Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions
Volume 82, No. 4, Winter 2009
By Chris Chambers Goodman, H. Mitchell Caldwell, & Carol A. Chase [PDF]

It was the ugly specter of race-based death penalty decisions in the sanctum of the jury room that sparked the Supreme Court to strike at the potential for jury arbitrariness in capital cases and to mandate “guidelines” before imposing the death penalty. Furman v. Georgia sought to limit “uncontrolled discretion” in the death penalty process —a discretion exercised outside the public view and with few if any “standards [to] govern the selection of the penalty.” In the wake of Furman and its progeny, the thirty-seven states that maintain the option of capital punishment have, of course, revised their statutes to implement “standards.” However, there has arisen new concern over whether the sentencing arbitrariness condemned by Furman has been replaced by prosecutorial arbitrariness at the charging stage. The potential for arbitrariness in charging decisions may be the by-product of current death penalty schemes that are so expansive that virtually any murder could be filed as a capital case. If that is so, have we come full circle? Should our previous concern about the arbitrariness of jury decisions imposing death verdicts at the conclusion of the trial be replaced by a concern about practices that permit arbitrary determinations by prosecutors in commencing capital cases?

Our focus on this potential for arbitrary death penalty charging crystallized two years ago. We, professors at Pepperdine University School of Law, were asked by the California Commission on the Fair Administration of Justice (the “Commission”) to survey all fifty-eight county district attorneys to ascertain the process and criteria each office uses when deciding whether a murder case should be prosecuted as a death penalty case. We prepared a survey that would elicit the necessary information, which we distributed to each office, planning to evaluate the results and prepare a report with our findings and recommendations for the Commission. In addition, we thought it important to publish our findings so the data would be available to a larger audience. Little did we suspect that our efforts would be met by reluctance, resistance, and even outright refusal. Of the fifty-eight counties, fourteen expressly refused to tell us how they determine which cases to file as capital cases, twenty offices responded with only cursory information, and only fifteen completed the survey. We were stunned.
Given this anemic response, we were unable to offer any definitive findings as to how such decisions are made. The refusal by the overwhelming number of district attorneys to disclose their processes raised serious and troubling questions. This lack of transparency and absence of access to information, much to our surprise, has become the real story of our efforts. Why are prosecutors up and down California unwilling to disclose their internal procedures involving issues of such paramount public concern and interest, not to mention matters of life and death?

Is this lack of transparency unique to California? This question motivated us to broaden our inquiry to other states. To do so, we developed a means of surveying the death penalty decision-making process in other states, and Part IV of this Article summarizes the fruits of that labor, which have only deepened our concern over the potential for abuse at the charging stage of potential capital cases.

With this concern in mind, this Article is devoted to several ends. First, we thought it important to return to the roots, so to speak, in an effort to evaluate whether the death penalty process in California and across the nation has drifted from the commands of Furman. In Part II we briefly address the history and lessons of Furman and examine its practical implications and interpretations. In Part III, we offer as a microcosm a report on our California survey and the minimal results and qualified conclusions that we could draw. Next, in Part IV, we provide the results of our state-by-state survey of the thirty-seven capital punishment states, in which we examined their death penalty schemes and the number of “capital eligible” cases prosecuted as capital cases. For the purpose of comparative analysis, in Part V we examine the federal death penalty scheme and the federal protocol for filing capital cases within that framework. Given our findings, we then explore in Part VI the theoretical and practical justifications for more openness and accountability by prosecutors as they make their capital filing decisions. We conclude in Part VII with some strategies for increasing accountability and rationality for the momentous decision of when to seek the death penalty.

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