Statewide capital punishment: The case for eliminating counties' role in the death penalty

Vanderbilt Law Review

Volumn 63, Issue 2, 2010, Pages 307-359

  Gershowitz, Adam M ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 78650683958     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (341)

1. See Corinna Barrett Lain, Deciding Death, 57 DUKE L.J. 1, 45 (2007) (noting that, in 2000, "Texas was the undisputed capital of capital punishment among the states").
2. See id. at 46 (noting that, in six years, Bush signed more death warrants than any other governor in the last twenty-five years);
3. see also Adam Liptak, At 60% of Total, Texas Is Bucking Execution Trend, N.Y. TIMES, Dec. 26, 2007, at Al (noting that, in 2007, over half of the nation's executions took place in Texas, in part because prosecutors, courts, the pardon board, and the governor all pushed for expeditious executions).
4. See TEX. DEP'T OP CRIMINAL JUSTICE, TOTAL NUMBER OP OFFENDERS SENTENCED TO DEATH FROM EACH COUNTY, http://www.tdcj.state.tx.us/stat/countysentenced.htm (last visited Jan. 31, 2010) [hereinafter TDCJ, TOTAL NUMBER OF OFFENDERS] (listing number of death sentences imposed by each county in Texas).
5. Id.
6. see also Stephen B. Bright, The Death Penalty and the Society We Want, 6 PIERCE L. REV. 369, 374 (2008) ("More people sentenced to death in Harris County have been executed than from any state except Texas itself.").
7. Examples abound. In Pennsylvania, the vast majority of death sentences come from Philadelphia County, while comparably sized Pittsburgh sends few people to death row.
8. See Tina Rosenberg, The Deadliest DA., N.Y. TIMES MAG., July 16, 1995, at 22 (observing that of Pennsylvania's 194 death row inmates, 105, or 55 percent, were sentenced in Philadelphia, where prosecutors seek the death penalty far more frequently than in Pittsburg). In Maryland, a study found that Baltimore County murderers were fourteen times more likely to be sentenced to death than those convicted in Montgomery County.
9. See Ray Paternoster, Misunderstandings Cloud Death Penalty Findings, BALT. SUN, Dec. 20, 2005, at A19 ("Defendants who killed their victims in Baltimore County were ... nearly 14 times more likely [to be sentenced to death] than if they lived in Montgomery county . . . .").
10. See infra notes 51-60 and accompanying text (providing additional examples).
11. Not all states utilize a county-based death penalty system. In a handful of smaller states, the state attorney general's office, rather than individual counties, handles capital cases.
12. See, e.g., Scott Sandlin, Death Penalty Out in Guard Killing; Inmates' Defense Fund Fell Short, ALBUQUERQUE J., Apr. 4, 2008, at C1 (noting that the State Supreme Court dismissed capital charges because the Attorney General's Office was unable to procure sufficient funding for capital defense lawyers).
13. See Adam M. Gershowitz, Imposing a Cap on Capital Punishment, 72 Mo. L. REV. 73, 104-05 (2007) (arguing that the current system allows prosecutors to seek capital punishment in "borderline cases").
14. See JAMES S. LIEBMAN ET AL., A BROKEN SYSTEM, PART II: WHY THERE IS SO MUCH ERROR IN CAPITAL CASES AND WHAT CAN BE DONE ABOUT IT iv (2002) ("The more often states succumb to pressures to inflict capital sentences in marginal cases, the higher is the risk of error and delay, the lower is the chance verdicts will be carried out, and the greater is the temptation to approve flawed verdicts on appeal."). Recently, consider the case of Troy Davis which caused international headlines due to questions of his innocence.
15. Bill Rankin & Rhonda Cook, Court Issues Stay, Lets Davis Make his Case, ATLANTA J.-CONST., Oct. 25, 2008, at Al.
16. In Texas, at least, it is quite common to hear Texas executions referred to as "Texecutions."
17. See, e.g., Thom Marshall, Jury Room Camera Could Help System, HOUSTON CHRON., Dec. 7, 2002, at A33 ("Harris County is widely known for handing down more death penalties than any other county, in the state that executes more people than any other state in the Union. Texas does about one-third the total number of executions carried out in the United States. I recently heard a fellow refer to them as 'Texecutions.' "). No one speaks of a "Houstecution," or a "Dall-ecution."
18. See, e.g., Shaila Dewan & Brenda Goodwin, Capital Cases Stall as Costs Grow Daunting, N.Y. TIMES, Nov. 4, 2007 (noting that the costs of prosecuting the Atlanta courthouse shooter had topped $1.2 million before the trial even began);
19. Kevin Landrigan, Taxpayers Could Be Out $2M for Capital Cases, NASHUA TELEGRAPH, Mar. 27, 2008 (discussing the high cost of two pending capital murder cases).
20. For a recent editorial suggesting that costs should never be a factor in deciding whether to seek the death penalty, see Editorial, Money Has No Place in Death Penalty Debate, STAR PRESS, Sept. 21, 2008, at 2D.
21. For commentary asserting the foolishness of saying money has no place in such decisions, see Douglas A. Berman, Does Money Have No Place In Any Life/Death Debate?, SENTENCING L. & POL'Y, Sept. 21, 2008, http://sentencing. typepad.eom/sentencing-law-and-policy/2008/09/does-money- have.html#comments (quoting and criticizing the above editorial from The Star Press).
22. See discussion infra Part I.C.
23. See infra notes 91-93 and accompanying text.
24. There is an expression among prosecutors that they are "in the business of sales, not warranties."
25. Consider the case of John Paul Penry who was sentenced to death three separate times, each of which was reversed on appeal. Penry was on death row in Texas for twenty-eight years before the district attorney agreed to a plea deal with a life sentence. Mike Toison, An End to a Legal Saga: Deal Keeps Penry Imprisoned for Life: Inmate Who Had Death Sentence Overturned Three Times Apologizes, HOUSTON CHRON., Feb. 16, 2008, at B1. Experts speculate that the effort to execute Penry cost tens or perhaps even hundreds of millions of dollars.
26. See Douglas A. Berman, Wondering About Death and Dollars in Ohio, SENTENCING L. & POL'Y, Feb. 18, 2008, http://sentencing.typepad.com/ sentencing-law-and-policy/2008/02/wondering-about.html (estimating that Penry's defense may have cost as much as one billion dollars).
27. Although counties usually pay for trials, many states pick up the tab for appeals. Adam M. Gershowitz, Pay Now, Execute Later: Why Counties Should Be Required to Post a Bond to Seek the Death Penalty, 41 U. RICH. L. REV. 861, 891 (2007).
28. See David McCord, Lightning Strikes: Evidence from the Popular Press that Death Sentencing Continues to be Unconstitutionally Arbitrary More than Three Decades After Furman, 71 BROOK. L. REV. 797, 822-23 (2005) ("In only two jurisdictions does an official with jurisdiction-wide authority make death penalty decisions . . . These disparities are exacerbated by the fact that funding of prosecutors' offices is also largely at the county level . . . Likewise, funding for indigent defense in death cases is also often at the county level....").
29. See Sheri Lynn Johnson, Wishing Petitioners to Death: Factual Misrepresentations in Capital Cases in the Fourth Circuit, 91 CORNELL L. REV. 1105, 1108 n.5 (2006) ("The three most common species of claims in capital cases are ineffective assistance of counsel claims, Batson claims, and Brady claims.");
30. see also ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 131 (2007) ("Brady violations are among the most common forms of prosecutorial misconduct.").
31. See, e.g., Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime, But for the Worst Lawyer, 103 YALE L.J. 1835, 1836 (1994) ("Poor people accused of capital crimes are often defended by lawyers who lack the skill, resources, and commitment to handle such serious matters.").
32. There have been 133 exonerations of death row inmates since the Supreme Court reinstated capital punishment in 1976. See DEATH PENALTY INFO. CTR., INNOCENCE AND THE DEATH PENALTY, http://www.deathpenaltyinfo.org/innocence-and- death-penalty (last visited Jan. 31, 2010) (listing number of exonerations by year).
33. I have raised this argument previously. Gershowitz, supra note 7, at 90-91.
34. See Andrew Ditchfield, Note, Challenging the Intrastate Disparities in the Application of Capital Punishment Statutes, 95 GEO. L.J. 801, 805 (2007) ("Reference to sovereignty rights supports interstate variations in the application of the death penalty, but it does not support variations in the application of a capital punishment statute among different legal jurisdictions within the same state.").
35. See Doron Teichman, The Market for Criminal Justice: Federalism, Crime Control, and Jurisdictional Competition, 103 MICH. L. REV. 1831, 1834 (2005) (observing and lamenting how decentralized criminal justice encourages jurisdictions to harshen their criminal laws in order to drive criminals to other jurisdictions).
