Letter from the Issue Editors
Wasby, Stephen L., Howard, Robert M., Justice System Journal
We are pleased to present a special issue on court-related aspects of capital punishment. This is a subject about which much has been written, particularly about which defendants are more likely to receive the death penalty and about the law resulting from the many challenges to it and the ways it is imposed and carried out. However, less has been written about the judges and lawyers who are involved in capital cases at trial and on appeal. Leaving the matter of who is more likely to be charged with a capital crime to our highly skilled colleagues in criminology, we wish to focus on those aspects of the subject that have lacked for attention. We do not attempt here to provide blanket coverage or to be exhaustive, but we have attempted breadth of coverage, and the reader will find fifteen articles on such subjects as death penalty law; other aspects of courts' involvement in capital cases; the role played by lawyers prosecutors, public defenders, and private counsel; jurors' involvement; and efforts in the states to abolish capital punishment. This special issue of Justice System Journal, while long planned, is particularly timely, coming as it does shortly after executions resumed in mid-2008 after a de facto moratorium while the Supreme Court considered lethal-injection protocols.
The articles have been grouped into four sections. The first, on the law and the courts, begins with a review, by Mark Hurwitz, the journal's Legal Notes Editor, of the basic death penalty jurisprudence the United States Supreme Court produced through the term ending in June 2008. After looking at the Court's pre-1970s attention to the Eighth Amendment, Hurwitz explores the key Furman and Gregg cases, respectively outlawing the death penalty as then applied and reinstating for states that had properly changed their statutes. He then looks at a variety of elements raised by death penalty cases, with particular attention to aspects of who may be subject to that penalty. The next article is Timothy Kaufman-Osborn's examination, focusing on the state of Washington, of state high courts' use of proportionality review as a potential safeguard for use of the death penalty. Because many state capital defendants, after having failed to reverse at least their capital sentences in state appeals, take their cases to the federal courts, Jon B. Gould provides a treatment of the law of federal habeas corpus, especially changes that place greater limits on its exercise.
We next turn, within this section on the law and the courts, to two articles dealing with court process. In the first, attorney Rose Jade deals with the quintessential court administration problem of records management as she examines the ABA guideline requiring defense counsel in capital cases to obtain a complete record of the case and the problems those attorneys encounter in trying to obtain such a record. The section ends with attention to appeals in capital cases, which critics have bemoaned as taking far too long, as James Cauthen and Barry Latzer explore the time appellate courts have taken to process such appeals.
The articles in the next section deal with lawyers who try capital cases and with aspects of their work. Three of those articles bear on reasons that affect the decision to seek to death penalty. First, Susan Ehrhard, setting her work in the context of plea bargaining, reports perceptions of prosecutors and defense attorneys on the use of capital charges as leverage to extract guilty pleas. Then James W Douglas and Helen King Stockstill, using both local prosecutors' views and caseload data from Soudi Carolina, examine whether, given the expense of capital trials, differences in county resources affect the bringing of capital charges. These articles are related in that, if cost constrains prosecutors, it might prompt using capital charges to induce guilty pleas to save the cost of trials. Finally, John M. Scheb HI and his colleagues use Tennessee data to look at whether race influences prosecutors' decisions to charge a capital offense and whether jurors' decisions are affected by the defendant's or victim's race. …