CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, November 20, 2009

Epstein on Death-Worthiness and Prosecutorial Discretion

Epstein jules Jules Epstein  (Widener University - School of Law) has posted Death-Worthiness and Prosecutorial Discretion in Capital Case Charging (Temple Political & Civil Rights Law Review, Forthcoming) on SSRN. Here is the abstract:

Any attempt to assess the merits of a prosecutorial ‘selection’ scheme in capital-eligible homicide cases must have an appropriate metric. Scholarship to date has screened such discretionary scheme for racial and intra-state geographic disparities and found recurring problems in each area, with race (often race of victim) standing out in some jurisdictions as a dispositive factor in which defendant must face the death penalty at trial. If one assumes that a well-designed capital charging process can reduce if not eliminate such disparities, a metric for judging the success of prosecutorial charging schemes is still needed. This paper proposes that metric to be “death-worthiness,” a standard derived from the Court’s repeated insistence that the death penalty be reserved for the ‘worst of the worst,’ a standard that examines not only the crime and the negatives in the background of the accused but also all mitigating factors.

Even if a prosecutor’s office were to embrace this metric, and conduct pre-trial reviews of defense mitigation evidence to screen out those not ‘worthy’ of death, three barriers stand in the way of successful implementation of this standard. Counsel often fail to develop mitigation evidence, either due to ineffectiveness or a lack of resources. A defendant’s youth may compromise his/her willingness and ability to assist in the mitigation process, and where youth stands as a barrier to expressing remorse may unjustifiably leave a particular defendant in the death-worthy cohort. Finally, the power of victim survivor constituencies, as when the victim is a police officer killed in the line of duty, may bar a well-intentioned prosecutor from declining to seek death even where the individual defendant is not death-worthy. The result will be an over-inclusive charging process in capital cases; and given the variability of juror response (and the persistence of race-based judgments in jury deliberations), the result will ensure that capital punishment is visited upon some who are not, by any measure, “death worthy.”

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