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1995 The Romance of Revenge: An Alternative History of Jeffrey Dahmer's Trial Samuel R. Gross University of Michigan Law School, [email protected]

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Recommended Citation Gross, Samuel R. "The Romance of Revenge: An Alternative History of Jeffrey Dahmer's Trial." Law Quad. Notes 38, no. 1 (1995): 44-51.

This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. At his sentencing two days later, Dahmer

AN ALTERNATIVE HISTORY &id. "I take all the- blame- for what 1 . -, - did.. .. Your honor, it is over now. This OF JEFFREY WrS I has never been a case of trying to get free. I never wanted freedom." His lawyer told - BY SAMUELR. GROSS On Feb. 17,1992,Jeffrey Dahmer was the press that no appeal was planned. sentenced to fifteen consecutive terms of What happened After Dahmer's arrest for killing and dis- ' Excerpted with permission from an is of minor importance by comparison membering fifteen young men and boys.' with what he did, which is unspeakable. articlejrst published in Stitdies in Dahmer had been arrested six months Law, Politics and Society, Vol. 13, Still, the criminal justice system did very earlier, on July 22, 1991. On Jan. 13 he well inllthis case. It handled a revolting pp. 71 -1 04 (1 9931, by permission of pled guilty to the fifteen counts the publisher, JAl Press Inc. set of crimes and a potentially explosive against him, leaving open only the issue trial with as much civility, compassion, of his sanity. Jury selection began two ' and dispatch as possible. Half a year after weeks later, and the trial proper started the arrest, the trial was truly over, and, on Jan. 30. The jury heard two weeks of let us hope, the healing did begn. - horrifying testimony about murder, Jeffrey Dahmer was tried in mutilation and ; they deliber- - one of the fdhrteen American states ated for five hours before finding that that have no death penalty. How would Dahmer was sane when he committed this drama play in one of the thirty-six these crimes. other states? He would certainly be After the verdict, a minister who had charged with capital murder, and then a counselled members of the victims' new set of horrors would begin. families told the Tribune, "I thmk this will be the beeinning of a healing." CAPITAL PUNISHMENT IN AMERICA

