The Cost Of Death

Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and impenetrable procedural thickets are hardly unique to capital cases. Nonetheless, the Court is far less likely to pay attention to these claims when the consequences to the defendant seem less harsh. Criminal law and procedure scholars such as Robert Weisberg of Stanford and Douglas Berman of Ohio State have described how the Court’s concern with death leads it to shortchange the constitutional claims of defendants facing lesser punishments. Berman has calculated that about one in ten thousand state felony sentences is a death sentence, yet the Court devotes more resources to reviewing death sentences than to reviewing claims in all other criminal cases combined. And while the Court has repeatedly considered whether a death sentence is proportionate to a particular class of crimes—for example, barring death sentences for non-homicide offenses or for juvenile or mentally retarded defendants—it has set virtually no limits on the severity of prison sentences. In the 40 years that the Court has been actively policing capital punishment, prison sentences have lengthened and the U.S. prison population has skyrocketed. With execution at the top end of the scale of punishment, a life sentence begins to look something like leniency, and other sentences are inflated in turn.

Capital cases also consume thousands of hours of legal services from some of the finest legal minds in America. The time those lawyers spend challenging death sentences of inmates whose guilt is not seriously in doubt could be spent preventing and remedying wrongful convictions, ensuring that all defendants receive prompt appointment of competent counsel, and attacking draconian prison conditions, not to mention providing civil justice to poor and disenfranchised people. But as long as the death penalty is with us, superb and committed lawyers at organizations such as the Southern Center for Human Rights, the Equal Justice Initiative, and the NAACP Legal Defense and Educational Fund will find themselves defending the lives of a few while the lives of many others continue to be ruined by pervasive flaws in our criminal justice system.

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Source: Pamela S. Karlan, Boston Review, November/December 2011