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September 28, 2011

Any reflections on efforts to regulate death sentencing discretion and take-away lessons?

As I mentioned in class on Tuesday, we will formally conclude our extended examination into the exercise and regulation of death penalty sentencing discretion on Thursday.  In that class hour, I will ask some general and some specific questions about what we think about the law's modern efforts and (lack of?) success in regulating capital sentencing discretion.  These questions may include:

1.  Was Justice Harlan ultimately right in McGautha when asserting that providing useful/effective legal standards for the capital sentencing discretion is "beyond present human ability"?

2.  Even if you think the development of capital sentencing discretion standards are a good idea, should such standards be mandated by constitutional rules?

3.  Is the effort at regulating death sentencing decision-making by juries and judges doomed to some measure of failure because there is little or no regulation of  death sentencing decision-making by prosecutors?

4.  Are modern experiences with capital sentencing discretion and regulation have facets that are unique to application of the punishment of death, or are there important lessons to be learned for all forms of sentencing practices and types of punishment?

I could go on and on with questions, but you get the idea.  And, though we will discuss these and other matters in class on Thursday, I am eager to hear any and all thoughts on these topics now in the comments (and/or throughout our up-coming Fall Break). 

UPDATE:  As detailed in this post on my main blog, former Justice John Paul Stevens has recently made some interesting comments lamenting his 1976 vote to approve the special way Texas uses special questions to guide death penalty sentencing discretion.

September 28, 2011 in Class activities | Permalink

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Comments

My thoughts on the first question: I don't think the take-away from Furman was that the constitution necessarily requires the most effective/congruent/"just" set of criteria that is humanly or metaphysically possible - only that there must be some criteria. Pre-Furman, the jury was free to impose a death penalty on essentially any basis it liked - skin color, hair color, religion, poverty, age, you name it. In systems where there are at least enumerated STANDARDS, it is much more difficult for the jury to impose a death penalty on an impermissible or arbitrary basis, although obviously it is not impossible. As we saw looking at the Florida and Texas death penalty statutes, judges or juries must at least support their decision with some level of reasoning. I also think that the practice of automatic review by appellate courts helps ensure that death penalties are never imposed in a totally inappropriate, arbitrary or "freakish" fashion. Realistically, I think that's about all we can hope for.

Posted by: Adam Young | Sep 29, 2011 1:28:56 PM

What has stuck out most to me in our discussions is the gatekeeping role prosecutors play in the lottery. I think many of the mechanisms put in place to reduce disparity in the system are simply hand-wringing because what matters most is the initial decision of the prosecutor to pursue capital charges. The irony, as I see it, is that this is an area where law has the least ability to be effective. I can't see legislators attempting (or even having the authority) to stipulate the conditions under which a capital crime MUST be charged, let alone interfering with the process of plea dealing.

This is why I favor an absolute abolition of the death penalty. It will never matter how many layers we put in place to limit the number of possible entrants to the death penalty lottery because the initial stage, prosecutorial discretion, is the key flaw. We when were first told about Hamilton County Prosector Joe Deters decision to prosecute everyone and anyone whose crime could warrant a capital punishment I thought it was an abrogation of authority. Now I think its good policy that allows the later steps of the process to function. The issue becomes how, or if, we can legislate such a policy.

Posted by: Kevin S | Sep 29, 2011 1:45:35 PM

I think that these issues of discretion and disparity are just as prevalent in non-capital cases; however, because they have the possibilities of being rectified in the future (the defendant is not dead) if there is new evidence found, the issue is not as grave.

I agree with Adam regarding the imposition of standards: whether or not they are the best possible, it is helpful to guide decision-makers' thinking processes to ensure non-arbitrary sanctions (of course assuming the rationality of our peers). In any event, at least trying to rein in the human error is a step in the right direction for *any* punitive measure.

Posted by: Heather Williams | Sep 29, 2011 2:01:31 PM

I agree with Kevin that prosecutors have an enormous role in the system. At least one commentator has said that the relationship between electoral demographics and prosecutorial discretion may even explain the disparity found in the Baldus study. The argument is that because blacks tend to dislike the death penalty, predominantly black jurisdictions are more likely to elect prosecutors who dislike the death penalty. Meanwhile jurisdictions that are predominantly white are more likely to elect prosecutors who have a more favorable view of the death penalty, because more whites tend to support the death penalty. A crime committed in a jurisdiction that is mostly white will likely be against a white victim. Therefore the defendant will be more likely to face a prosecutor who favors the death penalty.

Although I am skeptical that this reason would explain all of the disparity in the Baldus study, it seems like this could be a question worth some statistical exploration. Then again, maybe the fact that we have not seen death penalty supporters come forward with this sort of evidence suggests that the commentator's hypothesis is wrong.

Posted by: Rees Alexander | Sep 29, 2011 2:19:48 PM

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