"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Monday, February 11, 2008

Costs, Continued.

Professor Berman over at Sentencing Law and Policy, in a posting about a state DP case in Wyoming, wonders
about the opportunity costs of the modern administration of the death penalty. There are literally millions of law-abiding Americans who could and would benefit greatly from just a few hours of a lawyer's time. And yet, while lots of law-abiding poor people have to make due with help from a lawyer, murderer James Harlow received the benefit of " year's worth of one lawyer's time" principally because the state of Wyoming decided it wanted to execute Harlow for his crime.
The opportunity costs, of course, extend far beyond the time of defense lawyers. How many crimes will go unprosecuted or under-prosecuted in Natrona County while state prosecutors invest resources in trying to add Donald Rolle to Wyoming's death row? How many civil lawsuits in the state will have to wait while state judges consider the "more than 100" motions that could be filed in the Rolle case? How many other state employees will get consumed (and perhaps even emotionally scarred) by the "long, difficult process" that just about every capital case creates?
Couple of thoughts occur: one, I have not noted a shortage of lawyers or wanna be lawyers:
1,084,504 lawyers. And our nation's 188 accredited and often subsidized law schools are graduating 40,000 new lawyers each year as they have consistently for the last 20 years. In a decade we will have 1,500,000 lawyers. A 50% increase.
This is one country where just about anyone who wants a lawyer can get one; indeed, we are choking with lawyers.

Second, if the elected prosecutor of Natrona County, Wyoming, wants to expend the time and effort to seek the DP for an appropriate case, why should a law school professor, or anyone outside of the electorate of that jurisdiction, have any say about that choice? Certainly it is unfair to guess that the elected official will now neglect his other duties. Having tried a capital case, I can assure Prof. Berman that it is possible and not particularly burdensome to prosecute a capital case while other prosecutors handle the other cases that are the bread and butter of a prosecutor's office. Any murder case, capital or not, will take the special time, care, and attention of a prosecutor or a team of prosecutors for the duration of the case.

Lastly, as to the numerous motions that will supposedly clog the court's docket-- yes, it is true that capital defenders must now snow under the courts with these motions ("CYA motions" as the saying goes, to cover them in the inevitable habeas), the overwhelming majority of which are form motions cranked out by capital defense seminars, and most of which are disposed of quickly in a few hours' motions hearing.

It is true that such cases take more time and deserve more care than the average case. But that the justice system is crippled by a capital litigation is an overstatement of the abolitionist movement.

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