36. For instance, Colorado has executed one person since 1976 and presently has only three people on death row awaiting execution. DEATH PENALTY INFO. CTR., STATE BY STATE DATABASE, http://www.deathpenaltyinfo.org/state-by-state (click on Colorado using the map or drop-down menu) (last visited Jan. 31, 2010).
37. Ditchfield, supra note 21, at 805.
38. Counties are not treated as separate sovereigns for double jeopardy purposes. See Waller v. Florida, 397 U.S. 387, 392 (1970) (forbidding a second trial by state prosecutors after defendant was first prosecuted for the same offense by county prosecutors).
39. See Carol S. Steiker & Jordan M. Steiker, Judicial Developments in Capital Punishment Law, in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT 47, 57-59 (James R. Acker et al. eds., 1998) (discussing the Court's "narrowing" doctrine).
40. But see Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: The Paradox of Today's Arbitrary and Mandatory Capital Punishment Scheme, 6 WM. & MARY BILL RTS. J. 345, 364-68 (1998) (arguing that the Court has not followed through on its demand for narrow aggravating factors).
41. See Maynard v. Cartwright, 486 U.S. 356, 359-60 (1988) (holding unconstitutionally vague under the Eighth Amendment the "especially heinous, atrocious, or cruel" aggravating circumstance of the Oklahoma death penalty statute because it did not provide sufficient guidance for the jury to impose the death penalty);
42. Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (reversing the petitioner's death sentence because there was "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not").
43. See John A. Horowitz, Note, Prosecutorial Discretion and the Death Penalty: Creating a Committee to Decide Whether to Seek the Death Penalty, 65 FORDHAM L. REV. 2571, 2587-92 (1997) (discussing how local district attorneys in California and Colorado are supervised by their states' attorneys general and how the attorneys general have supersedure power to remove cases from the local prosecutors).
44. See id. at 2582-84 (recounting Governor Pataki's removal of District Attorney Johnson's discretion to seek the death penalty in the Diaz case).
45. Id.
46. In Delaware and Rhode Island, for instance, the state attorney general's office, rather than county prosecutors, handle all of the states' criminal cases. Delaware Attorney General, Divisions & Units: Criminal Division, http://attorneygeneral.delaware.gov/office/criminal.shtml (last visited Jan. 31, 2010);
47. State of Rhode Island Office of the Attorney General, Civil and Criminal Division, http://www.riag.state.ri.us/civilcriminal/ (last visited Jan. 31, 2010).
48. Rhode Island does not authorize capital punishment. DEATH PENALTY INFO. CTR., STATE BY STATE DATABASE, http://www.deathpenaltyinfo.org/state-by-state (click on Rhode Island using the map or drop-down menu) (last visited Jan. 31, 2010).
49. See Pamela S. Karlan, Just Politics? Five Not So Easy Pieces of the 1995 Term, 34 HOUSTON L. REV. 289, 302 (1997) (recounting how the State of Alabama adopted a constitutional amendment in the 1950s to abolish Macon County "if necessary" to prevent blacks from voting).
50. DEATH PENALTY INFO. CTR., STATE BY STATE DATABASE, http:// deathpenaltyinfo.org /state-by-state (click on Pennsylvania using the map or drop-down menu) (last visited Jan. 31, 2010).
51. See PA. DEP'T OF CORR., PERSONS SENTENCED TO EXECUTION IN PENNSYLVANIA AS OF NOVEMBER 2, 2009, available at http://www.cor.state.pa.us/portal/lib/portal/ Execution-List.pdf [hereinafter PDC, PERSONS SENTENCED].
52. Id.
53. Lynne Abraham has served as Philadelphia County District Attorney since 1991. City of Philadelphia District Attorney's Office, Meet the District Attorney, http://www. phila.gov/districtattorney/AboutUs/meetTheDA.html (last visited Jan. 31, 2010).
54. See Rosenberg, supra note 5, at 22 ("Abraham's office seeks death virtually as often as the law will allow.");
55. see also William C. Smith, A Tale of Two Cities, LEGAL INTELLIGENCER, Jan. 15, 1997, at 1 (explaining that the difference is due in part to the higher murder rate in Philadelphia but in greater part to the fact that the "Philadelphia D.A.'s office is much more aggressive in seeking the death penalty").
56. PDC, PERSONS SENTENCED, supra note 34.
57. All populations are taken from the estimated 2008 Census. See U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: PENNSYLVANIA, http://quickfacts.census. gov/qfd/states/ 42000.html (last visited Jan. 31, 2010) (follow "Allegheny" or "Philadelphia" hyperlink under "Pennsylvania counties").
58. See Gregg v. Georgia, 428 U.S. 153, 169 (1976) ("We now hold that the punishment of death does not invariably violate the Constitution.").
59. See TDCJ, TOTAL NUMBER OF OFFENDERS, supra note 3 (listing 1,004 offenders sentenced to death as of December 31, 2008). Of course, many of these death sentences were reversed and did not result in executions.
60. Id.
61. Id.
62. U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: HARRIS COUNTY, TEXAS, http://quickfacts.census.gov/qfd/states/48/48201.html (last visited Jan. 31, 2010). Although revealing, these numbers do not tell the full story.
63. For many years, Harris County sought the death penalty so aggressively that it had a comparatively low success rate at trial. For instance, in 1999, prosecutors only won death sentences in 53 percent of the cases where they sought death.
64. See Mary Flood, What Price Justice?: Gary Graham Case Fuels Debate Over Appointed Attorneys, HOUSTON CHRON., July 1, 2000, at Al. A Houston Chronicle study found that during the 1980s and 1990s, Dallas County prosecutors won death sentences in 94 percent of the cases in which it was sought compared with 75 percent in Harris County.
65. See Mike Toison, A Deadly Distinction: Harris County Is a Pipeline to Death Row, HOUSTON CHRON., Feb. 5, 2001, at Al.
66. In 2008, for the first time in three decades, Harris County did not sentence a single defendant to death. Michael Graczyk, Texas Sentences 9 To Die in '08, Fewest in Decades, ASSOC. PRESS, Dec. 4, 2008.
67. U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: TEXAS, http://quickfacts.census. gov/qfd/states/48000.html (last visited Jan. 31, 2010) (follow "Bexar," "Dallas," "Harris," or "Tarrant" hyperlink under "Texas counties").
68. See TDCJ, TOTAL NUMBER OF OFFENDERS, supra note 3 (listing Texas death penalties by county). The fourteen additional counties are: Bowie, Brazos, Cameron, Collin, El Paso, Hidalgo, Jefferson, Lubbock, McLennan, Montgomery, Nueces, Potter, Smith, and Travis.
69. Id.
70. See Lori Montgomery, Md. Questioning Local Extremes on Death Penalty, WASH. POST, May 12, 2002, at C1 (indicating that Baltimore seeks the death penalty infrequently).
71. See id. (comparing Baltimore and Baltimore County).
72. Paternoster, supra note 5, at A19.
73. Id.
74. See People v. LaValle, 817 N.E.2d 341, 361 (N.Y. 2004) (holding jury instruction unconstitutional).
75. Adam Nossiter, Balking Prosecutors: A Door Opens to Death Row Challenges, N.Y. TIMES, Mar. 11, 1995, at 27.
76. THE CAPITAL DEFENDER OFFICE, CAPITAL PUNISHMENT IN NEW YORK STATE; STATISTICS FROM EIGHT YEARS OF REPRESENTATION (2003), available at http://www.nycdo.org/8yr.html.
77. See Nossiter, supra note 52 (noting the Bronx District Attorney's intention not to seek the death penalty after New York's 1995 statute took effect).
78. See Richard Willing & Gary Fields, Geography of the Death Penalty, USA TODAY, Dec. 20, 1999, at Al (recounting the Ohio disparity, as well as variations in other states).
79. Compare U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: FRANKLIN COUNTY, OHIO (2009), http://quickfacts.census.gov/qfd/states/39/39049.html (listing the population of Franklin County),
80. with U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: HAMILTON COUNTY, OHIO (2009), http://quickfacts.census.gov/qfd/states/39/39061.html (listing the population of Hamilton County).
81. See Ohio Department of Rehabilitation and Correction, Death Row Inmates, http://www.drc.state.oh.us/Public/deathrow.htm (last visited Jan. 31, 2010) (including a list of inmates indicating that there were thirty-six from Hamilton County and twelve from Franklin County).
82. See John M. Scheb II, William Lyons & Kristin A. Wagers, Race, Prosecutors and Juries: The Death Penalty in Tennessee, 29 JUST. SYST. J. 338, 345 (2008) ("In Shelby County, which contains Memphis, prosecutors sought the death penalty 52 percent of the time, while in Davidson County (Nashville) prosecutors pursued capital punishment only 12 percent of the time.").
