Article excerpt

The impact of the death penalty on the criminal justice system is not as great as claimed, but whatever the impact it is worth the price.

Justice comes in many forms in the American criminal ustice system. For some defendants, ajust result is a disTiissal, a no-bill, a probated sentence, or a term of incarceration. For the worst offenders in many states, however, justice is done by the imposition of a death sentence.

The death penalty in America has justifiably prompted an enormous amount of scholarly and political discussion from many different perspectives. Some arguments turn on the morality of capital punishment, some turn on its deterrence (or perceived lack of deterrence) to criminals, and some attempt to measure the economic and societal costs of capital punishment.

Not often heard in this discussion is the perspective of the trial prosecutor-the person most responsible for the decision to seek and impose the death penalty on a capital offender. This article provides one trial prosecutor's assessment of the practical impact of capital murder prosecutions in comparison to other facets of the criminal justice system. In Harris County, Texas, a county notable for its willingness to pursue the death penalty, a deep familiarity with the system can be developed. This permits the conclusion that, while "death is different," as some courts have observed, the practical similarities of capital murder cases to the other cases in the system should not be minimized.

Initial investigation. A capital murder is introduced into the criminal justice system by a law enforcement investigation. In almost every community in this country, a police officer responds to the scene of a death. An investigation ensues to determine whether it is the result of a homicide and if so, who is responsible.

The level of effort and professionalism devoted to solving a homicide is not determined by the punishment the suspect will face. In most jurisdictions, the prosecutor, not the police officer, makes the charging decision, and that decision is not made until the police investigation has been completed.

It is the taking of life, not the possible punishment, that drives law enforcement's efforts. The death penalty does not require more of or less of the police. It simply has no impact on the criminal justice system at the investigative level.

The impact of the jurisdiction. One of the more telling factors in assessing the impact of the death penalty is the jurisdiction in which the capital murder is committed. Even in those 38 states where the death penalty is available,1 all counties are not the same and the burden on the prosecutor's office varies. In many jurisdictions, capital crimes are a rarity. The American Civil Liberties Union suggests that there are some prosecutor's offices that must employ additional attorneys to prosecute a case.2 Other offices may reassign prosecutors from other cases, employ jury consultants, and require additional legal research.3 There is little doubt that the learning curve in the occasional capital case can be a formidable hurdle for a prosecutor.

In places where capital crimes occur on a regular basis, like Harris County, Texas, the learning curve is significantly flatter. According to the Texas Department of Criminal Justice website, between 1995 and 2004, Harris County prosecutors sent an average of nine people a year to Texas' death row.4 They obtained a death sentence in approximately 75 percent of the cases where death was sought.5 A jury is asked to return a sentence resulting in the death penalty when it is believed to be an appropriate result given all the circumstances in a case and when it is believed that the result will be upheld on appeal.

This does not create a prosecutor's office lusting for a sentence of death. In an average year, 60 or more capital murder indictments are produced from the grand juries that sit in Harris County." What it does produce, however, is a group of prosecutors who have "become experts at capital prosecution. …