At the outset, it is very unlikely that As soon as Dahmer ~7asarrested in The trial would be delayed by any Dahmer would plead guilty if he faced Wisconsin, i: was clear that he would number of possible pre-trial motlons: the death penaltji. He might still want to never be released. (Indeed, less than to determine the present sanity of the do so, at least initially; after all, at his three years later, on Nov. 28, 1994, defendant, to declare the applicable death sentencing Dahmer told the judge, Dahmer was killed in prison by another penalty statute unconstitutional, to "Frankly, I wanted death for myself." His inmate.) That would be equally true if he challenge the seizure of evidence from lawyers, however, would feel ethically was charged across the border in , Dahmer's apartment, to suppress hls bound to advise him against pleading or in anji other death penalty state, but confessions, to challenge the composition guilty to a certain death sentence. At a the significance of that fact would be of the jury panel, and so on. Some of the minimum, they would delay entry of a vastly different. In r\?ilwaukee, it meant rulings on these motions might be guilty plea for as long as possible, to that the defense had no strong incentive appealed before trial. prevent their client from taking a fatal to delay the day of judgment, since the As trial approached, the defense would step ihat he could not undo. If necessary, only open question was ~,vIzichstate probably tq7 to obtain special procedures hey might atcernpt to get the court to institution Dahmer would live and die in to insure the impartiality of the jury: declare him unfit to enter a plea on his In Chicago, the issue would be ho~vlong a change of venue, special and time- own behalf. In addition, if their client he would sunive in state custody: consuming procedures in jury selection, were facing the electric chair (or the gas Would he live to die of natural causes or a further long delay, and so forth. chamber, or lethal injection), Dahmer's would he be esecuted, and if executed, A capital trial of Jeffrey Dahmer lawyers would be much more concerned when? In that context, Dahmer's attor- (beginning perhaps a year or two after about preventing him from cooperating neys would slow the proceedings down the arrest) would be a vast event. Jury with the police investigation and from as much as possible, to make sure that selection alone could easily take longer confessing fully, repeatedly, and in detail they did whatever could be done in a than the sanity trial that actually oc- - as he did. case in which their client's life was at curred. In addition, the state would ha1.e stake, and to postpon'? a judgment that could only hasten his death. THE FINANCIAL COST OF PURSUING A CAPITAL PROSEEUTION THROUGH TO EXEEUTION IS HIGH. to prove that Dahmer committed each of and anger, and Dahmer himself spoke entitled to direct review of he trial fifteen cruel, disgusting . Dahmer briefly. A capital penalty trial would be record by the state supreme courL; if he could hardly deny that he killed any of veq7 different. The victims' relatives lost, he could petition the U.S. Supreme his victims - the physical evidence was would be allowed to speak as they did, Court to review that appeal by a writ of overwhelming - but the prosecution but much more would ride on their certiorari. If the Supreme Court declined might not have an easy a time proving statement^.^ As a result, the defense to do so, he could file a petition in a state that he killed enclz of them, with "malice attorneys would have the right to cross- court (usually a state trial court) for aforethought" and wit11 "premeditation examine the bereaved survivors. Some of "collateral" or "post-conviction" review, and deliberation." Weeks, if not months, them might not want Dahmer to be raising issues that could not be deter- would be consumed reviewing his executed; that division could surface. mined in the first round of appeals. atrocities in detail - pictures of muti- (On the other hand, if some of the A ~ypicalissue at this stage is that the lated bodies and body parts, testimony victims' relatives told the jury that they defendant's trial or appellate attorneys from pathologists and criminologists, did want him to be executed, that could were ineffective - a claim that fre- descriptions of how the remains were be a basis for a later reversal on appeal.') quently cannot be addressed on the trial found, evidence of bite marks and knife In addition, the defense would record alone. wounds - all to a packed press gallery, probably present testimony from psy- State collateral review is extremely if not on live television. Some of this did chiatrists and psychologists who would variable. The initial proceeding might be happen in the sanitjr trial that actually describe Dahmer's obvious mental over in hours, or it might take years. If took place, but not nearly as much as we pathologies in elaborate detail; the Dahmer lost again at that stage, he could might expect in a capital case. prosecution would counter with its own probably appeal to a state appellate court Along the way there would be numer- experts. Dahmer's childhood and up- -perhaps even to two levels of state ous objections and arguments about bringing would be scrutinized. If there is appellate courts - and then, again, seek evidence and procedure, which would any pain or humiliation that his parents discretionary review from the U.S. fuel future appeals. Everybody involved and relatives have in fact been spared, Supreme Court. Finally (if he lost at - the police, the , the judge, they would not escape it in a capital case. every stage up to this point) he could the defense attorneys, the city adminis- And then Dahmer would be sen- petition for federal collateral review by tration, perhaps the jurors, perhaps even tenced. If he were not sentenced to filing a petition for a writ of habeas some of the victims or their kin - would death, there would be fury, frustration, corpus in a federal district court. If that come in for their fair share of abuse. recriminations, perhaps even violence. petition was denied, he could appeal to a At the end of the trial, Dahmer would If he were sentenced to die, at least the federal court of appeals, and then ask the undoubtedly be found guilty on all or prosecution would have achieved its goal. Supreme Court for certiorari review a most counts - at the cost of millions of But it would not be over, not nearly. In third time. If his third petition to the dollars and incalculable additional that situation, unlike in the actual case, Supreme Court was denied, Dahmer suffering.Then his sanity would have to Dahmer would appeal. could file new ("successive") petitions for be determined, as it was in real life. In collateral review in state and federal this scenario, however, that, too, would courts, and (if necessary) appeals from be a much slower, more contentious, and the denials of these petitions. Successive more expensive proceeding. Finally - A CAPITAL CASE petitions are increasingly disfavored, but if (as I expect) he was found to be sane they still succeed sometimes, at least - there would be a penalty trial, prob- ON REVIEW temporarily. For the most part, any convicted ably before the same jury.2 Procedurally, the appellate review The penalty proceeding in Dahmer's prisoner has these same appellate process for a death sentence is quite options. But there are four differences in actual case was short: Nine relatives of complex. First, Dahmer would be victims spoke about their sorrow, pain, capital cases:

See Lockhart v McCi-ee, 476 U.S. 162 (1986) Tennessze v Payne 111 5.c~.2597 (1991). + See Lockiznrt, note 2; Stare v Huerias, 51 Ohlo St 3d 22, 553 N.E.2d 1058 (1990)

46 THE UNIVERSITYOF MICHIGAN LAW SCHOOL BY ALL ESTIMATES, IT IS EONSIOERABLY HIGHER THAN THE LOST OF A NUN-EAPITAL MURDER EONVIETION FOLLOWED BY LIFE IMPRISONMENT.

