paranoid.

Posted by: Mark | May 26, 2008 10:27:56 PM

Maybe the death penalty should be reserved for serial killers. On the other hand, murderers have the lowest recidivism rate of any offender. This was a tough story to read and is one of cases that is so exceptional it's difficult to argue against. There is one plot hole though: had he been put to death right away in California, it would have been before the state started collecting DNA. So no solving of the other murders. And was it really necessary to get another death penalty conviction? Had to be some politics there.

Maybe the Feds plan on stepping deeper in state crimes and that is the reason for the expansion of DNA collection. Maybe the plan is a serial killer law for anyone who kills in different states. How else is the government going to get everyone to surrender their DNA? Maybe that is the real reason for collecting DNA from newborns. Or part of the reason.

All of this is over my head.

Posted by: George | May 27, 2008 1:02:30 AM

One way to expedite executions is to terminate federal supervision of state criminal proceedings, (i.e. terminate federal habeas) a state of affairs which would shock the Framers of the Constitution if they ever heard of it.

Since I don't expect that to happen, I think there are still some things that can be done to at least lessen the cost of executions. One way of doing so is greater cooperation amongst the states. Instead of having 37 states, each maintain its own execution protocol, perhaps they can all be consolidated in one state. Since the Supreme Court has, effectively speaking, given the state of Kentucky its seal of approval, I recommend that all other death penalty states come to an agreement with Kentucky to have Kentucky conduct their executions. That way, the other 36 states can abolish their death chambers. In return, Kentucky will receive an execution fee from the other states for conducting their executions. Aside from the cost savings in consolidating executions in one state, another benefit is that it will moot any complaints about lethal injection procedures outside Kentucky.

Like Professor Berman, I welcome additional input about ways to save time and money for the execution process.

Posted by: realist | May 27, 2008 1:06:35 AM

Doug -

It seems that, like Hillary Clinton, (see Washington Post opinion Eugene Robinson - Did She Really Say That) you are in danger of losing your soul. If this represents a tipping point in your thinking, then perhaps you need a really long holiday. Sorry, but this is dangerous nonsense.

Posted by: peter | May 27, 2008 2:07:44 AM

peter, I am more worried about the soul of anyone more concerned about the layers of legal appeals for murderers double condemned for committing two horrible murders than concerned about all the people impacted by the murders.

What strikes me as dangerous is the tendency of some folks to put life above all other human values without any serious effort to understand the view of others.

Posted by: Doug B. | May 27, 2008 8:11:11 AM

Prieto is a walking argument for the death penalty. At this point we have no idea how many innocent people were done in by this man because he was not promptly caught and executed. A half dozen would not be an unreasonable guess.

What a segment of the abolitionist community fails to understand is that there really are people like Prieto -- people without anything resembling a normal human conscience or empathy. They kill because they can physically overpower their victims and because they enjoy it. There is no measure of security, in prison or elsewhere, that is both consistent with the Eighth Amendment and reliably capable of stopping them. Their whole lives are about killing.

Prieto is a human being, and he has the rights that a civilized society should offer its citizens. His victims were also human beings, with rights no less to be honored but that, in part because of moral equivocation, this society utterly failed to protect. Prieto's next victim will fall in the same category. It is time to bring this to an end.

Like Doug and others, I have doubts that Congressional intervention will be helpful, and there are federalism problems for sure. Maybe it would help to have a specific draft statute to look at.

Just one or two other thoughts: To Adrian Lesher, I think it's straining at a gnat to characterize an attempt to carry out a death sentence sometime before 20 years have elapsed as an attempt to "expedite" executions. Whatever happens after 20 years is not something that's been "expedited."

To Peter: It is out of place to accuse those on the other side of the death penalty question of being in danger of "losing their souls." You have no monopoly on virtue. When more than two-thirds of Americans support the death penalty, and when it has been not merely supported but used by Presidents from Abraham Lincoln to FDR to Bill Clinton, the appropriate attitude from abolitionists is not belligerence but modesty. Modesty doesn't meaning giving up. It means moderating your tone. This is true across the board, but it's especially true when talking with Prof. Berman, who while in my view is decidely on the liberal side of most sentencing matters, is basically a fair-minded person who tries to be balanced. Maybe you should try too.