83. See Tennessee Department of Corrections, Death Row Facts, http://www.tennessee. gov/correction/deathfacts.html (last visited Jan. 31, 2010) (indicating that there are thirty-six inmates on death row from Shelby County and eleven from Davidson County).
84. The most recent estimates were that Davidson County's population was 626,144 and Shelby County's population was 906,825. U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: DAVISON COUNTY, TENNESSEE (2009), http://quickfacts. census.gov/qfd/states/47/47037.html;
85. U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: SHELBY COUNTY, TENNESSEE (2009), http://quickfacts.census.gov/qfd/states/47/47157.html.
86. See, e.g., Joseph R. McCarthy, Note, Implications of County Variance in New Jersey Capital Murder Cases: Arbitrary Decision-Making by County Prosecutors, 19 N.Y.L. SCH. J. HUM. RTS. 969, 980-83 (reviewing variations in New Jersey, Nebraska, and Virginia).
87. See Anthony Neddo, Prosecutorial Discretion in Charging the Death Penalty: Opening the Doors to Arbitrary Decisionmaking in New York Capital Cases, 60 ALB. L. REV. 1949, 1950 (1997) ("[C]harging the death penalty may depend on arbitrary decisionmaking processes reflective of an individual prosecutor's moral or ideological position on the death penalty, or on his or her notion of justice.").
88. See supra notes 34-38 (detailing the difference between Philadelphia and Pittsburgh).
89. See U.S. DEP'T OF COMMERCE, COUNTY AND CITY DATA BOOK 374-75 (14th ed. 2007).
90. Harris County has sent nearly three times as many defendants to death row as Dallas County. See TDCJ, TOTAL NUMBER OF OFFENDERS, supra note 3 (listing the number of murders committed in Houston and Dallas).
91. See, e.g., Prosecutor: Death Penalty Hinges on Justice, Not Money, SEATTLE TIMES, June 19, 2000, at B2 ("Spokane County Prosecutor Steve Tucker says money won't be a factor in his decision whether to pursue the death penalty against Robert Yates Jr. in eight serial killings. 'It's about seeking justice. Money won't or shouldn't play into it at all,' Tucker said last week.").
92. See Amanda S. Hitchcock, Comment, Using the Adversarial Process to Limit Arbitrariness in Capital Charging Decisions, 85 N.C. L. REV. 931, 951 (2007) ("Prosecutors cannot simply ignore these [cost] realities");
93. see also Berman, supra note 14 (arguing that costs are a relevant consideration).
94. See Steve Brewer, A Deadly Distinction; County Has Budget to Prosecute with a Vengeance; District Attorney's Office Focuses on Capital Cases, and Commissioners Court Backs Up the Approach, HOUSTON CHRON., Feb. 4, 2001 (quoting a state district judge as saying that "one of the reasons Harris County tries so many capital murder cases is simple economics - we can afford to").
95. In one case, a judge actually forbade prosecutors from seeking the death penalty because the cost of providing an adequate defense would bankrupt the county which had a population of less than 13,000 people. Recognizing that such a ruling was impermissible, the judge quickly reversed course.
96. See Judge Changes Mind on Murder Costs, N.Y. TIMES, Aug. 25, 2002, §1, at 22 (discussing the judge's reversal).
97. Factoring in financial considerations is not limited to capital cases. District attorneys are forced to take into account financial considerations every day in virtually every facet of their office policies. For example, as Dan Richman and Bill Stuntz have explained, state prosecutors rarely pursue high-end white-collar crime because the investigation necessary to win such cases is too expensive.
98. See Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 601-02 (2005) (discussing why only federal district attorneys can afford the high cost of pursuing certain investigations). It would be surprising if it were any different with respect to capital cases.
99. See U.S. CENSUS BUREAU, POPULATION FINDER: SHELBY COUNTY, TEXAS, http://www factfinder.census.gov/servlet/SAFFPopulation?geoJd=05000US48419&- state=04000US48&pctxt =cr (last visited Jan. 31, 2010) (listing the population for Shelby County, Texas in 2008 as 26,529).
100. Matthew Stoff, After Confession, Smith Sentenced to Three Life Terms, DAILY SENTINEL, Apr. 3, 2008.
101. TDCJ, TOTAL NUMBER OF OFFENDERS, supra note 3.
102. Stoff, supra note 72.
103. U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: PIKE COUNTY, INDIANA, http:// quickfacts.census.gov/qfd/states/18/18125.html (last visited Jan. 31, 2010).
104. Tim Sparks, Cost of Death Penalty Trial Can Tip Decision, FORT WAYNE J. GAZETTE, Oct. 25, 2001, at 1.
105. Id.
106. U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS: GREENE COUNTY, INDIANA, http:// quickfacts.census.gov/qfd/states/18/18055.html (last visited Jan. 31, 2010).
107. See Suspect Makes Deal To Testify in Slaying, MOBILE REG., Feb. 4,1999, at Z10.
108. Sparks, supra note 76.
109. Id.
110. In another Indiana case, prosecutors declined to seek the death penalty for a nurse convicted of killing six patients and suspected in the deaths of dozens of others because of the costs of seeking the death penalty.
111. See Bill Dedman, Ex-Nurse Sentenced to 360 Years in Killings, N.Y. TIMES, Nov. 16, 1999, at A21 ("Prosecutors did not seek the death penalty because of the higher costs of prosecuting a death penalty case.").
112. Sparks, supra note 76 (quoting Marion County prosecutor as saying that "the cost of the death penalty is never a factor in deciding against pursuing a death sentence" even though "a death penalty trial there demands the resources of five normal murder cases").
113. U.S. CENSUS BUREAU, STATE AND COUNTY QUICK FACTS: VICTORIA COUNTY, TEXAS, http://quickfacts.census.gov/qfd/states/48/48469.html (last visited Jan. 31, 2010).
114. See, e.g., Leslie Wilber, No Death Penalty for 2 Defendants in Slaying, VICTORIA ADVOCATE, May 8, 2008 (quoting the Victoria County District Attorney as saying that cost is one factor that must be considered in deciding whether to seek the death penalty).
115. Jessica Brown, West Gets 2 Life Terms, No Parole, CINCINNATI POST, Aug. 24, 2004.
116. Ollie Reed, Jr., DA Decision Not to Retry Harrison Wasn't Easy, ALBUQUERQUE TRIB., Feb. 19, 2001, at Al.
117. Id.
118. See supra note 47 and accompanying text.
119. Julie Bykowicz, Death Penalty Has Cost: Circumstances, Resources Guide Baltimore's Policy, BALT. SUN, Sept. 3, 2006, at 1A.
120. See infra Part III.A (discussing the cost savings that come from a statewide capital punishment system). In some states, the state government does step up to the plate to reimburse counties for some of the high costs of death penalty prosecutions.
121. See infra notes 223-227 and accompanying text.
122. See Brewer, supra note 68 (quoting veteran Harris County prosecutor Ted Wilson as saying, "Quite honestly, we just do so damn many more of [capital cases] than anyone else. You could go into any district attorney's office in the state and not find as many lawyers with capital prosecution experience.").
123. The former proposition-winning at trial-is not controversial, however the latter proposition-surviving on appeal-is not supported by Professor Liebman's study of thousands of death penalty cases.
124. See LIEBMAN ET AL., supra note 8, at 340 (finding that the higher the rate a county imposes death sentences, the higher the reversal rate);
125. see also James S. Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2048 (2000) (discussing the strong incentives to overproduce death sentences).
126. This issue has recently arisen in the very expensive "big city" Atlanta prosecution of Brian Nichols for killing four courthouse employees. A Republican State Senator recently explained that "the cost of the Nichols case is making prosecutors think twice about whether to seek the death penalty in future cases." NPR Morning Edition,
127. Delays Costly In Courthouse Slaying Suspect's Trial, 2008 WLNR 12936560, July 10, 2008.
128. See Michael Edmund O'Neill, When Prosecutors Don't: Trends in Federal Prosecution Declinations, 79 NOTRE DAME L. REV. 221, 241 (2003)
129. ("Lawyers in a particular U.S. Attorney's office generally hail from that district, and thus are nurtured in a particular legal climate unique to that jurisdiction. What juries and federal prosecutors deem important in a small district that encompasses rural communities may be quite different from those in a large, urban district. As a consequence, even if the policies are not expressly recorded, individual offices will have declination guidelines that arise from custom or practice.")
130. ; see also Frank O. Bowman III, Response, American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, 156 U. PA. L. REV. PENNUMBRA 226, 239 (2007), http://www. pennumbra.com/responses/ 11-2007/Bowman.pdf ("[P]rosecutors made cautious by inexperience and office culture may be especially likely to make risky cases go away, leaving little but 'slam dunks' for trial.");
131. Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 WIS. L. REV. 399, 424 (contending that "culture of integrity, as defined by clearly understood and implemented policies and rules, may be more important in shaping the ethics . . . than hiring the 'right' people" (internal quotations and citations omitted)).
