The American Execution Queue

By Kovarsky, Lee | Stanford Law Review, May 2019 | Go to article overview

The American Execution Queue


Kovarsky, Lee, Stanford Law Review


Table of Contents  Introduction  I.     Execution Scarcity        A. Decoupling Death Sentences from Executions        B. Institutional Coordination and Political Will        C. Scarcity and Arbitrariness II.    Sorting Dissensus        A. Upstream Sorting        B. Downstream Dissensus           1. Sorting dissensus and law           2. Sorting dissensus and norms III.   Evaluating Sorting Criteria        A. Blame        B. Incapacitation        C. Deterrence        D. Vindication Surplus and Revenge Utilitarianism        E. Accuracy IV.    Institutional Design        A. Design Principles           1. Centralization           2. Side-constrained rulemaking           3. Separated selection powers        B. Nonarbitrariness and Legitimacy           1. Nonarbitrariness (equality)           2. Legitimacy  Conclusion 

Introduction

There are two American death penalties. The first is the process by which a suspected perpetrator is sentenced to death: a homicide, law enforcement's pursuit of a suspect, a jury trial before peers, and a capital sentence expressing an aggrieved community's judgment for a heinous crime. This process inevitably involves arbitrary decisionmaking, but professional communities and legal institutions have developed norms and laws responsive to that problem. At least theoretically, prosecutors capitally charge only perpetrators of the most heinous crimes, (1) and juries levy death sentences on only the most deserving offenders. (2) In producing death sentences, U.S. jurisdictions (3) expend considerable resources sorting the "worst of the worst" from the "worst of the really bad."

The second American death penalty--and the topic of this Article--is the process by which inmates sentenced to death are actually selected and sequenced for execution, a process I refer to as "execution selection." U.S. jurisdictions maintain no pretense of avoiding arbitrary decisionmaking when they construct their execution queues. There is no federal law on execution selection, and state law usually governs only ministerial authority to seek and set execution dates. (4) Norms and legal rules tell us how the bell will toll, but almost nothing about when or for whom. There are virtually no constraints on execution selection, inviting a raft of questions about the role of chance and arbitrary decisionmaking in the most visible acts of state killing. As a descriptive matter, why is the process permitted to remain so under-regulated? As a normative matter, should execution selection even be analyzed as "punishment"? And how should institutions respond?

To analyze these questions, I conceptualize the modern American death penalty as a sequence of selection phases. After a homicide, law enforcement uses arrests to select suspects (5) and then uses the charging process to select certain arrestees for capital prosecution. (6) Judges, juries, and lawyers then select capitally prosecuted defendants for death sentences by determining guilt and punishment. (7) There is virtually no literature on the final phase, execution selection, for many of the same reasons that norms and laws fail to constrain it. (8) Execution selection is a term in desperate need of coining because almost nobody even thinks of it as a thing. The visible parts of American capital punishment are the crime, the arrest, the trial, and the ritualized drama preceding the execution itself. (9)

Important clues explaining the arbitrary construction of the execution queue come from literature about when society tolerates--and even nurtures-random decisionmaking. (10) At the final selection phase, the differences among eligible inmates are either incommensurable or, although commensurable, too small to be reliably ordered using available sorting criteria. (11) Phrased a bit differently, execution selection remains insufficiently constrained because, among other things, institutions cannot agree on sorting tools and, in any event, the available sorting tools are too crude to produce a reliable ordering of execution priority. …

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