The last observation is this: We have heard that DNA testing is undermining support for the death penalty. As an empirical matter, that is simply false; over the last few years, as DNA testing has become more frequent, support for capital punishment has gone up, not down. But even if it were true in the short run, it isn't true in the long run. There will be more and more cases like this one, in which DNA does not exonerate, but inculpates. And overall, the availability of DNA testing will, over time, tend to increase public confidence that we have the right guy.

Posted by: Bill Otis | May 27, 2008 8:33:47 AM


Your attempts to smear anyone who disagrees with you is beneath you; buck up and don't resort to ad hominem.

DoCs make supermax wings of state prisons for a reason, the reason being men like Prieto. Capital punishment drains scarce resources AWAY from trial level prosecutions and feeds the best and brightest on both sides of the bar in to a few narrow cases. Had we not had capital punishment, an argument could well be made, Prieto might have been caught sooner as those resources diverted to capital litigation could have been spent on tracking people like him down.

- karl

Posted by: karl | May 27, 2008 9:00:54 AM


"Your attempts to smear anyone who disagrees with you is beneath you; buck up and don't resort to ad hominem."

1. Please quote examples of my "smearing," and provide the context.

2. Peter said that Prof. Berman, on account of his suggestion that Congress might look into expediting executions for people like Prieto, was engaged in "dangerous nonsense" and was in jeopardy of "losing his soul."

Do you consider that an ad hominem attack? If not, why not? If so, where was your criticism of it?

3. "DoCs make supermax wings of state prisons for a reason, the reason being men like Prieto. Capital punishment drains scarce resources AWAY from trial level prosecutions and feeds the best and brightest on both sides of the bar in to a few narrow cases. Had we not had capital punishment, an argument could well be made, Prieto might have been caught sooner as those resources diverted to capital litigation could have been spent on tracking people like him down."

This is rank speculation. Do you have any specific facts to document it or to establish in any other way that, but for the death penalty, Prieto would have been caught earlier?

Posted by: Bill Otis | May 27, 2008 9:18:35 AM


One other question for now: Do you believe that the slightly more than two thirds of Americans who support retaining the death penalty stand to lose their souls?

Posted by: Bill Otis | May 27, 2008 9:28:59 AM

Bill -
I see I have to intercede:

My remark "in danger of losing your soul", in being borrowed from another given context, reflected a concern that comments were being made that were suggestive of a slide into fixed position on the death penalty that had previously been denied. It may be wholly intentional, but whether so or not, I of course find it regrettable. Since the professor is well aware that there is no definitive empirical evidence to support arguments for the death penalty, then his soul is indeed at stake. He would not be expected to weigh emotive reactions to murder more heavily than a concern for the rights and safeguards of individuals charged under the law. The proposed solution to a difficult case which draws such emotive reaction, endangers the opening of a floodgate which may be hard to close just for the exceptions he identifies. Here too, there is more than an element of the soul at risk.
In answer to the charge that I "put life above all other human values without any serious effort to understand the view of others" - I refute that entirely.
I might be prepared to lay down my own life for the sake of another; but I am not prepared to take the life of another when other options exist. It's a simple moral position for me. Others prefer to avoid the moral questions and rely on cost/benefit analysis to inform their view. I understand the latter entirely, but reject it as an argument in support of the death penalty.

Posted by: peter | May 27, 2008 11:08:33 AM


Thank you for your response. I'm still curious to see what Karl will say.

Personally, I do not know anyone on this blog well enough to comment on the status of their soul. The death penalty debate, like the debate about whetner to go to war, arouses strong feelings, and it is for exactly that reason that I believe debaters should be more circumspect, not less, in talking to their opponents.

Very smart people of good faith come to different conclusions on even the most important of issues. That's how life is. Just saying that one's opponent is without a soul -- simply by virtue of the fact that he has reached a differnent conclusion from the one you have reached -- stands a high chance of being erroneous, an even higher chance of being offensive, and an extremely high chance of being counter-productive.

Posted by: Bill Otis | May 27, 2008 11:52:26 AM

Wow I'm really surprised by this. And the AEDPA (.."Effective Death Penalty Act") was supposed to do the very thing Doug is advocating here. Look how that turned out.

