Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2000 The Overproduction of Death James S. Liebman Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation James S. Liebman, The Overproduction of Death, 100 COLUM. L. REV 2030 (2000). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/118 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. THE OVERPRODUCTION OF DEATH James S. Liebman* In this Article, Professor Liebman concludes that trial actors have strong incentives to-and do-overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review-which is ill-suited to the task and fails to feed back needed informa- tion to the trial level-to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro- death penalty trial actors (who generate more death sentences than otherwise) and anti-deathpenalty lawyers (who concentrate their resources on post-trial review proceedings where, given high rates of trial error, they prevail abnor- mally often). Reforms that focus only on trials or appeals cannot solve the problem. Professor Liebman offers a comprehensive 10-part plan to adjust the skewed incentives and curb the overproduction of death. TABLE OF CONTENTS INTRODUCTION .................................................. 2031 I. PROCEDURAL RIGHTS AND THE DIFFERENCE DEATH MAKES... 2033 A. More Procedures, Less Capital Punishment (1965-1983) ......................................... 2033 B. Fewer Procedures, More Capital Punishment (1984-2000) ......................................... 2038 II. SUBSTANTIVE CAPITAL DECISIONMAKING AND THE DIFFERENCE POsT-TRIAL REVIEW MAKES ................................ 2047 A. A Brief Sketch of our Actual System of Capital Punishm ent .......................................... 2052 B. A Hint of Overproduction ........................... 2057 C. Why Overproduction Might Occur ................... 2073 1. The Anti-Death Penalty Strategy: Keep the Powder D ry .......................... ................... 2073 2. The Pro-Death Penalty Strategy: Full Steam A head ........................................... 2078 a. The Offense ................................. 2078 b. The Investigation ............................ 2082 c. The Capital Charge .......................... 2097 d. The Trial .................................... 2098 e. The Gamut .................................. 2100 3. Absolute Power: Five Missing Constraints ......... 2101 a. Ineffective Defense Lawyers .................. 2102 * Simon H. Riflkind Professor of Law, Columbia Law School. Thanks to Kara Finck, Brandon Garrett, Jonathan Lloyd, and Hope Mohr for superb research assistance, to Peggy Cross for her sensitive editorial assistance, and to participants in Columbia Law School's Thursday Faculty Lunch Program for their helpful comments. 2030 20001 THE OVERPRODUCTION OF DEATH 2031 b. Suppressed Contrary Evidence ................ 2110 c. Lax Judicial Supervision ...................... 2111 d. Credulous Jurors ............................. 2114 e. Weak Feedback from Reversals ............... 2119 4. Maximized Benefits and Displaced Costs: The Role of the Capital Defense Bar ....................... 2129 III. SOLUTION: THE DIFFERENCE A CONSCIENTIOUS TRIAL-Focus WOULD MAKE ............................................ 2136 A. Inadequate Solutions ................................. 2136 B. Overhauled Incentives ............................... 2142 1. 120-day Deliberation Period ...................... 2144 2. O pen Files ....................................... 2145 3. Videotaped Confessions .......................... 2147 4. Adequate Defense Counsel and Support Services . 2147 5. Death-Neutral Guilt-Phase Juries .................. 2148 6. Truth in Sentencing ............................. 2148 7. Substantive State Court Review of Capital Judgm ents ....................................... 2148 8. Meaningful Federal Backup Review on Direct Appeal ............ .............................. 2149 9. Motions Based on Innocence ..................... 2149 10. Disclosure of Error and Risk Rates ............... 2149 CONCLUSION ...................................................... 2154 [W]e have constructed a [capital punishment] machine that is extremely expensive, chokes our legal institutions, visits re- peated trauma on victims' families and ultimately produces nothing like the benefits we would expect from an effective sys- tem of capital punishment. This is surely the worst of all worlds. - Hon. Alex Kozinski & Sean Gallagher1 [W]ho chose this system? 2 - Jordan Steiker INTRODUCTION This Article considers the relationship between substance and proce- dure in death penalty and habeas corpus law. 3 Since the 1960s, a crucial 1. Alex Kozinski & Sean Gallagher, For an Honest Death Penalty, N.Y. Times, Mar. 8, 1995, at A21 [hereinafter Kozinski & Gallagher, Honest Death Penalty]. 2. Jordan Steiker, Restructuring Post-Conviction Review of Federal Constitutional Claims Raised by State Prisoners: Confronting the New Face of Excessive Proceduralism, 1998 U. Chi. Legal F. 315, 318 [hereinafter Steiker, Excessive Proceduralism]. 3. Also exploring this relationship are, e.g., Joseph L. Hoffmann, Is Innocence Sufficient? An Essay on the U.S. Supreme Court's Continuing Problems with Federal Habeas Corpus and the Death Penalty, 68 Ind. L.J. 817, 822, 831-34 (1993) (decrying the Supreme Court's "overconfidence in the value of procedures," including both death sentencing and habeas corpus procedures, to cure substantive defects in undeserved convictions and death sentences, and calling for a "frontal assault on the process 2032 COLUMBIA LAW REVIEW [Vol. 100:2030 assumption has driven all efforts, however motivated, to reform capital punishment and habeas corpus law. According to that assumption, crimi- nal procedural rights and substantive capital punishment have a zero-sum relationship: Expanding procedural rights-particularly the right to a post-conviction or habeas corpus procedure for enforcing other rights- frustrates the death penalty. Contracting criminal procedural rights- particularly habeas review-permits capital punishment to flourish. This assumption appears to have considerable basis in fact. The abo- lition and procedural rights campaigns launched by the NAACP Legal Defense and Educational Fund (the "Fund") in the mid-1960s initially succeeded in securing enhanced procedural protections for capital and other criminal defendants. These protections indeed led, first, to a mora- torium, and then, in 1972, to a ban on executions under pre-existing death penalty statutes. Even after many states began adopting new stat- utes in 1973, the Fund's continuing procedural successes coincided with the limitation of executions to none or only a few a year for a decade. But when the Supreme Court began scaling back the procedures for en- forcing criminal procedural rights in the mid-1980s, the number of ex- ecutions rose. This Article, however, presents evidence revealing how thoroughly our actual system of capital punishment belies the traditional zero-sum as- sumption. In the guise of enforcing criminal procedural rights, our post- trial review processes in fact have come to play an essential role in the substantive determination of who lives and who dies. Trial-level actors drastically overproduce death sentences (two to six or more for every one the system means to carry out), foisting on post-trial courts the prodigiously expensive task, for which they are unsuited, of winnowing out the excess sentences. With little resistance from defense lawyers at trial, and with the unwitting connivance of the anti-death penalty bar thereafter, 4 police, prosecutors, judges, and juries operate with strong in- centives to generate as many death sentences as they can-reaping robust psychic, political, and professional rewards-while displacing the costs of their many consequent mistakes onto capital prisoners, post-trial review courts, victims, and the public. In the wake of public outcry over both the length of the capital ap- peals process and the number of high-profile reversals of death sentences based on actual innocence and other serious trial errors, legislatures have begun contemplating reforms designed to correct this overproduction. orientation of modern Eighth Amendment law");Joseph L. Hoffmann & William J. Stuntz, Habeas After the Revolution, 1993 Sup. Ct. Rev. 65, 113-14 (urging the Court to expand habeas review of criminal cases in which there is a showing of actual innocence and to contract review in cases in which there is no issue of actual innocence); Steiker, Excessive Proceduralism, supra note 2, at 320 (proposing the elimination of "many of the purely procedural questions in federal habeas law"); infra note 261 (citing other sources). 4. I have been a member of that bar since 1979, when I began a six-year stint with the