The Effects of Capital Punishment on the Administration of Justice

By McCord, David | Judicature, March/April 2006 | Go to article overview

The Effects of Capital Punishment on the Administration of Justice


McCord, David, Judicature


There are many passionate arguments both for and against capital punishment. The arguments usually contend for the high ground on moral issues such as religious belief, human dignity, innocence, racism, and injustice-to name just a few. Often overlooked in the debate, however, is the fact that capital punishment has a tremendous impact on the day-to-day administration of justice in the United States. This impact is felt at both the systemic level, and at the individual level by those who work within the system, or are otherwise affected by it. The effective administration of justice is a moral issue that has constituted the sine qua non of the work of the American Judicature Society for almost a century. Accordingly, we have comprised this symposium to collect for the first time a set of perspectives on the effects of capital punishment on the administration of American justice.

The 15 contributions to the symposium are arranged in four groups. Three pieces are overviews of the issues. First, Professors Carol Steiker (Harvard Law School) and Jordan Steiker (University of Texas Law School) set the stage by showing that "the shadow of death" causes substantial effects on every part of the justice system even though the number of death penalty cases is miniscule. Then, informed layperson Michael Hintze (a senior attorney at Microsoft Corporation, and in his law school days author of an outstanding student article on the systemic effects of capital punishment), provides a complete yet concise run-down of the law governing the death penalty that conduces to huge systemic effects. The final overview is written by me, the symposium's guest editor, as the final piece-an Afterword that poses the unusual question of how capital punishment would fare if it were subjected to consumer protection analysis.

The second group of contributions consists of perspectives from professionals involved in the capital punishment system. We begin with a trial-level capital prosecutor, Bill Hawkins (Harris County, Texas), who argues that capital cases put no undue strain on the system-at least in a county that is quite accustomed to litigating them. We proceed to an appellate prosecutor, Dane Gillette (California Attorney General's Office), who explains the tortuous and often unsuccessful path that must be wended in seeking to uphold death judgments through the direct appeal and post-conviction processes. Then, switching sides of the fence, we present perspectives of two trial-level capital defense counsel. First, Neal Walker (Louisiana Capital Assistance Center) highlights the nitty-gritty failings of the system that cause it to consume massive resources while at the same time producing questionable outcomes. Then Deborah Coins (Florida) explains how even jurors who initially are pro-capital punishment can often be swayed when presented with the facts pertaining to an individual defendant. …

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