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Another Judge Calls for Cost Analysis of Death Penalty:  Today, at Sentencing Law and Policy, Doug Berman posts the concurrence of Sixth Circuit Judge Martin in Wiles v. Bagley.  Berman's post focuses on Judge Martin's discussion of the "exceedingly expensive" costs of the death penalty.  While Judge Martin believes that our broken system "would not justify its costs even if it saved money," he does believe that the time has come for an extensive study comparing the costs of the death penalty with its benefits.  One of the studies he cites as a point for comparison is Kent Scheidegger's The Death Penalty and Plea Bargaining to Life Sentences. (Hat tip federalist).

Failure to Provide Defense to Indigents:  At the American Constitution Society, Virginia E. Sloan, President of The Constitution Project, posts on the National Right to Counsel Committee's report on "the crisis in our country's indigent defense system."  The report, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, describes how "funding shortfalls, excessive caseloads, and a host of other problems" are causing our indigent defense structures to fail.  To address this failure the Committee recommends legislation that will provide indigent defense services that are "independent, non-partisan, organized at the state level, adequately funded by the state from general revenues, and overseen by a board or commission.  These state programs will also be supported by federal funds.  This makes me wonder whether too many cooks will make it difficult for indigent defendants to receive the representation the Constitution requires.

International Human Rights Treaties and Domestic Law:  At Bench Memos, Ed Whalen continues his critique of Harold Koh's advocacy of international "'human rights' treaties" and his belief that such treaties are self-executing.  Whalen writes that use of these treaties to regulate the a nation's treatment of its own citizens is contrary to "the basic system of representative government that the Constitution creates."  Whalen believes that Koh is one of the "American transnationalists" urging the United States to adopt international treaties and then hiding behind a treaty's sweeping statement of an unobjectionable principle.  Whalen worries that such a policy, particularly in the hands of the future Legal Advisor to the United States Department of State, will allow activists to rush to courts and ask judges to reinvent what provisions of the Constitution mean.  Jonathan Adler had a related post on Volokh Conspiracy yesterday.

1 Comment

Irony should be evident in the concurring opinion in the Wiles case where the call is made for a cost-benefit analysis of the death penalty, even though the author denies such analysis would change his views of the "broken system." But that is not the irony. The irony is where the concurrence devotes a single sentence to the judicial function of deciding the case, yet pages of gratuitous commentary appropriate for debate only in a state legislature. A not insignificant part of the so-called "broken system" could be instantly fixed by the determination by judges to leave policy making to the legislators, and to confine themselves to the judicial function.

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