132. See, e.g., Tolson, supra note 43 (explaining how the newly elected district attorney in Harris County, who had worked with his predecessor for nearly two decades, "promises no change in philosophy on the use of capital punishment").
133. See Robert Weisberg, Who Defends Capital Defendants?, 35 SANTA CLARA L. REV. 535, 535 (1995) ("The State virtually always pays for the defense of those whom it seeks to execute.").
134. Bright, supra note 18, at 1844.
135. Jeffrey Gettleman, Execution Ends Debatable Case, L.A. TIMES, Aug. 31, 2001, at Al.
136. Id.
137. Id.
138. John Shiffman, Troubled Lawyers Still Allowed to Work Death Cases, TENNESSEAN, July 25, 2001, at Al.
139. Ronald J. Tabak, Why an Independent Appointing Authority Is Necessary to Choose Counsel for Indigent People in Capital Punishment Cases, 31 HOFSTRA L. REV. 1105, 1112 (2003)
140. (citing COMMON SENSE FOUND., LIFE AND DEATH LOTTERY (2002), http://www.common-sense.org /?fnoc=./consider-this/consider-this-021015).
141. See id. at 1113-14 (recounting cronyism between a Texas judge and his "buddy," who was "incompetent to handle capital cases").
142. See Flood, supra note 43, at Al (stating that "the late state District Judge George Walker, occasionally known for taking a nap on the bench, frequently appointed his good friend, the late Joe Cannon, who slept through parts of a capital murder trial");
143. see also Paul M. Barrett, On the Defense: Lawyer's Fast Work on Death Cases Raises Doubts About System, WALL ST. J., Sept. 7, 1994, at Al (quoting a sworn affidavit of Cannon's co-counsel that Cannon slept through "significant periods [of the jury selection] on numerous occasions").
144. Flood, supra note 43, at Al.
145. Ken Armstrong & Steve Mills, Inept Defenses Cloud Verdicts: With Their Lives at Stake, Defendants in Illinois Capital Trials Need the Best Attorneys Available. But They Often Get Some of the Worst, CHI. TRIB., Nov. 15, 1999, at 1.
146. Lawrence C. Marshall, Gideon's Paradox, 73 FORDHAM L. REV. 955, 959 (2004)
147. (quoting People v. Rissley, No. 82536, 2001 111. LEXIS 241, at *40 (111. Mar. 15, 2001) (Harrison, C.J., dissenting), aff'd, 795 N.E.2d 174 (111. 2003)).
148. See Stephen B. Bright, Elected Judges and the Death Penalty in Texas: Why Full Habeas Corpus Review By Independent Federal Judges Is Indispensable to Protecting Constitutional Rights, 78 TEX. L. REV. 1805, 1807 (2000) (explaining that although Randall Dale Adams was sentenced to death at trial, he was later exonerated).
149. The unfortunate story of Randall Dale Adams was made famous in the documentary THE THIN BLUE LINE (MGM 1988).
150. Stephen B. Bright, Neither Equal Nor Just- The Rationing and Denial of Legal Services to the Poor When Life and Liberty Are at Stake, 1997 ANN. SURV. AM. L. 783, 816.
151. STANDING COMM. ON LEGAL AID & INDIGENT DEFENDANTS, AM. BAR ASS'N, GIDEON'S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE 10 (2004), available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/ fullreport.pdf.
152. Bob Sablatura, Study Confirms Money Counts in County Courts; Those Using Appointed Lawyers Are Twice as Likely to Serve Time, HOUSTON CHRON., Oct. 17, 1999, at Al.
153. In 1992 and 1996, one report found that roughly 80 percent of defendants charged with felonies in seventyfive of the nation's most populous counties-of which Harris County is one-utilized public defenders or assigned counsel.
154. CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, DEFENSE COUNSEL IN CRIMINAL CASES 5 (2001), available at http://bis. ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=772.
155. Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REV. 329, 394 (1995)
156. (quoting Jonathan E. Gradess, The Road From Scottsboro: We're Not as Far Along as We Think, 2 CRIM. JUST., Summer 1987, at 2, 4).
157. See Mary Sue Bachus & Paul Marcus, The Right to Counsel in Criminal Cases: A National Crisis, 57 HASTINGS L.J. 1031, 1103-16 (2006) (describing legislation providing for additional funding in Texas, Georgia, Virginia, Washington, and Montana).
158. See Eric M. Freedman, Add Resources and Apply Them Systematically: Governments' Responsibilities Under the Revised ABA Capital Defense Representation Guidelines, 31 HOFSTRA L. REV. 1097, 1100-01 (2003) ("[T]he states simply refuse to allocate sufficient funds to provide competent capital defense representation. But that does not make the costs disappear. It just shifts them.").
159. The commentary to Guideline 2.1 of the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases recognizes that defender organizations should be statewide so as to avoid political pressure and improve funding. ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES Guideline 2.1, cmt. at 20 (2003), available at http://www.abanet.org/ legalservices/downloads/sclaid/ indigentdefense/deathpenaltyguidelines2003.pdf ("Jurisdictionwide organization and funding can best ameliorate local disparities in resources and quality of representation, and insulate the administration of defense services from local political pressures."');
160. see also Catherine Greene Burnett, Guidelines and Standards for Texas Capital Counsel: The Dilemma of Enforcement, 34 AM. J. CRIM. L. 165, 196 (2007) (suggesting the "radical" change that Texas create a "unified, statewide capital defense office").
161. The excellent work of the Capital Jury Project has also focused on jurors. See, e.g., SCOTT E. SUNDBY, A LIFE AND DEATH DECISION: A JURY WEIGHS THE DEATH PENALTY (2005) (explaining the decision-making process of jurors);
162. William J. Bowers, The Capital Jury Project-Rationale, Design, and Preview of Early Findings, 70 IND. L.J. 1043 (1995) (same).
163. See Woodson v. North Carolina, 428 U.S. 280, 305 (1976) ("[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long.").
164. I have previously made this argument in the context of post-trial proportionality review. See Adam M. Gershowitz, Note, The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards, 86 VA. L. REV. 1249, 1288-91 (2000) (arguing that the right to life is more important than the right to liberty and the right to property).
165. See Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting) (stating that he would no longer "tinker with the machinery of death")
166. Douglas A. Berman, A Capital Waste of Time: Examining the Supreme Court's "Culture of Death," 34 OHIO N.U. L. REV. 861, 861, 875 (2008) (acknowledging that Supreme Court Justices and their clerks are "institutionally inclined to give particular careful, cautious, and conscientious attention to every claim of death penalty error raised by capital defendants" due to the "practical problems with the administration of the death penalty").
167. LIEBMAN ET AL., supra note 8, at i.3
168. But see Liebman, supra note 92, at 2111-12 (2000) (arguing that judges could demand that more evidence be produced or refuse to appoint ineffective lawyers but decline to do so out of self-interest in being reelected).
169. See, e.g., Miller-El v. Dretke, 545 U.S. 231, 265-66 (2005) (vacating conviction and death sentence because prosecutors used peremptory challenges to strike ten of eleven black prospective jurors without offering sufficient race-neutral reasons).
170. See James S. Liebman, Jeff Fagan & Valerie West, Technical Errors Can Kill, NAT'L L.J., Sept. 4, 2000, available at http://www.deathpenaltyinfo.org/ node/643 (listing faulty jury instructions as a significant error leading to reversal in capital cases).
171. See Welsh White, Curbing Prosecutorial Misconduct in Capital Cases: Imposing Prohibitions on Improper Penalty Trial Arguments, 39 AM. CRIM. L. REV. 1147, 1154-56 (2002) (discussing improper arguments, including reference to religious or biblical writings).
172. See, e.g., Paxton v. Ward, 199 F.3d 1197, 1215-16 (10th Cir. 1999) (ordering new sentencing hearing, inter alia, because the defendant was not permitted to introduce polygraph evidence explaining why previous criminal charges against him had been dismissed).
173. Let me be clear that I am looking for the most learned judges, not necessarily jurists who have simply spent a lot of time on the bench. As Professor David Schwartz recently found with respect to patent cases, there is no evidence that "district judges' reversal rates decrease as they handle more patent cases."
174. David L. Schwartz, Practice Makes Perfect? An Empirical Study of Claim Construction Reversal Rates in Patent Cases, 107 MICH. L. REV. 223, 256 (2008). Assuming Professor Schwartz's findings would be transferable to other areas of law, that does not mean an elite group of death penalty judges cannot help reduce the number of reversals. His findings do seem to indicate, however, that we must choose judges carefully and not simply rely on longevity as our primary criterion.
