One of the recurring themes in Doug Berman’s (incredibly valuable) blog is his concern that capital cases receive too much scrutiny. He doesn’t deny the significance of the sanction, but believes that other sentencing issues – e.g., the new guidelines jurisprudence, the incredible overuse of long-term imprisonment, and the sense that a substantial number of innocent people may be pleading guilty to felonies - are of greater overall importance. (Of course, for all his protestations, Sentencing Law and Policy is a go-to address for news about capital punishment issues.)
I think he raises an important matter, and rather than take issue with him, I’d like to thicken the discussion a bit. Why are capital cases important? A few reasons include: their irreversibility (once the sanction is actually imposed); the gravity of the sanction; the degree to which death penalty policy seems even less teathered to good-government/empirically driven analysis than other sentencing policy (I would take substantial issue with John McGinniss’s claim that empirical data on crime has produced some clear truths about effective responses to crime – check out Dan Markel’s preliminary thoughts here); the degree to which an ongoing desire to empower states to execute twisted broader criminal justice jurisprudence; and the fact that the use of capital punishment has consequences for America’s ability to claim moral authority in many international debates and disputes.
That said, Doug is absolutely correct that far more individuals are devastated by other aspects of American criminal justice policy. Whether the issue is racial or economic justice, the over-use of imprisonment, the over-use of criminal laws generally, problematic use of discretion, or the poor quality of counsel (and, in the case of juveniles, the actual absence of counsel in many cases), capital punishment issues are only the tip of the public-policy-problem iceberg.
So why keep harping on it? First, I think that capital cases can provide a starting point for the discussion of broader issues, if only because the consequences are so serious. So, for example, there are real reasons to worry that the Strickland ineffective assistance standard fails to guarantee defendants competent representation. But the case for change can be appear more compelling when you explain that these deficiencies can cost a human life. Second, I think there is a moral imperative to continually interrogate any process that involves intentional killings by government – whether that is capital punishment, torture, or even war. Sometimes the government must kill, but it is essential that citizens continually challenge government to justify and constrain that choice. Finally, and most simply, I think the reasons I set out up front justify serious attention to death.
But I certainly don’t think that capital punishment should use up all the oxygen of criminal justice debate. Doug’s blog does a great job of highlighting the many other issues worthy of serious attention. All of us who write about criminal law issues try to keep the spotlight on the manifold ways that criminal justice policy needs significant improvement. And I think there is a legitimate critique that many individual lawyers and organizations expend vast resources on capital work, while shortchanging the many other issues worth their attention. (Capital punishment is, in many ways, the abortion issue for the left; just as anti-abortion advocates feel they reach their highest personal calling blocking women from terminating pregnancies, many death penalty abolitionists feel the same way about their habeas corpus work.) But many of these committed abolitionists wouldn’t turn their energy to other criminal law injustices, even if the Supreme Court (or the WTO) declared the penalty a no-go. They would find other grand and dramatic battles to fight, probably outside the criminal justice system.
Personally, I’m going to try to keep up a mix of commentary about crime and society. Death penalty is one of many important issues on the table. If I am too obsessed, it is only by a degree – and is perhaps the result of my own present immersion in the issue as a result of the ABA death penalty assessment project. But I do think Doug’s caution is well-founded, a good reminder that we should never get lost in any one rabbit hole when we are trying to find a herd.