Bootstrapping Against Capital Punishment

Bootstrap_1.jpgWe’ve been fairly called out for giving insufficient attention to the ongoing quiet revolution in capital punishment law. It is true: our criminal law coverage is underdeveloped. My excuse – as usual – is incompetence. DP law presents a host of complicated doctrinal problems: sounding off at random to the latest development is dangerous. On the other hand, no one said blogging was supposed to be safe.

Today, Doug Berman comments on the NYT story on capital punishment costs. The story offers anecdotal evidence that the judiciary has responded to underfunded capital defense units by shutting down prosecutions. If the trend continues, “states unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions.” Doug sums up:

Consequently, states that do not adequately fund capital defense get sub-standard efforts that lead to more costs on the back end during appellate review. Indeed, as the posts below highlights, any capital punishment system is necessarily a very costly endeavor.

My cynical response to these observations starts with the observation that stringent judicial review of capital claims hinges largely on Justice Kennedy’s continued status as swing Justice. The executing States would move quickly to reduce capital defense guidelines given even subtle signals from the Court that ultimate merits review would be unavailing.

Moreover, it seems odd to me to claim that the death penalty is expensive and therefore inefficient when, of course, it is expensive primarily as the result of a self-conscious litigation strategy by folks like Steven Bright and Brian Stevenson. The death penalty doesn’t have to be expensive: abolitionists have made it so on purpose. By setting ever-higher standards for effective capital defense through litigation and by example, abolitionists have made death penalty prosecutions more difficult for states to swallow. Of course, abolitionists can have mixed motives: a standard that increases cost will also likely reduce wrongful conviction in any individual case. But it is odd that the article spent so little time examining the possibility that costs aren’t a byproduct of the search for innocence but instead a direct result of what we might think of a litigation strategy to impose a constitutional tax on capital prosecutions. The article says – without further explanation – that “Lawmakers say [a particular judge] and the defense lawyers are deliberately driving up the costs to make sure that the death penalty is too expensive for the state.” Well, no kidding!

Increasing costs is good strategy if your only goal is to prevent executions. But it is a bad strategy – as least when compared to the innocence project – at increasing public support for abolition. And it is a worse strategy if your concerns are more broadly directed. Legislatures will resent being bootstrapped out of their preferred sentencing means. And it is unlikely that the death penalty funds taken from indigent defense organizations by spiteful legislatures will ever be restored.

(Image source: Wikicommons)

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3 Responses

  1. Doug B. says:

    Dave: Good insights, though they ought to be refined for regional realities. It seems likely that the costs approach is working in northern states — New York, New Jersey — that are more agnostic about the death penalty. Ironically, these are the states that can generally “afford” to do the death penalty right, but they are moving away from capital punishment because it just does not seem worth the cost. (Also, it is not clear Justice Kennedy’s views have any serious impact on these state’s at all — it is the states’ high court justices that really shape the death penalty in these regions.)

    Meanwhile, states in the deep south are generally eager to do capital punishment on the cheap, and efforts to drive up the costs are unlikely to change political debates. However, cost realities are also driven by widely-shared popular aversion to innocents on death row and inhumane execution methods. Like any other “government program,” insufficent funding means less effectiveness, which in this context means greater risk on innocents on death row and inhumane execution protocols.

    Moreover, I think your cost views are a bit incomplete: ADR scholars will remind us that ALL litigation is relatively expensive (which in part explains why so many non-capital cases are resolved through plea bargains). The death penalty will always be a litigation heavy universe no matter what Justice Kennedy thinks, and wise policy-makers must understand that forces a lot more powerful than the defense bar drives the economics of capital punishment.

  2. Miss P says:

    I don’t think it’s odd that the article didn’t focus on this suspicion. What evidence is there that this is a self-conscious strategy of the abolitionist establishment? I agree that it wouldn’t be a good one, and I wouldn’t attribute too many bad strategic decisions to brilliant folks like (Stephen) Bright and (Bryan) Stevenson.

    To the extent that capital defenders and post-conviction counsel have fought for and won high standards for capital representation, couldn’t they just want the best possible legal landscape for their clients — costs aside? And isn’t it in fact their duty to advocate for precisely this, when it is in the interests of particular clients?

    As Prof. Berman points out, litigation, and capital litigation in particular, is expensive, for both sides. The high costs of providing constitutionally effective counsel are well beyond the control of individual defenders, and it is surely not their prerogative to sacrifice a client’s representation for the sake of political expediency or their office’s or state’s budgets. But the defense bar at large is also not the sole source of defense costs and standards. For instance, the complexity of retroactivity doctrine and other limits on habeas corpus heavily burden trial and appellate defenders to get things right prior to collateral review, and the increasing use of DNA evidence obligates defense counsel to retain forensic experts, learn new areas of law and science, etc.

  3. Alex R. says:

    Like Miss P, I doubt that driving costs of litigation up, rather than increasing procedural protections, is the principal strategic consideration of most capital defenders.

    I also think it is a little strange, given the context of the Times article, to suggest that capital defense counsel are the only actors driving the costs of litigating death penalty cases. The principal case described in the Times article is in Georgia, in which Brian Nichols is accused of killing four officials, including a State court judge, during and in the aftermath of an escape from custody. The evidence of guilt (in the traditional sense, as in “did he do it?”) against Mr. Nicholas is overwhelming, and all observers seem to agree that the case will focus on culpability and appropriate punishment. Nonetheless, the State has assigned five prosecutors to litigate the case, listed 400 witnesses for trial, retained forensic experts, and turned over 32,000 pages of documents and 400 hours of taped phone calls for defense attorneys to sift through. The argument could easily be made that the State, knowing that indigent defense services are seriously underfunded and disfavored in Georgia, is trying to capitalize on its superior resources by making it impossible for Mr. Nichols to mount a constitutionally adequate defense to these serious charges (which appear in a 54-count indictment). In the long run, it seems like an error of judgment, especially if the result is a constitutionally deficient trial that must be repeated, which will only drive the costs of prosecuting Mr. Nichols even higher.