Posted by: bruce | May 27, 2008 12:20:29 PM

whaaa??? i don't even know how to respond to this except to say that it's crazy talk. as bruce just pointed out, wasn't this the whole point of, um, AEDPA????

more concern for double murderers than those impacted by the murders??? really professor? that rings so strikingly familiar, i wonder where i've heard it before????

realist, allowing one state to perform all the executions? what nonsense are you talking about??? isn't the whole point of an execution to show that the citizens of the state where the crime was committed are condemning the individual to death? isn't that why there is the seal of the state on the death warrant??? or are all those things just meaningless symbols in an effort to legitimize, um, state executed revenge??? hmmm, i wonder.

Posted by: LW | May 27, 2008 12:45:19 PM

whaaa??? i don't even know how to respond to this except to say that it's crazy talk. as bruce just pointed out, wasn't this the whole point of, um, AEDPA????

more concern for double murderers than those impacted by the murders??? really professor? that rings so strikingly familiar, i wonder where i've heard it before????

realist, allowing one state to perform all the executions? what nonsense are you talking about??? isn't the whole point of an execution to show that the citizens of the state where the crime was committed are condemning the individual to death? isn't that why there is the seal of the state on the death warrant??? or are all those things just meaningless symbols in an effort to legitimize, um, state executed revenge??? hmmm, i wonder.

Posted by: LW | May 27, 2008 12:46:54 PM


It turned out a lot better than your May 22, 1:30:15 a.m. claim that, "As long as someone was murdered, someone has to be killed for it."

Posted by: Bill Otis | May 27, 2008 12:47:31 PM

Bill: that quote is my sarcastic take on our victim-loving society, not what I actually believe. I believe quite the opposite. If my sarcasm wasn't clear enough, I apologize. Though anyone who reads my posts on here would likely know I meant it to be a comment on how our legal system works, not on how I think the death penalty should be used.

Posted by: bruce | May 27, 2008 1:38:15 PM


My proposed system still requires the murderer to be condemned by a jury from his state. It's just that all executions will take place in one state.

Posted by: realist | May 27, 2008 2:40:33 PM

realist, if anything that would result in even longer delays between executions. As long as execution method is not being contested (and Baze put that to sleep, for the most part) why would the location matter at all?

Posted by: bruce | May 27, 2008 2:44:37 PM


1. Except that they are being contested. There's a challenge about Virginia's execution method in the 4th Circuit right now. I think there's one in California, and probably others I'm not aware of.

2. My theory is that consolidating executions in one state may save cost for them all. If you believe that's untrue, please explain.

3. Nor am I aware what possible claim a death row inmate might bring simply because his state joined a compact among the 37 states to arrange for his execution in Kentucky.

Posted by: realist | May 27, 2008 2:51:59 PM

Sure they're still being contested, but how does that make any one state immune? Those lawsuits will eventually go away. Delays in executions come down to the appellate process and some state's willingness to execute people, but not economies of scale in the actual execution process. Thus, having one central, national death row and one central, national execution chamber and one central, national execution procedure would make absolutely no difference. I think it would slow the process down by straining the appellate resources of just one state (since all appeals as to the process would be to that one central, national method of execution).

Also, isn't part of the vindictiveness and "closure" sought by victims is to know that "our police" and "our legal system" took care of the problem? Shipping murderers off to foreign states to be punished seems like it would diminish that. Not that I give a rat's ass what victims think. I simply don't think your proposal would be popular with the crown you think it would.

Posted by: bruce | May 27, 2008 3:18:57 PM


I think those law suits will go away much faster if they have nothing to sue. You can't sue California's death penalty procedure if the state does not conduct them. Consolidating executions might save some time. Appeals will still have to be filed with the states that issue the death sentences. Challenging Kentucky's lethal injection protocol can only be done at the state level, as the Supreme Court has already resolved the issue on the federal level. Compare that with the current status quo when state execution protocols can be challenged at both levels.

You speak of "foreign states" as if I'm suggesting that the executions be conducted by China. I'm not convinced that there is a strong opinion among people who want to see justice done that it must be done within a state's borders.

Posted by: realist | May 27, 2008 3:32:09 PM

But you have to bring a suit to preserve it. Whether it's 50 people throughout 50 states or 50 people in 1 state, there will be 50 lawsuits. It's not going to reduce litigation. Not to mention the lawsuits over being shipped off to some other state to be punished which will come on top of what would already exist. Your proposal would create litigation and slow down executions. Not to mention the high cost of maintaining one huge, national central death row. Severely misguided.