First, traditionally, courts are more even non-capital murder trials. direct review, but the chance of winning careful in reviewing claims of error in If Dahmer's capital trial followed the something somewhere in the multi-step capital cases. There is a strong norm that course I have described, it might take one process is still substantial. Equally impor- is still widely shared (except, perhaps, by to three years simply to complete the tant, each stage takes time. If there is a [he United States Supreme Court) that a record for the first appeal. After that, the reversal at any point, the case is sent back defendant who is facing death is entitled process of reading the record and writing to an earlier point in the process - for a LO a higher level of due process than one the briefs might take another six months habeas corpus hearing by the federal who is merely at risk of losing time or to a year, perhaps longer. After the case is district court, for a redetermination of an money.5 briefed, the state supreme court would issue on appeal by the state supreme Second, a non-capital sentence can be schedule oral argument. This might entail court, for a new penalty trial in the state implemented before appellate review is another six- or twelve- or twenty-month trial court, etc. - and restarts from that complete. Some convicted defendants delay, depending on the backlog of other point. Any time this happens, the state has (Leona Helmsley, for example) are capital and non-capital cases. Eventually, to decide whether to throw in the towel allowed to remain free on bail pending the court would hear the arguments and and settle for a life sentence, or start up direct appeal, but others (Mike Tyson) reach a decision - after another lengthy the hill again. In "ordinary" capital cases, are remanded to custody; almost all delay during which the judges and their the prosecutors frequently decide to give remain imprisoned during collateral staff digest the small mountain of paper up the quest after an appellate setback. In review proceedings. Many defendants such a case generates, analyze and decide Dahmer's case, the prosecution would never make bail at all, and remain in the issues, and come to terms with their probably never give up, in part because custody from arrest through the comple- own feelings about this horror. They every visible event would produce a new tion of their sentences. One way or could reverse Dahmer's murder convic- wave of publicity, new anger, new re- another, a sentence of imprisonment may tions (or some of them), or they could criminations - and renewed suffering for be over by the time the federal courts affirm the convictions and reverse the the survivors of all the victims. complete their review of a habeas corpus sentence. Karima Wicks, former research petition in a non-capital case; post- director of the NAACP Legal Defense and conviction delay favors the state. By Educational Fund's Death Penalty contrast, appellate review of any sort is Project, estimates that perhaps half of all NO EN0 IN SIGHT impossible after a prisoner is executed - death sentences or the underlying How would it end? Perhaps after five or the case is moot - so death sentences convictions are reversed on initial appeal ten years Dahmer would have his death must be stayed during both collateral and - a far higher reversal rate than in other sentence reversed and reduced to life direct appeals. criminal cases. Dahmer's appeal could imprisonment. This is the same sentence he Tlzii-d, non-capital defendants have present excellent grounds for reversal; in fact received, but it would not carry the limited access to lawyers. Every defen- in a case as complex and messy as this same meaning; it would cause an explosion dant has the right to an appointed one would be, there is plenty of room of pain and anger. Many who were satisfied attorney on direct appeal,%ut there is no for misconduct, unfairness, and error. when he was sentenced to the ma,ximum such right for collateral review,' and very Nonetheless, I expect that his death penalty - life - would be furious that he few prisoners can afford to hire lauyers. sentence, like those of most serial received only life when death was possible. Prisoners with death sentences, however, murderers, v~ouldbe affirmed. They would feel devalued, humiliated, are almost always represented by attor- If the death sentence were affirrned at cheated - and it's easy to understand why, neys throughout this process, frequently this initial review (perhaps four years or considering the enormous costs of achieving l~yfirst-rate volunteer lawyers. longer after the verdict), the process this outcome, and comparing Dahmer's Fotlrth, capital trials and the appeals would continue. In general, the likeli- crimes to those of other murderers who are [hat follow are typically far longer and hood of success diminishes at each occasionally put to death. more complex than those in other cases, successive stage of delense that follom~s

One of the classic statements of this position is by no ineans novel .. nor 1s 11 neglible, being by Justice Harlan, concurling in the judgment in htel-ally hat between life and death." See also. Reid v Co\~r.t,345 U.S.1, 77 (1956): "1 do not for esample, lii'oodsot~ itN Cnrolina. S28 U.S. concede that ~vhatever.process 1s 'due' and 280,305 (pluralit!. opinion) (1976'1. offe~~derfaced uith a [ine or pl-ison sentence ' Doliglas v C~~JOI-HI~,372 LiS. 353 (1963). 3ecessanly sat~sliesthe requiren~entsor the Murin~~v Gini-riano, 492 U.S. 1 (1989) constitution In a capital case. The distinction is A PERSONAL AET OF VENGEANEE, PROPERLY EXEEUTED, IS TIMELY, PASSIONATE, AND PERSONAl.

