As noted in the News Scan today, USA Today has an article on proposals "broadening the death penalty," supposedly "countering a national trend toward scaling back its use." Doug Berman at SL&P has this post lumping all proposals together and condemning them as "symbolic politics, not serious policy-making," without any examination of the merits of individual proposals. Actually, the proposals vary widely in their merit.
The purpose of the reforms that followed Furman v. Georgia was to make the death penalty less arbitrary and more proportioned to the offense and the offender. Too much discretion and too little guidance heightened the risk that the decision would turn on illegitimate factors, especially race of the defendant. In the years since, the Supreme Court has boiled this down to two main requirements: narrowing the class eligible to be considered for the death penalty followed by a discretionary decision on whether to actually so sentence a defendant found eligible after considering individual circumstances.
Fairness and arbitrariness necessarily work in both directions. A fair system neither arbitrarily sentences a person to death for a crime nearly everyone else would get life for, nor does it arbitrarily yield a life sentence for a crime that clearly warrants death. Proposals to change the definition of the eligible class or to revise the discretionary decision-making process should be judged on whether they make the system fairer in both directions, not on a reflexive basis of "expansion is bad, contraction is good" or vice-versa.
Topping the fairness-enhancing reforms is the proposal to get rid of Virginia's "triggerman" rule. As vividly illustrated by John Allen Muhammad, the lead D.C. sniper, a person who manipulates another to commit murder for him is more culpable, not less, than a person who does the deed himself. Yet absent an exception, Virginia law could result in sentencing the puppet to death while sparing the puppeteer. Muhammad's case qualified for the terrorism exception, but a future manipulator might not.
Next up on the good ideas list is the proposal in Georgia to scrap the single-juror veto of the death penalty. The optimum way to deal with jury unanimity in the penalty phase is to treat it just like the guilt phase. The jury must deliberate until unanimous one way or the other. If they are truly deadlocked, it is a mistrial, and the penalty phase is retried. That is how it is done in California. However, some jurisdictions may deem that too expensive. Far too many jurisdictions have a single-juror veto, where a jury deadlock at 11 to 1 for death results in the view of the one as to the proper sentence prevailing over the view of the eleven. This results in the arbitrary granting of life sentences to murderers who thoroughly deserve death if they are lucky enough to get a hard-core opponent on their jury, possibly by lying on voir dire. The second best way is the Florida system, where the jury can make a recommendation on penalty without being unanimous, and the judge makes the final decision. The Georgia bill would allow this on a 9-3 vote of the jury.
In the mid range are proposals that create new definitions of death-eligible offenses but will not expand actual sentences much, because the crimes they define rarely happen or because most of the crimes in question are already capital under other provisions. Proposals for eligibility criteria such as killing a judge fall in the first group and those for killing a child fall in the second.
A thoroughly bad idea is legislation for a mandatory death sentence. The USA Today story indicates that the Governor of Missouri contends that his proposal would take mitigating circumstances into account, thereby addressing the constitutional problem, but it is hard to see how that is possible if it is actually a mandatory sentence. Political capital should not be squandered on proposals that will never be carried out in practice. It is better to deal with the genuine issues of reforming procedure so that the current law is made effective.
Finally, there is the horrifically bad idea of a death penalty for sex crimes in which the victim survives. I do not dispute that anyone who would rape a child deserves death as a matter of just deserts, but for the child's sake we must maintain a differential in punishment between rape and rape-murder. A rapist has a powerful incentive to kill the victim to reduce his chance of capture and conviction. We need to give him a powerful incentive not to. That is why rape-murder should be capital and rape alone should not, no matter how heinous.