Many state constitutions, including Texas, require punishments be carried out within the state. There are exceptions now for paying other states to hold prisoners. But that's recent. Nonetheless, the death penalty is a very state-specific thing and all states will want to remain in charge of it. They won't want to give up on iota of control over placating crime victims. Nor will the victims want to have a foreign state placate them. I don't mean "foreign" as in China, either. I mean foreign as in "out of state" jurisdiction.

Posted by: bruce | May 27, 2008 3:46:19 PM


Law suits have to state claims. Since the Kentucky procedure has already been cleared on a federal level, there's no way to raise an 8th Amendment claim on that state's procedure on the federal level. In contrast, right now, claims are being made against the other states. Under my proposal, if other claims are to be made against Kentucky's procedure, they can only be made against the procedure of 1 state, not the procedures of the other 36. I think that maintaining one execution chamber is less expensive than maintaining 37. If my proposal can cut down costs, then it's possible that states may pass legislation to consolidate executions.

Posted by: realist | May 27, 2008 4:08:02 PM

Law suits don't have to state claims to be filed, they have to state claims to remain in court. Executions will still be postponed. But if states wanted to cut off these suits why not just adopt the measures that Kentucky uses? For the most part they are all the same. It's not like these "method is cruel and unusual" lawsuits have been around forever. Let them run their course and we'll be done with them. Moving every execution to kentucky will cause an infinitely larger amount of lawsuits to be filed. And I still contend victim, etc. will be pissed off if they have to drive across the country to attend the execution of their dearly hated defendant in order to obtain their illusive "closure."

Posted by: bruce | May 27, 2008 4:30:33 PM

You people want an expedited appeals process? Why not an expedited appeals process aimed at freeing more people from jail? I mean, if justice were really the goal, then you would certainly not object to an appeals process that would focus on taking people off death row, and say, putting them back on the street.

Why not take the claims of the defendant at face value and figure out a way to move all claims of “actual innocence” to the front of the line, and presume a jury verdict to be invalid? After all, this would speed things up.

Posted by: S.cotus | May 27, 2008 4:53:26 PM

Bruce, Although I don't think there is any caselaw on the issue, I don't belive a state can farm out its killing to another state. Moreover, even if it COULD do that, the "sending" state would still be the custodian any court hearing a challenge to the execution would have to, at a minimum, apply sending state law.

Posted by: S.cotus | May 27, 2008 4:55:15 PM

Professor Berman - your remarks relating to being more worried about the souls of those worried about appeals trivializes religion and is insulting to people who have a bona fide religious belief against the death penalty. If one has a bona fide religious belief against the death penalty, it would be impossible to believe that supporting the death penalty does not put one's soul at risk and it is likely to be considered sinful to not try to convert persons to that position since by failing to do so would be also a sin.

Obviously, such matters are very much debated in theological circles as they are in legal circles. However, there is a difference between theology and law. Now one could say that it is not proper to mix the two concepts of religion and law in a court of law, but in the political arena the concept of religions will inevitably arise because people's religions do affect their political views. It does no good for anyone to trivialize another's bona fide beliefs for or against the death penalty. Comparing what might be considered a mortal sin by a religion (killing another human being) with a question of legal procedure does serve to trivialize what is a highly controversial matter of theology, philosophy, morality, and religion does not serve to create a rational discussion.

It also is an extreme cheap shot for you to repeatedly say that persons who oppose the death penalty value life above all else. First, some religions do place the preservation of life above all else. While you may disagree with that, it hardly is a way to win friends and influence people by insulting others religions. At the same time, it is simply not true - many people who oppose the death penalty also oppose things like mandatory minimum sentences, harsh drug laws, and other issues. It is a cheap shot to claim that person who oppose the death penalty do not also support sentencing reform and do not support personal freedom.

Posted by: Zack | May 27, 2008 4:59:48 PM

S.cotus: I would tend to agree. I think there would be serious federal constitutional concerns (along with serious state constitutional concerns, though those could be more easily amended) in sending condemned prisoners out of state to be executed. And I think victims would have serious problems with doing that, too. But he's saying since all the exeuctions would be carried out by one state with that one method, all challenges to that method would be with respect to that one state's method, thus potentially less lawsuits. I don't buy it, as I've said in my previous posts.

There is no such thing as an expedited appeal process consistent with the constitution. The idea that the more serious the crime and the more serious the punishment, the less rights you should have on appeal is simply twisted and sick and incompatable with due process.

