More compelling capital commentary

Those inclined to think deeply about death penalty issues can thank the folks over at PrawfsBlawg for lots of new capital food-for-thought.  First, PrawfsBlawg founder Dan Markel has this essay at Slate discussing the Ruben Cantu case (background here) and other death penalty developments to argue that it is “time for Texas and other states to call a moratorium on executions.”  Second, guestblogging at PrawfsBlawg, Will Baude has interesting posts here and here that ask “why we don’t simply move death penalty cases out of the Supreme Court to a specialized criminal court.”

Though I have many reactions to these new commentaries, I am finding that the current capital reflections draw me back to my work a few years ago putting together this symposium at Ohio State on “Addressing Capital Punishment Through Statutory Reform.”  All the articles from that symposium remain quite timely more than three years later, and my own current feelings about the latest wave of death penalty debate are largely reflected in the concluding section of my Foreword to that symposium:

[John Stuart] Mill’s insight about capital punishment’s “impression on the imagination” merits considerable attention when contemplating the potential for, and direction of, future reforms of the death penalty and the entire criminal justice system.  Though the punishment of death may not significantly impact the behavior of potential killers, the awesomeness of this punishment indisputably does impact the behavior of our criminal justice institutions.  In particular, we are seeing today the ways in which the drama of the death penalty — the fact that we are, in Mill’s words, “so much shocked by death” — fuels a genuine and considerable interest in legislators, and in the public at large, to be particularly cautious and conscientious before fully embracing and comfortably imposing the punishment of death.

The new public awareness of errors in capital cases combined with the death penalty’s “impression on the imagination” now allows legislators to speak and act more soberly and realistically about a range of criminal justice issues pertaining to capital punishment.  Moreover, because all the major problems identified in the administration of the death penalty (for example, wrongful convictions, racial and other disparities, poor quality and funding of defense counsel) are not unique to capital punishment, but actually plague the entire criminal justice system, advocates who have traditionally opposed the death penalty because of due process and equal protection concerns should consider taking advantage of the unique opportunity presented by capital punishment’s “impression on the imagination” to work toward developing legislative reforms which would be a step toward remedying problems that infest the entire criminal justice system.

In other words, I am suggesting that Mill’s insight may actually point to a different sort of pragmatic, utilitarian argument for supporting (or at least tolerating) the death penalty. In modern America, capital punishment’s “impression on the imagination” may be needed to ensure that our legal institutions do not get complacent about problems that pervade our criminal justice system, and may even provide a critical means to engineer remedies to system-wide problems through well-crafted legislative reforms.