175. The State of Illinois has implemented a system that moves in this direction but does not go far enough. Following the large number of exonerations in Illinois in the 1990s, the Illinois Supreme Court established the Special Supreme Court Committee on Capital Cases.
176. Barbara J. Hayler, Moratorium and Reform: Illinois's Efforts to Make the Death Penalty Process 'Fair, Just, and Accurate," 29 JUST. SYS. J. 423, 424 (2008). The Committee recommended that "[l]ead counsel would be required to have at least five years of criminal litigation experience; to have tried at least eight felony trials, including two murder cases; and to have specialized capital-case training or experience."
177. Id. at 425. Unfortunately, the Illinois approach still allows too many lawyers to be involved in capital cases, rather than relying on an elite unit. As one observer noted, by the end of 2004, the Illinois Capital Litigation Trial Bar had 714 lawyers certified to handle capital cases.
178. See Judge Michael P. Toomin, Capital Punishment Reform and the Illinois Supreme Court: At the Forefront of Change, 92 ILL. B.J. 642, 644 (2004) ("As of October 15, 2005, 714 attorneys statewide have been certified as members of the Capital Litigation Trial Bar . . . ."). As I explain below, the number of death penalty lawyers should be much smaller in order to promote consistency and to ensure that quality representation is always provided.
179. See discussion infra Part II.B.2 (advocating selection of the best defense lawyers to represent defendants charged with capital offenses). The Chair of the Illinois General Assembly Capital Punishment Reform Committee appears to agree, as he recently lamented that "the capital punishment system in Illinois lacks any overall, statewide system in place to assure consistency in capital certifications or to protect against... racial and geographic bias."
180. Thomas P. Sullivan, Efforts to Improve the Illinois Capital Punishment System: Worth the Cost?, 41 U. RICH. L. REV. 935, 966 (2007);
181. see also Robert S. Burke, The Illinois Death Penalty Defense System and the ABA Capital Defense Guidelines, 29 JUST. SYS. J. 348, 353-54 (2008) (reviewing the Illinois approach to appointing defense lawyers in capital cases and explaining that there is minimal monitoring of lawyers or corrective action for inadequate performance).
182. The Law Offices of Kelly Siegler, Bio, http://www.kellysieglerlaw.com/ bio.html (last visited Jan. 31,2010).
183. See Brian Rogers, Defense Attorney Dick DeGuerin is Methodical, Prosecutor Kelly Siegler Is Theatrical: In the Temple Murder Trial, Expect Fireworks, HOUSTON CHRON., Oct. 20, 2007, at Al ("In 2005, 20th Century Fox TV shot a television pilot based on Siegler's life.").
184. Peggy O'Hare, Siegler Resigns From DA's Office, She Will Try Capital Murder Case in Wharton County Later This Year, HOUSTON CHRON., May 10, 2008, at B1.
185. See id. (pointing out that Siegler accepted the Wharton County position despite having "between five and 10" job offers from civil law firms and other district attorneys' offices).
186. See id. ("Siegler is looking forward to working as a special prosecutor, trying a capital murder case in Wharton County this fall.").
187. See U.S. CENSUS BUREAU, STATE AND COUNTY QUICK FACTS: WHARTON COUNTY, TEXAS, http://quickfacts.census.gov/qfd/states/48/48481.html (last visited Jan. 31, 2010).
188. Scott Phillips, Racial Disparities in the Capital of Capital Punishment, 45 HOUSTON L. REV. 807, 838 (2008).
189. See Peggy O'Hare, Game Warden Slaying: Wharton Residents Assemble for Trial: Death Penalty Case Is the First in This Small Town in Three Decades, HOUSTON CHRON., Sept. 9, 2008, at B1 (stating that Freeman's trial is the first death penalty trial to occur in Wharton since the 1970s).
190. See Peggy O'Hare, Murder Trial in Death of Warden Begins: Death Penalty Case is the First in Decades in Wharton County, HOUSTON CHRON., Oct. 20, 2008, at B1 ("I believe that someone who kills a cop is just a little more culpable than, say, some thug who, in the heat of an armed robbery, kills someone.");
191. see also Brandon L. Leonard, 600 Summoned for Capital Murder Case, VICTORIA ADVOC, Sept. 9, 2008, at 1 ("He is charged with capital murder in the shooting death of game warden Justin Hurst, 34.").
192. See Brian Rogers, Former Harris Prosecutor to Testify About Confession, HOUSTON CHRON., Sept. 20, 2008 (describing Schneider as a "a prominent defense attorney").
193. Rose Nisker, The Crusaders of Death Row, TEXAS SUPER LAWYERS, Oct. 2009, available at http://www.superlawyers.com/texas/article/The-Crusaders-of-Death- Row/aa6f34b2-8696-4974-840b-4015ca4bed47.html.
194. See Rosanna Ruiz & Mike Toison, Capital Punishment on Decline in County, HOUSTON CHRON., July 25, 2007, at Al (stating that Schneider "has been involved in death penalty cases for three decades").
195. Sonny Long, Unanimous Death Sentence: Wharton County Jury Gives Game Warden's Killer the Ultimate Penalty, VICTORIA ADVOC, Nov. 8, 2008, at Al.
196. Additionally, if a state had recently enacted the death penalty or has rarely sought it in previous years, no prosecutor would have experience in five or more cases. For these states, the experience requirement would have to be modified.
197. By "successful," I mean a complaint resulting in a finding that the prosecutor has engaged in misconduct. This will likely not be much of a qualifier because successful ethics complaints are rare even against misbehaving prosecutors.
198. See Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. REV. 693, 697 (1987) (claiming that despite universal adoption by the states of disciplinary rules, and despite numerous reported cases showing violations of these rules, "disciplinary charges have been brought infrequently and meaningful sanctions rarely applied").
199. Unfortunately, there are dozens of capital cases that have been reversed for these types of misconduct. See Adam M. Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct, 42 U.C. DAVIS L. REV. 1059, 1075-84 (2009) (discussing some of the twenty-six Brady violations and fifteen Batson violations that led to reversals of capital convictions between 1997 and 2007).
200. LIEBMAN ET AL., supra note 8, at 8.
201. A 75 percent success rate would actually be quite impressive. See id. (finding a 68 percent reversal rate for capital cases between 1973 and 1995).
202. For a discussion of one state's approach to surveying opinions of judicial candidates, see A. John Pelander, Judicial Performance Review in Arizona: Goals, Practical Effects, and Concerns, 30 ARIZ. ST. L.J. 643, 655-61 (1998).
203. This rule should operate reciprocally when selecting statewide defense lawyers. If a majority of prosecutors or judges rates a defense lawyer as unqualified, she should be eliminated from consideration.
204. In smaller states, of course, there will be only one federal district from which to choose.
205. Of course, it is possible that the Attorney General will select candidates who mirror his ideological view of the death penalty, rather than choosing solely based on qualifications. See Jonathan DeMay, A District Attorney's Decision Whether to Seek the Death Penalty: Toward an Improved Process, 26 FORDHAM URB. L.J. 767, 771, 802 (1999) (arguing for a committee, rather than a single district attorney, to determine who should face the death penalty, but recognizing that "[t]he composition of the death penalty committee is likely to reflect the views espoused by the individuals who select members"). This problem is tempered by the fact that the Attorney General can only select prosecutors who have already met the seniority, experience, ethics, and low reversal qualifications.
206. As with the initial group of prosecutors, junior prosecutors should come from each of the state's federal districts and at least one should come from a county with a population of less than 250,000 people.
207. Unfortunately, the ineffectiveness criterion does not serve as much of a limitation because, while ineffective assistance challenges are often filed, they are rarely successful. See, e.g., Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 UTAH L. REV. 1, 1 (discussing the infrequency with which courts reverse convictions based on ineffective assistance of counsel and arguing for prospective means of improving assistance of counsel).
208. See supra note 128 (discussing capital punishment reform in Illinois).
209. See Hayler, supra note 128, at 435 (discussing reforms to the Illinois death penalty system).
210. For instance, all observers appear to believe that indigent defense in Texas has improved substantially since the enactment of the Texas Fair Defense Act in 2001.
211. See Kyung M. Lee, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 AM. J. CRIM. L. 367, 386 (2004) ("As reformers in Texas have been diligently working to change the system since 2001, the results so far have been promising, including some improvements in attorney selection procedures and attorney qualification requirements.").
212. In Harris County, Texas, where the author resides, there is anecdotal (though no empirical) evidence to support this proposition. Cf. George C. Thomas, III, When Lawyers Fail Innocent Defendants: Exorcising the Ghosts that Haunt the Criminal Justice Systems, 2008 UTAH L. REV. 25, 43 ("During my small-town law practice, the representation of criminal defendants by appointed counsel, that sometimes included me, was competent if not stellar.").