Zack: I oppose the death penatly and I don't give a rat's ass about life. I oppose it on procedural grounds, not moral grounds. If trials were fair and prosecutors not overzealous, I would have no problem with the death penalty. None whatsoever. You guarantee a perfect trial (a fair trial is a perfect trial when death is concerned) and you can execute whomever you want.

Posted by: bruce | May 27, 2008 5:19:31 PM


Neither a bona fide religious belief, nor anger, nor certitude are going to win you (or anyone else) this debate. Anyone can have those things, so they just cancel each other out.

The overwhelming majority of your fellow citizens -- educated and not, religious and not -- think you are wrong about this. On what basis can you presume that they are less fair-minded, or less prone to act in good faith, than you are?

Posted by: Bill Otis | May 27, 2008 5:49:09 PM


If law suits don't state claims, executions won't be postponed. They'll be dismissed immediately for being frivolous.

The benefit of consolidating executions is that maintaining one execution chamber is cheaper than maintaining 37. I don't believe that moving executions to Kentucky will increase the number of law suits. Please tell me how that can happen. Any legal hurdle can be circumvented by states passing legislation to allow it. States pass legislation to reform their procedures all the time. I don't think that somehow, this will be more burdensome. If you can give examples of how a state constitution may prevent an execution from taking place out of state, I'd appreciate it.

As for attendance by victims' families, perhaps the state can fly them over. My view is that since most death penalty states conduct 1-2 executions/year, sometimes less, the cost of flying over the families may be lower than the cost of maintaining the execution chamber. Of course, for states that execute a lot of people like Texas and Virginia, that may not be true. In such cases, either they can simply adopt the Kentucky procedure as you suggested or perhaps the consolidation can happen in Texas instead of Kentucky (which rarely conducts executions anyway). My proposal is about consolidation. I don't have any special preference for Kentucky other than the fact that their procedure has been endorsed by the Supreme Court. Obviously, its procedure can be exported.

As for S.cotus's remark about expediting the appeals process, that has already been done in AEDPA which imposed a 1-year limit to filing federal habeas, limited successive petitions, requires deference to state courts, among other attractive features. The only problem is that the Supreme Court failed to abide by the spirit of the law (Atkins v. Virginia and Roper v. Simmons being prime offenders). There's not much that can be done if the Supreme Court refuses to expedite the process.

Posted by: realist | May 27, 2008 5:52:24 PM

realist, the cost of the death penalty, and the deleays (two different things, mind you), are not due to economies of scale. They're due to the appellate process. Lumping all the inmates together won't make it cheaper, it will if anything make it more expensive. One large maximum security prison is much more expensive than a small maximum security wing at an existing prison. The Supermax in Florence is the most expensive prison in the country if not the world, to run and operate and staff each year.

The 1 year AEDPA statute of limitations INCREASED the number of habeas petitions being filed. instead of waiting until the claim is more ripe, or until you could afford the lawyer you wanted, you had one year to file it. So now everyone files their federal habeas by default, so as to not miss the one year deadline. People don't think about the consequences of their plans. Deference to the state courts doesn't decrease filing either, it only increases injustices.

Posted by: bruce | May 27, 2008 6:10:12 PM


Aside from the saving in operating one execution chamber instead of 37, another practical effect of consolidation is that it will eliminate 8th Amendment claims as regard to the lethal injection protocol during federal habeas. This addresses your point about the appellate process. I never suggested that all death row inmates in the country should be housed in a single prison. Only that they should be executed at a single location.

The way to evaluate the effect of AEDPA is not how many frivolous petitions are filed but rather, how many people have been executed each year since its passage. I don't doubt that lawyers can file an endless number of appeals. The purpose of AEDPA was to have federal courts reject frivolous petitions much faster. From that perspective, I think AEDPA worked until the Supreme Court began intervening. DPIC statistics show that there were 45 executions in 1996, the year the act passed. In the following year, the number jumped to 74. By 1999, the number reached 98, one of the highest ever. Unfortunately, the numbers declined as Atkins and other cases showed that the Court became more interventionist and lower courts no doubt followed the Supreme Court's lead.

Another way to look at AEDPA is how often such petitions ultimately succeed. In the late 1970s-early 1980s, more than half of the petitions succeed. Now the success rate has been cut to somewhere between 3-10%. (Studies vary on the exact number. The ones I've seen fall into that range.) Admittedly, the Court itself did some work during the 1980s but I think AEDPA can claim a large share of the credit as well.

