Lauren's blog scan today notes an article by Jules Epstein proposing a "metric" for prosecutors' decision to seek the death penalty. In the article, we find that he is not actually proposed an objective measurement, as one might think from the term "metric." His main point seems to be that prosecutors should assess the "deathworthiness" of the case as the main issue in deciding whether to seek the death penalty. Well, that is largely what most offices have been doing the whole time.
Epstein criticizes a couple of counties where, for a time, district
attorneys were seeking the death penalty in every case meeting the
state's minimum death-eligibility criteria. Yes, that's wrong, but I
don't think anyone is doing that today. Nobody can afford it.
Then he goes through the "geographic disparity" argument. Even embracing "deathworthiness" as the criterion, different counties are going to elect DAs with different ideas about what is "deathworthy." That is not a problem; that is local democracy.
In the race section, Epstein goes completely off the rails. He cites the notorious Baldus study in Georgia as if it were valid. Apparently he is unaware that the district court found as a matter of fact that the Baldus study is complete garbage. See McCleskey v. Zant, 580 F.Supp. 338 (ND Ga. 1984). (Actually, it says Baldus fails to contribute anything of value, a gentlemanly way of saying "complete garbage.") He also selectively quotes the Paternoster study in Maryland, emphasizing one strained conclusion about cross-racial murders while glossing over the much more important findings of no race-of-defendant bias and no statistically significant race-of-victim effect once jurisdiction is controlled. He cites Baldus again for New Jersey, ignoring the contrary findings of the special master, Judge Baime.
If you read these studies by skipping the rhetoric and going to the hard facts, the most important finding is that the post-Furman reforms have been remarkably successful in reducing the most important racial effect, race-of-defendant bias, down to a level so low as to be undetectable. That is a great accomplishment, and it should be celebrated. The notion that racism is pervasive in prosecutors' capital charging decisions in America is baloney. For more on race and the death penalty, see this article.
In the abstract, Epstein says:
These three objections don't appear to me to have much weight. First, take mitigation. The prosecutor is already aware of the strongest mitigating circumstances, such as a minor role in the crime and lack of a prior criminal record. The mitigation developed by defense counsel is typically "bad childhood" evidence. Here we have a fundamental disagreement as to what constitutes weighty mitigation. Most folks on the defense side seem to think that "bad childhood" evidence is strongly mitigating. Most capital case prosecutors I know share my view that it has very minimal weight. The head of capital cases for the LA Public Defender testified a while back that in his experience presenting the "background" mitigation has little effect on the DAs decision to seek the death penalty.
On youth, Epstein cites the blather from the ABA brief in Roper on undeveloped brains. Well, Roper exempts everyone under 18, and by 18 cognitive capacities are developed more than enough to assist counsel. The controversy over impulsivity is not relevant here. Assisting counsel or choosing not to after thinking it over in jail for a couple of weeks has nothing to do with impulsivity.
Epstein asserts from his experience that youthful defendants facing the death penalty tend to be uncooperative because they see little difference between death and staying in jail until they are 40 (when, we all knew at 18, actual life ends anyway). I don't find this convincing. Youth is a mitigating circumstance by itself. If the young defendant doesn't cooperate in digging up other mitigation, he typically has living and available parents and siblings, who are often better sources anyway.
Then there are the "powerful victim-survivor constituencies." Oh, if only that were true. Victims' groups are usually poorly funded and sparsely staffed. The only specific powerful group that Epstein mentions is police officers in the case of murders of police officers in the line of duty. But does their influence really cause prosecutors to seek the death penalty in cases that are not actually "death-worthy"? Almost all cop-killings are "death-worthy."
Let me quote again the very end of the abstract. Epstein says, "the result will ensure that capital punishment is visited upon some who are not, by any measure, 'death worthy.'" I have been working capital cases for almost 23 years now. I have yet to work on a single case where a defendant sentenced to death in a discretionary sentencing system was clearly guilty of a capital offense yet "not, by any measure, 'death-worthy.'" Not one.
Prosecutors are already doing a very good job of selecting only death-worthy cases to seek the death penalty. Juries are already rejecting the penalty in the few cases where it is erroneously sought. This part of the system is not broken. It doesn't need to be fixed.
Then he goes through the "geographic disparity" argument. Even embracing "deathworthiness" as the criterion, different counties are going to elect DAs with different ideas about what is "deathworthy." That is not a problem; that is local democracy.
