Article excerpt

The result of the capital punishment system has been to impose a number of extreme burdens and hardships on the judiciary

From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored-indeed, I have struggled-along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.1

- Justice Harry A. Blackmun

Justice Blackmun's dramatic conclusion in his Callins v. Collins dissent came after nearly 24 years of reviewing, and often upholding, death sentences while serving on the Supreme Court. Implicit in his opinion is an awareness of the difficulties and costs that the death penalty imposes on the judiciary, and the realization that despite "struggling" with these burdens, the judiciary has failed to achieve a result that could justify those costs that are inherent in the continued maintenance of the death penalty.

That the death penalty is costly and bogs down the judicial system is, to some degree, self-evident. The unique severity and finality of the death penalty leads most people to conclude that an extra level of care is required. As the Supreme Court has said, because "the penalty of death is qualitatively different from a sentence of imprisonment, however long, . . . there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."2 Thus, death penalty cases involve many unique procedural elements, distinctive incentives for death row inmates to exhaust every option, and an obligation on judges to make emotionally charged life or death decisions. The result is that these cases take an immense toll on the judiciary that is greater than in any other type of criminal case.

Virtually every element of a death penalty case takes longer and is more involved than in typical criminal proceedings. Jury selection typically takes much longer,3 and more pretrial motions are usually filed.4 Capital trials are bifurcated, with separate trials for the guilt and sentencing phases.

Because of the severity of the possible outcome and the greater leeway given to the admission of evidence at the penalty phase, there is normally a much greater use of investigators and expert witnesses, such as psychiatrists and forensic scientists, than is the case in a non-capital proceeding. Similarly, because the Supreme Court has held that the sentencer cannot be prohibited from considering any mitigating evidence at the sentencing phase of a capital trial, including "any aspect of a defendant's character or record,"5 character witnesses such as family members and acquaintances are often utilized.

Review and appeal

Once a death sentence has been imposed, there is an automatic state court review of death sentences,'1 a clemency hearing, and other avenues of review and appeal that are available to the defendant. There is also an obvious incentive for defendants in death penalty cases to raise every possible issue and pursue every possible avenue of appeal, no matter how slim the chances of success, that is much greater than in non-death cases. When the best a defendant can realistically hope for is a modest reduction in the length of his or her confinement, he or she may choose to forgo the hassle and expense of appealing every possible-issue, especially when the chances of success seem slim. In a death penalty case, on the other hand, because "[d]eath, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two,"7 there is a clear incentive to exhaust even' possible appeal on every conceivable issue8

Death penalty cases are also more likely than other criminal cases to attract pro bono legal assistance. …