Posted by: realist | May 27, 2008 7:46:42 PM

Like I said, 50 people in 50 different states or 50 people in one state with one protocol, and you're still going to have 50 lawsuits. Even if it would reduce the number of lawsuits, you're only talking about one specific kind - the "method of injection is cruel and unusual" - that's a very narrow issue, to be decided once per state. You're not talking about perpetual litigation.

You'll have to articulate in detail how you think the SCOTUS has interpreted the AEDPA too broadly to give defendants more rights than congress intended before I'll respond to that claim.

I do agree the AEDPA has reduced the percentage of successful habeas petitions on both state and federal (2254/2255) review. But not the overall number filed. And simply reducing the rate at which defendants can succeed does absolutely nothing to further justice.

Here's what I don't get. All you sadistic whackjobs (I mean that in the nicest way possible) who want to cut off appeals are the same people who, when presented with the numerous cases of people who have been proven innocent and released from death row after 5, 10, 20 years or more, are the same people who say "Well see, the system worked! No innocent person was executed! All is well and the death penalty remains inviolate!" But at the same time you say that person should have been executed a decade ago or more. Talk about a disconnect. You can't have it both ways. Either reduce the time for appeals (is it the time, or the amount of successive appeals beyond the first one - because that's already limited as much as the Constitution will allow) or concede that it's okay that we would have wrongly executed several dozen innocent people who were released from death row after many years/decades and several near-miss execution dates. Which is it? Pick. You can't have both a "system that works" and a system that cuts off the time for innocent people (and guilty people) to appeal their convictions, especially when new evidence is found at an unpredictable time in the future.

What makes the "reduce appeals" argument even dumber is that it is legally impossible to reduce criminal appeals below their natural level. Any law that purports to do so will form the basis of additional appeals in and of itself.

Posted by: bruce | May 27, 2008 8:08:22 PM


1: I am not sure how this doesn't qualify as a smear:

What a segment of the abolitionist community fails to understand is that there really are people like Prieto -- people without anything resembling a normal human conscience or empathy.

I'll be more than happy to discuss with you which member in a national abolitionist leadership role or member of the full-time capital defense bar that believes this, until then, it is a smear.

2: The question you fail to answer is would diverting capital prosecution resources to noncapital prosecution efforts related crime prevention & detection reduce crime? The answer is clearly yes.

3. Finally, "lose their souls?" First the 2/3rds number is highly misleading as a plurality, if not majority, of Americans favor LWOP over death. Second, while my position, that of the Catholic Church, and nearly all protestant denominations are in accord with opposing the death penalty in principle and practice in the United States, I only find contemptible those who shrilly support the death penalty for purely political gains. See, e.g., Bill Clinton & the Ricky Rector execution. I think the death penalty is bad social policy not a damnable offense and am familiar with no one in the national movement honestly believes it is a damnable offense.

Posted by: karl | May 27, 2008 8:11:13 PM

Karl, you can't really expect people to tell the truth about their motivation in supporting the death penalty;, that is, that they know the death penalty is bad policy and serves no valid purpose but they support it anyway because they feel the compelling need to bend over, loosen their spincters, and spread their ass cheeks for the benefit of victims, who deserve having the person who made them cry murdered, because, they are victims, and were made sad. Really sad. Really, really sad. And some of them say murdering the person who made them sad will give them closure so they can be happy again. Never mind the fact that no victims actually get closure from an execution - so long as victims think they will get closure (and thus abate their sadness), death penalty supporters will have their assholes lubed up and ready to be penetrated.

Nobody is going to admit having such motivation, even though it is universal amongst death penalty advocates. Frankly, I don't really care what people's motivations are for a given policy unless those motivations are based on religion. Only then do I care about motivations. Religion has no place in public policy debates. That holds true for Catholics who oppose the DP because the pope says so. I don't want to execute people based on religion, and I don't want to not execute people based on religion.

Posted by: bruce | May 27, 2008 8:41:29 PM


You have an amusing propensity to "decide" the winner of an argument in which you are a participant. Far out. But I digress.

1. The observation you quote from me was not a smear because I did not attack the character or personality of the opposition. I said that a segment of the abolitionist community failed to understand the depraved nature of a sadistic killer like Prieto. If you think that's a "smear," permit me to send you a dictionary. And if you think that a "segment of the abolitionist community" (my words) equates with "member in a national abolitionist leadership role or member of the full-time capital defense bar" (your substitute for my words), permit me to send you two dictionaries.