213. See Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980) (recognizing that ineffective assistance of counsel claims can be made against privately retained lawyers).
214. Scholars estimate the reversal rate for ordinary criminal cases to be between 10 and 20 percent, which is obviously far below the capital reversal rate.
215. See Marc M. Arkin, Rethinking the Constitutional Right to a Criminal Appeal, 39 UCLA L. REV. 503, 516 (1992) (reviewing California cases and estimating that "approximately one criminal conviction in five was modified by the appellate process");
216. Liebman, supra note 92, at 2053 n.90 (estimating that non-capital reversal rate is "probably far less than ten percent").
217. See Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 401-04 (2007) (challenging conventional wisdom that judges fear reversal and arguing that higher reversal rates do not necessarily inhibit promotion to higher judicial positions).
218. The Illinois Supreme Court has issued a rule requiring all judges presiding over capital cases to attend a capital litigation training seminar at least once every two years.
219. See ILL. SUP. CT. R. 43. This has resulted in hundreds of judges attending death penalty seminars.
220. Toomin, supra note 128, at 644. According to the Chair of the Illinois General Assembly's Capital Punishment Reform Committee, the training, along with other reform efforts, has established a situation in which "judges now assigned to try capital cases have the requisite knowledge and experience."
221. Sullivan, supra note 128, at 957. Once again, I believe this is a step in the right direction but it does not go far enough. Rather than training a large number of judges and hoping they do a good job, it would be preferable to put all of a state's capital cases in the hands of a much smaller number of elite trial judges who can be trained more thoroughly and carefully monitored.
222. See COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES M-4(b) (Am. Arbitration Ass'n), available at http://www.adr.org/sp.asp?id=22440%20 ("If the parties are unable to agree upon a mediator, each party shall strike unacceptable names from the list, number the remaining names in order of preference, and return the list to the AAA.").
223. The most prominent is the Department of Justice's Capital Case Review Committee, which advises the U.S. Attorney General.
224. See Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 FORDHAM URB. L.J. 347, 407-40 (1999) (detailing the Department of Justice's process for deciding how to prosecute potentially capital cases).
225. For a discussion of U.S. Attorneys turning to a voluntary committee before referring the case to the Justice Department, see Benjamin Weiser, Pondering Death, by Committee: What Is a Capital Crime? Federal Panel Decides Case by Case, N.Y. TIMES, June 26, 1997, at B1.
226. Other observers have advocated that capital charging be done by committees rather than individual prosecutors. The most detailed proposals are DeMay, supra note 150, at 811-18 (proposing two solutions: (1) that a committee of experienced and ideologically diverse prosecutors review all potentially capital cases in order to make a non-binding recommendation on whether to seek the death penalty; and (2) a statewide committee made up of prosecutors from across the state that will make binding determinations on whether to seek death) and Horowitz, supra note 28, at 2573, 2600-02 (arguing for a committee appointed by the governor and the local district attorney to eliminate conflicts between state and local officials in jurisdictions that allow for supersedure).
227. For other proposals, see Anna-Liisa Joseloff, Connecticut's Capital Punishment Scheme: Still Tinkering With the Machinery of Death, 23 QUINNIPIAC L. REV. 889, 924 (2004) (advocating that a committee of the state's attorneys be statutorily empowered to determine whether to seek the death penalty);
228. McCarthy, supra note 61, at 995 (suggesting that the state attorney general review every death eligible case);
229. Paul Schoeman, Note, Easing the Fear of Too Much Justice: A Compromise Proposal to Revise the Racial Justice Act, 30 HARV. C.R.-C.L. L. REV. 543, 573 (1995) (suggesting an independent central authority that would require super majority vote to seek death). Finally, the Illinois Commission on Capital Punishment has proposed that a committee of five individuals-the Attorney General, the Cook County State's Attorney, another county's State's Attorney, the president of the Illinois State's Attorneys Association, and a retired judge-approve a local prosecutor's request to seek the death penalty.
230. See GOVERNOR'S COMM'N ON CAPITAL PUNISHMENT, REPORT OF THE GOVERNOR'S COMM'N ON CAPITAL PUNISHMENT 84-85, Recommendation 30 (2002), available at http://www.idoc.state.il.us/ccp/ccp/reports/commission -report/index.html. The Illinois legislature did not adopt this proposal.
231. Thomas P. Sullivan, Capital Punishment Reform: What's Been Done and What Remains to Be Done, 51 FED. LAW. 37, 39 (2004). While these proposals have all recognized the benefits of capital charging, none would require the same prosecutors to actually try the cases and thereby eliminate county involvement altogether.
232. Federal cases are handled in a somewhat similar fashion. Whenever a federal grand jury indicts a capital crime and the U.S Attorney intends to seek the death penalty, the U.S. Attorney is required to notify the Department of Justice in writing.
233. See Little, supra note 162, at 409-10 (detailing the Department of Justice's process for deciding how to prosecute potentially capital cases).
234. See id. at 424-26 (noting that while he served on the Department of Justice's capital committee defense counsel always invoked their right to make a presentation to the committee and that such presentations were effective);
235. see also DeMay, supra note 150, at 810 (proposing that prosecutors should provide defense counsel with "an opportunity to present arguments why the defendant is not an appropriate candidate for the imposition of the death penalty");
236. Liebman, supra note 92, at 2145 (proposing that prosecutors should provide all defense counsel with "a meaningful opportunity to convince the district attorney to settle the case or at least not to proceed capitally").
237. In some instances, it may also be necessary to redact the name of the defendant or victim if that name would indicate that the person is a member of a particular racial or ethnic group.
238. . See Little, supra note 162, at 411-12 (noting that federal cases are presented to the Attorney General " 'race-blind,' that is, devoid so far as possible of racial identification"). To the extent that a defendant is accused of a hate crime, it would make little sense to keep that information from the final decisionmakers, however.
239. Of course, state prosecutors could also face funding pressures. At the statewide level, however, resources are not as scarce as they are at the local level.
240. The Supreme Court has held that post-trial proportionality review is not required.
241. See Pulley v. Harris, 465 U.S. 37, 49-51 (1984) (discussing Supreme Court precedent holding that proportionality review is not required). Nevertheless, about half of the states that impose the death penalty still provide for at least some level of proportionality review.
242. See Maxine D. Goodman, A Death Penalty Wake-Up Call: Reducing the Risk of Racial Discrimination in Capital Punishment, 12 BERKELEY J. CRIM. L. 29, 44 n.114 (2007) (listing states that do and do not provide for proportionality review).
243. See supra note 162 and accompanying text.
244. Little, supra note 162, at 412.
245. For instance, recent Attorney General Alberto Gonzales, while having a wide variety of legal experience, never served as a prosecutor before becoming Attorney General and having final say over capital charging.
246. See Jason McLure, Staying the Course: The AG Hasn't Satisfied Critics Who Doubt His Independence, LEGAL TIMES, Feb. 27, 2006, at 1.
247. See Little, supra note 162, at 417-18 ("Under the protocols, United States Attorneys in the field may dispose of federal capital cases, once charged, without advance approval or review by the Attorney General or Main Justice.").
248. See Editorial, Regional Public Defender's Office Has Worked Well, LUBBOCK AVALANCHE-J., Dec. 10, 2008 (describing the West Texas Regional Public Defender Office that was created with the support of sixty-five counties and noting that the office has been a success "[b]ecause the sole focus is capital cases, [and] the staff is able to get to work immediately on a case and spend a lot of time preparing for it").
249. See Kenneth Bresler, Seeking Justice, Seeking Election, and Seeking the Death Penalty: The Ethics of Prosecutorial Candidates' Campaigning on Capital Convictions, 7 GEO. J. LEGAL ETHICS 941, 945-46 (1994) (discussing how some elected district attorneys highlight capital convictions in their campaign literature);
250. Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. REV. 125,155 (2004) (same).
251. John R. Kroger, Remarks: Enron and Multi-Jurisdictional Fraud, 28 CARDOZO L. REV. 1657, 1660 (2007) (explaining that the Enron Task Force "grabbed prosecutors from all over the country-Chicago, Boston, Orange County, New York, San Francisco"). In the Enron case the nationwide task force model was troublesome because prosecutors were asked to temporarily relocate across the country, not to permanently take up a new job for a long period of time. This led to frequent turnover.
252. Id. This approach can be avoided at the statewide level because lawyers will be taking permanent or at least long-term positions.
253. Oregon Department of Justice, Biography of Attorney General John Kroger, http://www.doj.state.or.us/ag-bio.shtml (last visited Jan. 31, 2010).
