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July 7, 2008

More coverage of prosecutors using capital discretion differently

This effective local article from Missouri, headlined "Prosecutors use discretion differently in death sentencing," tells a story that is familiar to anyone who follows closely the modern administration of capital punishment.  The piece does a particularly effective job highlighting factors that can lead to (and justify?) different prosecutors taking different approaches to the death penalty.  Here are snippets from the piece:

The city and county are two adjacent jurisdictions served by long-serving Democrats who apply the same state laws and court precedents but use their discretion differently. And that difference fits a national pattern: Urban prosecutors are less likely than their suburban or rural counterparts to go after the ultimate punishment....

[Observers] say those decisions are guided in part by the will of the constituents.  Urban jurors, more likely to have negative experiences with the justice system, may be more reluctant to deliver a death sentence. Families of urban victims may be less likely to want it. And the complexity of a capital trial may tax limited resources in a busy urban prosecutor's office....

Prosecutors struggle to overcome concerns of bias, especially in urban areas where jurors come from a large minority population, said Michael D. Rushford, president of the Criminal Justice League Foundation, a victims' rights advocacy group in Sacramento, Calif.  "It's a big-city problem; a lot of jurors believe these guys are being pulled off the street and prosecuted," he said.

Moreover, building a solid case can be difficult in an urban setting, where there may be rampant distrust of law enforcement and greater fear by witnesses of retaliation, Rushford said.  Not all murder victims' survivors want a death sentence.  Michelle Stanze, [a slain] officer's widow, said she supported a plea agreement to avoid a trial....

Then comes the cost of pressing a death penalty case, which typically is more complex.  "I've got to believe in some places that money becomes a problem," Rushford said. "If it's going to clean out the budget, there may be some pressure not to go for the death sentence."

July 7, 2008 at 08:58 AM | Permalink


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I'm not sure what makes this an "effective" article. Conspicuously absent from the Post-Dispatch's assessment of Saint Louis County's devotion to the death penalty is the frequency with which Saint Louis County prosecutor's exclude black jurors based on race. See State v McFadden, 216 SW3d 673 (Mo banc 2007), State v McFadden, 191 SW3d 648 (Mo. banc 2006) (different trial)State v Hampton, 163 SW3d 903 (Mo. banc 2005). See also Smulls v State, 935 S.W.2d 9 (Mo. banc 1996) (counsel failed to seek disqualification of Saint Louis County judge based on racially biased remarks and professsed inability to know whether a juror is black), and State v Holman, 759 S.W.2d 902 (Mo. App. E.D. 1988) (Saint Louis county trial court judge erred in failing to find a prima facie case where prosecutor said he struck two jurors because they were black women). The Post-Dispatch is a very suspect source for any criminal justice reporting out of Saint Louis county, as it seeks to serve the prosecutor's office in exchange for sensational scoops.

Posted by: David | Jul 7, 2008 10:02:49 AM

Of course by far the most striking disparity is between states were the death penalty is not available (13) and states where it is (37). To my knowledge, no court has found that that disparity renders the death penalty unenforceable.

If I'm wrong about that, I'll stand to be corrected by a case citation.

Posted by: Bill Otis | Jul 7, 2008 11:17:05 AM

Not yet, Bill, but if the present trend on the declining number of states needed to form a national "consensus" for Eighth Amendment "proportionality" review continues, in a few more years 13 states will be sufficient to effectively amend the Constitution and block the other 37 from implementing policies they deem necessary.

Posted by: Kent Scheidegger | Jul 7, 2008 1:39:45 PM


Indeed so. The most ominous part of Kennedy v. Louisiana was its statement that any adjustment in the death penalty wss going to be in only one direction, to wit, to have less of it. They didn't put it in exactly that lanuage, but that's what it actually means.

The idea that the majority really cares about public consensus is baloney. They care about it when it supports constraining the DP, but dismiss it (or stop it in its tracks) when it doesn't.

Posted by: Bill Otis | Jul 7, 2008 3:47:05 PM

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