Of course there's more to be said about smearing. People on my side of the debate are frequently (including in an article posted just today) referrred to as "bloodthirsty." Where is your condemnation of that sort of smear, which is a pure character attack?

2. "The question you fail to answer is would diverting capital prosecution resources to noncapital prosecution efforts related crime prevention & detection reduce crime? The answer is clearly yes."

First, those who do their utmost to drive up the cost of capital prosecutions by, inter alia, filing blizzards of meritless motions, including numerous eve-of-execution motions, are poorly positioned to try to make hay from the expenses they did everything they could to balloon.

Second, you present a false dichotomy. Why does there need to be a choice between capital case resources and prevention resources? Why don't we have more of both by cutting back on preposterous government spending like this gigantic farm bill the President unsuccessfully vetoed, and devoting the money saved to assist states in BOTH capital prosecutions and prevention efforts?

3. "Finally, 'lose their souls?' First the 2/3rds number is highly misleading as a plurality, if not majority, of Americans favor LWOP over death."

Not a single part of that is true. First, the principal question about the death penalty is whether IT IS MORALLY ACCEPTABLE. You could not possibly fail to know this, for whatever your own agenda may be. So when more than 2/3 of the public says that it approves the death penalty for murder (which is Gallup's question), that is hardly "misleading." It is, to the contrary, directly on point. It also happens to be true.

The same Gallup poll (Google "Gallup death penalty") shows 48% would prefer LWOP, and 47% the death penalty. I had not previously been aware that 48% is a "majority," but, you know, whatever. If a point be made of it, though, the 48% isn't even a plurality, because the one percent difference is within the margin of error, meaning that the poll DOESN'T TELL YOU WHICH IS ACTUALLY PREFERRED.

Finally, if as you say you do not believe supporting the death penalty is a "damnable offense," why did you fail to reproach the commenter who told Prof. Berman that, by virtue of his supporting the death penalty, he was in danger of losing his soul? I thought you were against smears. Did I get that wrong?

Posted by: Bill Otis | May 27, 2008 9:14:06 PM


1.I consider the debating tactic of ad hominem debate "smearing," perhaps you don't.

2. In our criminal justice there is a limited number of resources. Any managing attorney in an office the size of the County of New York to the County of Podunk knows that. There is by necessity a trade-off for seeking death and that is diverting resources that could be used to go after other resources. And as far as "blizzards of bullshit" motions, nice "spin" but where is the proof? In what case can you cite such frivolity was sanctioned under Rule 11 or the like?

3. When polls, Gallup and others, consistently show a those who take a positions on the DP v. LWOP chose LWOP, albeit by a mere plurality, sometimes within the MoE sometimes outside of the MoE that is a clear direction. Support for the DP has eroded since the late 90s.

Posted by: karl | May 27, 2008 9:50:02 PM


It would not be productive for me to respond to questions and comments as long as so many of the questions I have posed remain unanswered. It's not a one way street.

P.S. Rule 11 sanctions apply only to civil cases. Rule 11 of the Federal Rules of CRIMINAL Procedure deals principally with the standards for taking guilty pleas, not with sanctions for frivolous motions. Nor does the absence of sanctions, even in a civil case, show that motions have even colorable merit. It shows that judges have a great deal of tolerance.

Posted by: Bill Otis | May 27, 2008 11:26:56 PM

Bill - isn't habeas a civil proceeding? And isn't that where most of these filings occur? (Oh, and I completely agree that many of these motions are utterly frivolous. But are we really going to sanction DP defense attorneys only to hear that we're coercing them into not bringing viable claims?)

Posted by: NewFedClerk | May 28, 2008 8:13:01 AM

2255 and 2254 are quasi-civil and some rules of civil procedure apply. You can file a MSJ under rule 56. But I've never seen rule 11 sanctions. There are some specific Rules Governing 2255 and 2254 Proceedings in U.S. District Courts that govern the cases.

But this all misses the point. Many claims, such as legal sufficiency and ineffective assistance of counsel are a one in a million shot, but that doesn't make them frivilous for purposes of legal ethics and summary disposition.

Posted by: bruce | May 28, 2008 10:50:47 AM


I never litigated a 2255 in district court, and I don't know the answer to your question. I was the head of the appeals division and spent almost all my time in the Fourth Circuit.