In the race section, Epstein goes completely off the rails. He cites the notorious Baldus study in Georgia as if it were valid. Apparently he is unaware that the district court found as a matter of fact that the Baldus study is complete garbage. See McCleskey v. Zant, 580 F.Supp. 338 (ND Ga. 1984). (Actually, it says Baldus fails to contribute anything of value, a gentlemanly way of saying "complete garbage.") He also selectively quotes the Paternoster study in Maryland, emphasizing one strained conclusion about cross-racial murders while glossing over the much more important findings of no race-of-defendant bias and no statistically significant race-of-victim effect once jurisdiction is controlled. He cites Baldus again for New Jersey, ignoring the contrary findings of the special master, Judge Baime.
If you read these studies by skipping the rhetoric and going to the hard facts, the most important finding is that the post-Furman reforms have been remarkably successful in reducing the most important racial effect, race-of-defendant bias, down to a level so low as to be undetectable. That is a great accomplishment, and it should be celebrated. The notion that racism is pervasive in prosecutors' capital charging decisions in America is baloney. For more on race and the death penalty, see this article.
In the abstract, Epstein says:
Even if a prosecutor's office were to embrace this metric, and conduct pre-trial reviews of defense mitigation evidence to screen out those not 'worthy' of death, three barriers stand in the way of successful implementation of this standard. Counsel often fail to develop mitigation evidence, either due to ineffectiveness or a lack of resources. A defendant's youth may compromise his/her willingness and ability to assist in the mitigation process, and where youth stands as a barrier to expressing remorse may unjustifiably leave a particular defendant in the death-worthy cohort. Finally, the power of victim survivor constituencies, as when the victim is a police officer killed in the line of duty, may bar a well-intentioned prosecutor from declining to seek death even where the individual defendant is not death-worthy. The result will be an over-inclusive charging process in capital cases; and given the variability of juror response (and the persistence of race-based judgments in jury deliberations), the result will ensure that capital punishment is visited upon some who are not, by any measure, "death worthy."
These three objections don't appear to me to have much weight. First, take mitigation. The prosecutor is already aware of the strongest mitigating circumstances, such as a minor role in the crime and lack of a prior criminal record. The mitigation developed by defense counsel is typically "bad childhood" evidence. Here we have a fundamental disagreement as to what constitutes weighty mitigation. Most folks on the defense side seem to think that "bad childhood" evidence is strongly mitigating. Most capital case prosecutors I know share my view that it has very minimal weight. The head of capital cases for the LA Public Defender testified a while back that in his experience presenting the "background" mitigation has little effect on the DAs decision to seek the death penalty.
On youth, Epstein cites the blather from the ABA brief in Roper on undeveloped brains. Well, Roper exempts everyone under 18, and by 18 cognitive capacities are developed more than enough to assist counsel. The controversy over impulsivity is not relevant here. Assisting counsel or choosing not to after thinking it over in jail for a couple of weeks has nothing to do with impulsivity.
Epstein asserts from his experience that youthful defendants facing the death penalty tend to be uncooperative because they see little difference between death and staying in jail until they are 40 (when, we all knew at 18, actual life ends anyway). I don't find this convincing. Youth is a mitigating circumstance by itself. If the young defendant doesn't cooperate in digging up other mitigation, he typically has living and available parents and siblings, who are often better sources anyway.
Then there are the "powerful victim-survivor constituencies." Oh, if only that were true. Victims' groups are usually poorly funded and sparsely staffed. The only specific powerful group that Epstein mentions is police officers in the case of murders of police officers in the line of duty. But does their influence really cause prosecutors to seek the death penalty in cases that are not actually "death-worthy"? Almost all cop-killings are "death-worthy."
Let me quote again the very end of the abstract. Epstein says, "the result will ensure that capital punishment is visited upon some who are not, by any measure, 'death worthy.'" I have been working capital cases for almost 23 years now. I have yet to work on a single case where a defendant sentenced to death in a discretionary sentencing system was clearly guilty of a capital offense yet "not, by any measure, 'death-worthy.'" Not one.
Prosecutors are already doing a very good job of selecting only death-worthy cases to seek the death penalty. Juries are already rejecting the penalty in the few cases where it is erroneously sought. This part of the system is not broken. It doesn't need to be fixed.
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