The Effect of Capital Punishment on American Criminal Law and Policy
Steiker, Carol, Steiker, Jordan, Judicature
The shadow of death
Despite few executions and the relatively small number of offenders on death row, the death penalty exerts a disproportionate influence over the rest of the vast criminal justice system.
The American death penalty is undoubtedly a small part of the American system of criminal justice. The 3,500 or so inmates presently on death row represent less than two-tenths of a percent of the prisoners incarcerated nationwide, a population that reached over two million five years ago. Death-sentenced inmates represent an even smaller portion of the almost seven million individuals incarcerated, on probation, or on parole. Moreover, actual executions remain relatively rare events, averaging about 65 a year over the past half-decade (after reaching a 48-year high of 98 in 1999). Executions also remain concentrated in a few states, with Texas, Virginia, Oklahoma, Missouri, and Florida accounting for well over half (654) of the 1004 executions nationwide in the modern era (beginning in 1977).
At the same time, the death penalty remains an extraordinarily salient issue in public life. Over the past five years, the administration of the death penalty in this country has become a highly contested political issue, and the media have devoted extensive coverage to various aspects of it. The numbers above might suggest that public and political interest in the death penalty is disproportionate to its significance. On this view, the American death penalty is significant less for what it is or does within the American criminal justice system than for what it reveals about American culture. The death penalty might have symbolic meaning but it is not a serious part of what has become the world's largest criminal justice system.
We believe the opposite is true. Despite the small numbers of offenders within the capital punishment domain, the death penalty exerts a disproportionate influence over the rest of the vast system. For better or worse, advocates of reform in our criminal justice system tend to highlight perceived weaknesses of the capital system. The resulting reforms tend to establish norms for the noncapital system as well. Proponents of the death penalty tend also to be "tough on crime" conservatives on most substantive and procedural issues in criminal justice generally. Thus, it is not unusual to see prosecutors and legislators using high-profile capital cases to promote judicial decisions and legislative policy that sweep more broadly.
This dynamic is evident in the successful effort to limit review of federal claims through federal habeas corpus. Supporters of the death penalty sought such reform because of the well-documented delay between sentence and execution in capital cases. These efforts culminated in the Antiterrorism and Effective Death Penalty Act (AEDPA)1, which, notwithstanding its title, radically altered the availability of federal habeas review for all state and federal prisoners, not just those on death row.
In many ways, AEDPA carried forward the Supreme Court's own reforms designed to limit the scope of the federal habeas forum. Beginning in the mid-1970s, the Court moved away from the Warren Court vision of federal habeas as a means of ensuring at least one meaningful opportunity for federal review of federal claims raised in state court. First, the Court crafted a demanding standard for petitioners seeking to overcome procedural defaults imposed in state court.2 It then established a non-retroactivity doctrine that prevented inmates from raising or benefiting from "new" claims of constitutional right that had not been firmly established when their convictions had become final in state court.3
In the wake of the Oklahoma City bombing in 1995, Congress sought to strengthen the American death penalty by adjusting the timing and scope of federal habeas review. AEDPA imposed, for the first time, a statute of limitations on federal habeas petitions and strongly limited the circumstances in which federal courts could entertain successive petitions. …