"{A}re we really going to sanction DP defense attorneys only to hear that we're coercing them into not bringing viable claims?

You nailed that one. It's the main reason there are lots of eye-rollers getting filed, but few if any sanctions. Although the system, and judges in particular, are often accused of not giving defendants a fair chance, the truth -- as I suspect you are finding out, being a new federal clerk -- is that judges bend over backwards to give defendants a fair chance, and no more so than in DP litigation.

Posted by: Bill Otis | May 28, 2008 11:16:59 AM

Prof. Berman: you mention "virtues of capital punishment" -- could you explain? Given the heated words on this thread, I add that this is not a rhetorical question. I am an opponent on moral and practical grounds, and I have yet to read a good argument on the other side. I understand "retribution" (I just don't agree), but beyond that, I can't see a "virtue."

I've heard that it makes some victims feel better; I've heard otherwise. I've heard that it is for the protection of society; but Life Without Parole does the same thing and we have the technical skill to keep a person in prison.

Do you have another identified "virtue"?

Posted by: Laura Graser | May 28, 2008 5:33:35 PM

Laura: You presume public policy decisions have to have at least one virtue to them. Appealing to the masses is the only "virtue" (if you could even call it that) that the DP has going for it.

Posted by: bruce | May 28, 2008 5:56:43 PM



Posted by: federalist | May 28, 2008 11:43:06 PM

It was Prof. Berman who spoke of the "virtue" of the death penalty, not me. And I didn't find John Stuart Mill's lecture helpful to explain why people today support the death penalty. He says in essence, "LWOP is more cruel." Well, not in the view of the person on death row who wants LWOP.

I continue to seek a measured explanation from a serious person about why the death penalty is good social policy. I know such people -- I've never been able to pry it out of them, either. Good, thoughtful, smart people who support the death penalty. I don't get it. (Except for "retribution" argument which I don't agree with.)

Posted by: Laura Graser | Jun 1, 2008 7:57:35 PM

Laura, there's the virtue of victim-fucking, that I mentioned above. It's somewhat of a subjective virtue, then again, what isn't.

Posted by: bruce | Jun 1, 2008 10:39:16 PM

Mill was also talking about deterrence.

The death penalty is justifiable on the grounds that some crimes are simply so horrible that the offender has forfeited his right to live among us. It also deters. And it can be cheaper . . . .

Posted by: federalist | Jun 2, 2008 4:06:32 PM

Bruce: It may be impossible to have a dispassionate discussion about the death penalty, but I'd like to try. In response to your three points:

1. I agree that some crimes are very horrible. First, the murderer is not living among -- at least most -- us if he's in prison for life. Second, I prefer to focus on us, rather than the horrible person. No matter how horrible a crime, I choose to respond with life in prison, so having the death penalty in my state forfeits my right to make that response. It forces me to be part of a group (Oregonians) who kill.

2. I am unconvinced that it deters -- I've met a lot of murderers, and they are not a deliberative group. And in general they were on drugs and often they were mentally ill at the time of the crime. Also, people thinking about murder either aren't thinking of the consequences (heat of passion murders) or think they will get away with it.

Doesn't the death penalty for child rape encourage murder? After the rape, why not kill the victim/witness?

3. Speaking of my experience in Oregon, the death penalty has a very low "yield": of 100 people who are charged with capital murder, most make a plea bargain and of the ones who go to trial, some are not convicted of capital murder, and of the ones who are, many do not get a death sentence. Of those that do, some are reversed on appeal, and the cycle begins again. Of the cases that are affirmed on appeal, some are overturned on state post-conviction or federal habeas.

All that I know is true. I don't know the hard numbers, so I'm not vouching for this number. But I'd say of every 100 capital murder charges the "yield" (people who are actually executed) is less than 1 in Oregon. (Two so far since 1984, and they were both volunteers.)

So the comparison is the cost of all the capital trials (on top of the cost for a non-capital trial) to get one execution.

On this point I'll grant that some murders plea bargain, rather than go to trial and face the death penalty, and that's cheaper for that one case. But my observations in Oregon is this is a small savings compared to the cost of the state trying to prove aggravating factors and the defense trying to prove mitigating factors in a capital context.

Posted by: Laura Graser | Jun 4, 2008 6:24:02 PM

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