254. Mary Flood, Task Force Enjoys Post-Enron Success, HOUSTON CHRON., June 2, 2008, at 1.
255. The FBI's website explains that "all Special Agents are subject to transfer at any time to meet the organizational and program needs of the FBI. Special Agents accept the possibility of transfer as a condition of their employment." Federal Bureau of Investigations, Special Agent Career Path Program, http://www.fbijobs.gov/113.asp (last visited Jan. 31, 2010);
256. see also KURT EICHENWALD, THE INFORMANT 32-33 (2000) (detailing the inner workings of the FBI's investigation of Archer Daniels Midland and discussing how some of the key agents had relocated from across the country).
257. See Stephanos Bibas, Rewarding Prosecutors for Performance, 6 OHIO ST. J. CRIM. L. 441, 442 (2009) (arguing for financial rewards to "attract and retain the best candidates and also encourage those who are already prosecutors to perform better");
258. Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct With Financial Incentives, 64 FORDHAM L. REV. 851, 879 (1995) ("Significant evidence indicates that the behavior of prosecutors could be affected by financial incentives.").
259. See James S. Liebman, Opting for Real Death Penalty Reform, 63 OHIO ST. L.J. 315, 328, 337 (2002) (recognizing inadequate compensation of capital defense attorneys as a limiting factor in the quality of representation in capital cases and advocating parity between defense and prosecution resources).
260. See infra notes 223-227 and accompanying text.
261. See Darryl K. Brown, Rationing Criminal Defense Entitlements: An Argument From Institutional Design, 104 COLUM. L. REV. 801, 809 (2004) ("Many public services are underfunded, including foster care, medical care, indigent defense, and public schools.").
262. See James R. Acker, Be Careful What You Ask For: Lessons from New York's Recent Experience with Capital Punishment, 32 VT. L. REV. 683, 719 n.155 (2008) (citing testimony of various criminal justice experts on other uses for funds currently spent on death penalty cases).
263. Indeed, costs have been a major reason why states have recently considered abolishing the death penalty. See Ian Urbina, In Push to End Death Penalty, Some States Cite Cost-Cutting, N.Y. TIMES, Feb. 25, 2009, at Al (discussing legislative efforts to repeal the death penalty in Maryland, Colorado, Kansas, Nebraska, and New Hampshire in part based on the economic expense of capital cases). Costs played a role in New Jersey's recent abolition of the death penalty.
264. See NEW JERSEY DEATH PENALTY STUDY COMMISSION REPORT 31-34 (2007), available at www.njleg.state.nj.us/committees/dpsc-final.pdf (recommending abolition in large part based on the costs);
265. Jeremy W. Peters, Corzine Signs Bill Ending Executions, then Commutes Sentences of 8, N.Y. TIMES, Dec. 18, 2007, at B3 (discussing New Jersey's abolition of the death penalty). In tight fiscal times, it is hard to imagine states volunteering to spend huge sums of additional money.
266. Gershowitz, supra note 15, at 864.
267. See JOHN ROMAN ET AL., URBAN INST. JUSTICE POLICY CTR., THE COST OF THE DEATH PENALTY IN MARYLAND 2 (2008), available at http://www.urban.org/ publications/411625.html (finding that a Maryland death penalty case cost $1.9 million more than a non-death case and that about 30 percent of the added cost is attributable to post-trial costs).
268. Cone v. Bell, 129 S. Ct. 1769,1772 (2009).
269. Robert Barnes, Justices Question Withholding of Evidence in Capital Case, WASH. POST, Dec. 10, 2008, at A2.
270. Adam Liptak, Justices Weigh Misconduct in Tennessee Murder Case, N.Y. TIMES, Dec. 10, 2008, at A26.
271. Id.
272. Id.
273. Id.
274. Professor Liebman's study from 1973-1995 found a 68 percent reversal rate. LIEBMAN ET AL., supra note 8, at 8. Given the difficulty of prevailing under the Anti-Terrorism and Effective Death Penalty Act and a more conservative federal judiciary, the reversal rate is likely considerably lower today.
275. See Joseph L. Hoffman, Violence and the Truth, 76 IND. L.J. 939, 946 (2001) (criticizing the Liebman study for assuming a constant error rate over time which "is not a safe assumption, especially in federal habeas, where reversal rates have been dropping as the U.S. Supreme Court's Eighth Amendment law has gradually begun to stabilize").
276. On the increasing difficulty of prevailing under the AEDPA, see John H. Blume, AEDPA- The "Hype" and the "Bite,"91 CORNELLL. REV. 259, 284 (2006).
277. See, e.g., Lise Olsen, State Fund Doesn't Provide Much Relief from Case Costs; Despite Promises, State Fund Doesn't Provide Much Relief from Case Expenses, SEATTLE POST INTELLIGENCER, Aug. 8, 2001, at A8 ("In a single resentencing last year, Thurston County spent $1.1 million as it attempted to put double-killer Mitchell Rupe back on death row nineteen years after his original conviction.").
278. See Gershowitz, supra note 15, at 877 ("Under the current system, prosecutors who procure death sentences are rewarded with good publicity, promotions, and perhaps even with judicial office. By contrast, those same prosecutors suffer little stigma when death sentences are reversed on appeal because many years have gone by... and the public's attention has moved on to new death penalty cases.").
279. Of course, state prosecutors will still have to defend a non-death verdict on appeal. However, such cases will be cheaper to defend because, unlike death-penalty cases, non-death cases typically do not carry a right of automatic appeal to the state supreme court and the lack of a death sentence will remove numerous legal issues that otherwise would have been litigated.
280. See ROMAN ET AL., supra note 187, at 25 (finding in a 2008 study of Maryland that cases resulting in a death sentence cost hundreds of thousands of dollars more at the state appellate level than cases where death was not sought).
281. See Johnson, supra note 17, at 1108 n.5 ("The three most common species of claims in capital cases are ineffective assistance of counsel claims, Batson claims, and Brady claims.").
282. Brady v. Maryland, 373 U.S. 83, 87 (1963).
283. See United States v. Bagley, 473 U.S. 667, 682 (1985) ("The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.").
284. Gershowitz, supra note 144, at 1061-62.
285. See Belmontes v. Brown, 414 F.3d 1094, 1111-15 (9th Cir. 2005) (discussing how prosecutor failed to disclose that state witness in a capital case had several traffic charges that prosecutor helped to resolve but that were not material for Brady purposes).
286. Brady, 373 U.S. at 87.
287. RICHARD P. GUY, STATUS REPORT ON THE DEATH PENALTY IN WASHINGTON STATE 10 (2000), available at http://www.courts.wa.gov/newsinfo/content/deathpenalty/ deathpenalty.pdf.
288. Id.
289. Id. at 11 ("Washington Supreme Court review not infrequently results in additional trial level hearings in the county where the case originated.").
290. See United States v. Bagley, 473 U.S. 667, 682 (1985) (clarifying the materiality standard);
291. Elizabeth Napier Dewar, Note, A Fair Trial Remedy for Brady Violations, 115 YALE L.J. 1450, 1455 (2006) (noting that Brady violations are rarely identified and that "even when [prisoners] do their convictions are rarely overturned because they face a tremendous burden on appeal").
292. See Liebman, supra note 181, at 339 (recognizing that procedural roadblocks to habeas review add litigation time and that reducing litigation would best be accomplished "by eliminating altogether the most frequently litigated habeas claims"). Professor Liebman has proposed that states ensure improved trial and direct appellate review in exchange for death row prisoners foregoing substantial amounts of habeas review.
293. Id. at 334. To date, states have not embraced this very logical proposal.
294. No case is perfect. By "cleaner," I mean a trial that leaves open far fewer grounds for a defendant's appeal.
295. See, e.g., Caudill v. Commonwealth, 120 S.W.3d 635, 659-60 (Ky. 2003) (concluding in a death penalty case that the trial court admitted inappropriate character evidence but that it was harmless).
296. See State v. Glass, 136 S.W.3d 496, 519 (Mo. 2004) (considering in capital case whether excluded letter from defendant's grandmother amounted to mitigating evidence, but finding that it was cumulative and therefore harmless);
297. Doorbal v. State, 837 So. 2d 940, 959-60 (Fla. 2003) (concluding that the trial court should have admitted letters showing co-defendant's domination over the defendant but finding that the error was harmless because it could not outweigh the five aggravating factors, including that the murder was committed in a cold, calculated, and premeditated fashion).
298. See Williams v. State, 188 P.3d 208, 230 (Okla. Crim. App. 2008) (concluding that prosecutor's argument to jury that they would devalue victim's life by giving less than a death sentence was improper but nevertheless harmless error);
299. Merck v. State, 975 So. 2d 1054, 1062 (Fla. 2007) (finding that the prosecutor's improper argument that the jury should give the defendant the same mercy that defendant showed to the victim was harmless error);
300. Duncan v. State, No. 05-00-01773-CR, 2002 WL 1611848, at *2 (Tex. App. July 23, 2002) (finding that multiple inappropriate references to defendant's parole eligibility if he did not receive a death sentence was harmless error).
