The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience trying capital cases or who receive inadequate resources from the State to pay litigation expenses. Instead, the appellate system is forced to deal with large amounts of error, creating backlog and delays. This article proposes a radical trade-off for capital defendants in which they agree to give up existing post-conviction review rights in return for a real assurance of better qualified, higher quality trial counsel. This proposal will avoid the traps of window dressing reforms, save states a good bit of the expense of appellate review, and make the capital punishment system more fair, efficient, and effective.
Criminal Law | Criminal Procedure | Law
James S. Liebman,
Opting for Real Death Penalty Reform,
Ohio St. L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/297
Originally published in 63 Ohio St. L. J. 315 (2002).