I’d had a post on Sunday about the death penalty, and I wanted to follow up on a couple of points.  First, the US Supreme Court in Kansas v. Marsh gives an idea of how the Court will be affected by the replacement of Sandra Day O’Connor by Sam Alito.  Although O’Connor was a supporter of capital punishment — she dissented last year from the decision to ban execution of those 18 or younger — she’d become increasingly concerned about the procedural irregularities in applying it.  Interestingly, if you read Souter’s dissent in Marsh, it’s laid out like a majority opinion.  It might’ve been:  the case was originally argued in December, when O’Connor was still on the Court, but had to be reargued in April, after Alito took the bench.  Alito, of course, was part of the 5-man majority in Marsh.

While writing the post on Sunday, I came across a couple of other interesting pieces.  I’d thought that one of the reasons for the decline in the number of death penalties imposed was the creation of the “life without parole” penalty as an alternative.  The latter has been championed by capital punishment opponents for years, and forty-five states have now adopted it. 

As this article in the Harvard Law Review points out, though, the effect hasn’t been the intended one.  Life without parole statutes have had a negligible impact on imposition of the death penalty — the authors study death penalty rates in states with and without life without parole, and find that the overall decline in capital punishment has little to do with the availability of that penalty.  On the other hand, the number of defendants sentenced to life without parole has increased dramatically, and many of them never would have even been eligible for capital punishment. 

The net result of all this is that non-capital defendants are serving longer sentences, while the impact on death sentences is marginal, an effect that surely was not intended.

Another viewpoint on how the death penalty distorts the criminal justice system is offered in this article.  It’s a more general opinion piece than the Harvard article, but the author makes some interesting points.  He notes that in capital cases, unlike ordinary criminal cases, the appeals process delays imposition of punishment.  Because of the high visibility of death penalty cases, efforts are often made to shorten the appeal process and impose more stringent qualifications on post-conviction and habeas corpus remedies.  The result, though, is that restrictions on capital cases work their way throughout the entire criminal justice system:  a contraction in the rights of the capital defendant also contracts those of someone convicted of rape, burglary, and drug possession.

One can certainly make moral and logical arguments for and against the death penalty.  But given the complete absence of evidence that it has any deterrent effect, and the arbitrary nature of its imposition — a twenty-year study of Maryland showed that juries imposed it on less than 6% of those eligible for it — the distorting effects it has on the rest of the criminal justice system makes it hard to conclude that the game is worth the candle.