301. See Margaret A. Berger, When, If Ever, Does Evidentiary Error Constitute Reversible Error, 25 LOY. L.A. L. REV. 893, 894-95 (1992) (concluding that reversal for evidentiary reasons is rare).
302. MODEL RULES OF PROF'L CONDUCT R. 3.1 (2008) ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous ....").
303. See Brent E. Newton, Almendarez-Torres and the Anders Ethical Dilemma, 45 HOUSTON L. REV. 747, 748 n.3 (2008) (collecting cases in which appellate counsel were sanctioned for filing frivolous claims).
304. See A.C. Pritchard, Auctioning Justice: Legal and Market Mechanisms for Allocating Criminal Appellate Counsel, 34 AM. CRIM. L. REV. 1161, 1168 (1997) ("The onslaught of frivolous appeals unleashed by Anders has driven the courts to a system of judicial triage. Confronted with ever-increasing numbers of appeals, courts have adopted screening mechanisms to sort out cases warranting close judicial attention from those appropriate for summary rejection.").
305. Anders v. California, 386 U.S. 738, 744 (1967) (providing that counsel must file a brief stating that she has reviewed the record carefully and identify the legal issues she believes are frivolous but that an appellate court might determine to be non-frivolous before the attorney will be permitted to withdraw as counsel on direct appeal);
306. see Newton, supra note 215, at 757 (explaining that "the federal courts of appeals have continued to require Aradera-type 'no merit' briefs in federal appeals").
307. Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 114 (2008) ("Studies of postconviction filings show that ineffective assistance of counsel is the most commonly raised claim during appeals.").
308. I am in agreement with critics who maintain that it is too difficult to demonstrate a successful ineffective assistance of counsel claim and that the standard should be changed. See, e.g., Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 J. CRIM. L. & CRIMINOLOGY 242, 243 (1997) ("The courts should broaden their focus to concentrate on the fairness of the proceedings rather than the absence of identifiable errors by defense counsel.").
309. See Note, Gideon's Promise Unfulfilled: The Need for Litigated Reform of Indigent Defense, 113 HARV. L. REV. 2062, 2068 (2000) ("It is thus exceedingly difficult to win a claim under the standard established in Strickland.").
310. See Poindexter v. Mitchell, 454 F.3d 564, 588 (6th Cir. 2006) (Boggs, C.J., concurring) ("If counsel provides fully-effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever.").
311. For an analysis of whether sandbagging would be good strategy, see Kyle Graham, Tactical Ineffective Assistance in Capital Trials, 57 AM. U. L. REV. 1645, 1675-80 (2008).
312. See discussion supra Part II.B.2 (discussing proposed qualifications for capital defense lawyers).
313. Vick, supra note 112, at 394.
314. GUY, supra note 204, at 8.
315. See WASHINGTON DEATH PENALTY ASSISTANCE CTR., WASHINGTON'S DEATH PENALTY SYSTEM: A REVIEW OF THE COSTS, LENGTH AND RESULTS OF CAPITAL CASES IN WASHINGTON STATE 11, 13 (2004) (explaining that a substantial amount of state money has ended up being sent to large counties and to non-death penalty cases);
316. Olsen, supro note 195 ("In the first year of the program, counties asked for $4.5 million; the Legislature has set aside only $550,000.");
317. Report: State Rarely Aids Counties With Murder-Case Costs: 3 Out of 4 Requests Denied; Defendants' Legal Bills Usually Paid By Public, SEATTLE TIMES, Oct. 16, 2006, at B2 (explaining that only one county received assistance and only a fraction of what it requested).
318. Darryl K. Brown, Rationing Criminal Defense Entitlements: An Argument From Institutional Design, 104 COLUM. L. REV. 801, 815 (2004);
319. see also Editorial, The Cost to Execute, EVANSVILLE COURIER & PRESS, Oct. 18, 2006, at A10 ("Counties can be reimbursed for up to 50 percent of costs.").
320. Hayler, supra note 128, at 435-36.
321. By contrast, if the county recommended against seeking death and the statewide prosecutors chose to do so anyway, the county's obligation could be dropped to 10 percent of the trial costs. From a financial perspective, counties therefore would have an incentive to oppose capital charges. Yet, they could not do so vocally because it would be politically unpalatable to be on record opposing the death penalty in gruesome cases.
322. See generally DAVID R. DOW, EXECUTED ON A TECHNICALITY: LETHAL INJUSTICE ON AMERICA'S DEATH ROW (2005) (chronicling the systemic problems with capital punishment);
323. Carol S. Steiker & Jordan M. Steiker, Softer Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 359 (1995) (questioning why the Supreme Court's regulation of capital punishment has been "so messy and so meaningless").
324. See Liebman, supra note 92, at 2136 ("Most proposals for curing [the ills of capital punishment] are doomed to make it worse. Typically, those proposals aim merely to treat one or another procedural symptom at either the stern or the stem, without attacking the disease itself (the skewed incentive system) or its principal substantive symptom (the overproduction of death).").
325. See Stephen F. Smith, The Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 285 (2008) (explaining how the Court's capital punishment jurisprudence allowed the death penalty to become highly politicized).
326. See Douglas A. Berman, Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 HARV. L. & POL'Y REV. ONLINE 1, 12 (2008) (noting that legal reformers' "advocacy is likely to grate on those not categorically opposed to the punishment of death").
327. See Liebman, supra note 181, at 328 (recognizing inadequate compensation of capital defense attorneys as a limiting factor in the quality of representation in capital cases).
328. See Little, supra note 162, at 412 (describing how, in federal death-penalty cases, the Justice Department "self-consciously eliminates racial information from the Attorney General's review process").
329. See Stephen B. Bright, Death by Lottery-Procedural Bar of Constitutional Claims in Capital Cases Due to Inadequate Representation of Indigent Defendants, 92 W. VA. L. REV. 679, 685 (1990) ("In practice, however, the system for imposing capital punishment is most often a game of chance in which the winners and losers are distinguished not by their criminal and moral culpability, but by the luck of the lawyers they draw.").
330. See Craig Haney, Exoneration and Wrongful Condemnations: Expanding the Zone of Perceived Injustice in Death Penalty Cases, 37 GOLDEN GATE U. L. REV. 131, 163 (2006) (arguing that "too many defense attorneys lack the kind of training and professional experience that is needed to find and develop th[e] humanizing testimony" that is necessary to separate the truly death-worthy).
331. Id. at 164 ("[D]efense attorneys in many jurisdictions are overmatched and outspent by experienced prosecutors who have the state's considerable resources at their disposal. This disparity in resources increases the likelihood that wrongful condemnations will occur in death penalty cases.").
332. As Professor David Dow has argued, the issue of innocence in death penalty cases often distracts courts and observers from the numerous other problems with the system that deny defendants a fair trial. David R. Dow, Death By Good Intentions, WASH. POST, Oct. 15, 2006, at B7.
333. See Michael Hall, Death Isn't Fair, TEX. MONTHLY, Dec. 2002, at 122 (noting that district attorneys consider "how much publicity the case is getting" in deciding whether or not to seek the death penalty).
334. See Samuel R. Gross, The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases, 44 BUFF. L. REV. 469, 475 (1996) ("Erroneous convictions . . . may occur disproportionately often in capital cases for two types of reasons: (1) Because of factors that are common or inevitable in capital prosecutions, but that occur in other cases as well-for instance, the fact that the crime involves homicide, or that it was heavily publicized; (2) Because of consequences that flow from the demand for the death penalty itself.").
335. Id. at 496 ("Other things being equal, higher quality representation will decrease the likelihood of conviction, and may operate as a check on errors and misconduct that drive some innocent capital defendants to trial and to conviction.").
336. See supra notes 218-222 and accompanying text.
337. See supra notes 199-213 and accompanying text.
338. See supra notes 195-197 and accompanying text.
339. See Daniel S. Medwed, Innocentrism, 2008 U. ILL. L. REV. 1549, 1557 (2008) (recognizing that stories of exonerations "convey a mixed message to the American public [and] demonstrate that the system is flawed - that the police occasionally arrest the wrong people, that prosecutors charge them with crimes, and that judges and juries fail them" but also lead some to argue that "the post-conviction process serves an effective corrective function").
340. Vivian Berger, The Chiropractor as Brain Surgeon: Defense Lawyering in Capital Cases, 18 N.Y.U. REV. L. & SOC CHANGE 245, 254 (1990-1991)
341. (citing Minority Report of Stephen B. Bright, in TOWARD A MORE JUST AND EFFECTIVE SYSTEM OF REVIEW IN STATE DEATH PENALTY CASES: RECOMMENDATIONS AND REPORT OF THE ABA TASK FORCE ON DEATH PENALTY HABEAS CORPUS app. at A-46 (1989)).