Saturday, November 5, 2011

A largely unconsidered consequence of capital punishment examined ...

Boston Review — Pamela S. Karlan: The Cost of Death:
Kouka, "Troy Davis"…
Troy Davis mural via Flickr
... [T]he concentration on capital cases comes at a cost. Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and impenetrable procedural thickets are hardly unique to capital cases. Nonetheless, the Court is far less likely to pay attention to these claims when the consequences to the defendant seem less harsh. Criminal law and procedure scholars such as Robert Weisberg of Stanford and Douglas Berman of Ohio State have described how the Court’s concern with death leads it to shortchange the constitutional claims of defendants facing lesser punishments. Berman has calculated that about one in ten thousand state felony sentences is a death sentence, yet the Court devotes more resources to reviewing death sentences than to reviewing claims in all other criminal cases combined. And while the Court has repeatedly considered whether a death sentence is proportionate to a particular class of crimes—for example, barring death sentences for non-homicide offenses or for juvenile or mentally retarded defendants—it has set virtually no limits on the severity of prison sentences. In the 40 years that the Court has been actively policing capital punishment, prison sentences have lengthened and the U.S. prison population has skyrocketed. With execution at the top end of the scale of punishment, a life sentence begins to look something like leniency, and other sentences are inflated in turn.

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