Tinkering with the Machinery of Death: CAPITAL PUNISHMENT'S TOLL ON THE AMERICAN JUDICIARY

By Hintze, Michael | Judicature, March/April 2006 | Go to article overview
Save to active project

Tinkering with the Machinery of Death: CAPITAL PUNISHMENT'S TOLL ON THE AMERICAN JUDICIARY


Hintze, Michael, Judicature


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Tinkering with the Machinery of Death: CAPITAL PUNISHMENT'S TOLL ON THE AMERICAN JUDICIARY
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?