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Statewide Capital Punishment: The Case for Eliminating Counties’ Role in the Death Penalty

Posted by on Saturday, March 27, 2010 in Articles, Volume 63, Number 2, Volumes.

In almost every state that authorizes capital punishment, local county prosecutors are responsible for handling capital trials and for deciding when to seek the death penalty. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets frequently lack the funds and institutional knowledge to seek the death penalty in even the most truly heinous cases. The result is geographic arbitrariness within a state. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are relitigated for years at enormous expense.

Because county control of death penalty cases has proven to be a failure, this Article offers a roadmap for eliminating counties’ involvement in the death penalty system. All aspects of capital cases—charging, trial, appeal, and everything in between—can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This Article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.