On the other hand, Dahmer might price of running a capital sentencing someday be executed. That possibility, THE HUMAN system. For every murderer who is presumably, is the only justification for executed there may be ten on death row this entire process. Perhaps his death AND FINANCIAL COSTS who will never be executed, and many would afford some satisfaction to the more who were convicted of capital Obviously, Jeffrey Dahmer is not relatives of his victims, but could that murder but not sentenced to death, or typical of defendants, and his satisfaction possibly make up for the tried for capital murder and convicted of trial would not be typical of capital trials. years of gratuitous agony they would lesser offenses, or charged with capital Most capital cases are simpler, cheaper, have endured? What they really want is murder but tried or allowed to plead and less promiscuously agonizing. The an end. On April 21, 1992, Robert Alton guilty to less serious charges, or acquitted scenario I have sketched shows what the Hams became the first person to be entirely. There are thousands of such death penalty can do to a homicide case, executed in California in twenty-five cases each year, and for each one we pay under extreme circumstances. Often years. The day before the execution, a some proportion of the added costs of an there are fewer steps to the process - or CNN television news report on the execution - less when the process is they are less carefully executed - for mother of one of the victims stated that aborted early, more the closer it ap- reasons that are as arbitrary and unfair as "[her] grief began nearly fourteen years proaches the ostensible goal. any other aspect of the system: because ago when her son Michael and his friend Estimates of the total cost of using the the defendant was inadequately repre- John Mayeski were killed by Robert Alton death penalty are exorbitant. In July sented, or, in the later stages of review, Hams. Over the years her pain has 1988, for example, the Miami Herald not represented at all. In general, cases gotten worse instead of better, as Harris' reported that since 1973 the state had that are less expensive and less excruciat- execution dates came and went." spent over $57 million on capital punish- ing than Dahmer's to begin with are The report quotes the mother as saylng: ment and executed eighteen prisoners, at subject to the same range of distorting "It's time that this particular case came to a cost of over $3.2 million a piece. In effects that I have described, but on a an end. It's been inhumane and terrible states with fewer executions, the costs smaller scale. anguish for the family members, and we per head are necessarily higher. In 1987, Although cases like Dahmer's are rare, want peace." the Kansas legislature rejected the death they are central to any discussion of And when would this final act take penalty for financial reasons. A budgetary capital punishment. These are the crimes place? There is no saymg. As of Septem- analysis prepared for the legislature for which there is the strongest consensus ber 1992, the average stay on death row estimated that the added expense would that the punishment should be death, for all prisoners executed since 1976 is be $10 million in the first year, and at and these are the defendants who are eight years and five months; for those least $50 million before the first execu- most likely to be sentenced to death - executed since 1989 it is more than ten tion took place several years down the and sometimes executed. It's important years, and many are on death row for ,,,Aluau. to consider the damage the death crimes that took place twelve years ago, Money provides a measure of the penalty can do in those situations in or longer, and yet they have no execution magnitude of an enterprise, and in this which we want it most. dates in sight.$ Probably, most death row case the measure is startling. Still, we are The financial cost of pursuing a capital inmates will never be executed. There is a rich country. We can afford to spend prosecution through to execution is high; no plausible way to estimate the likely $200 million or half a billion dollars a by all estimates, it is considerably higher delay for a defendant who is sentenced to year on death sentences, if we want to. than the cost of a non-capital murder death in 1992 and who is among the The personal and social costs of process conviction followed by imprisonment for minority of such defendants who are are not quantifiable, but they may be life.9But that expense - multiplied by destined for execution. The best descrip- harder to bear. ten, or twenty, or thirty executions a year tion is that he will remain in limbo and - captures only a small fraction of the his case will remain open indefinitely.

Vhese calculations are based on NAACP Legal M. Carey, "The Cost of Taking a Life: Dollars 'O See Francis A. Allen, The Decline of the Defense and Educational Fund, Deaih Row and Sense of the Death Penalty," 18 UC Davis LAW Rehabilitative Ideal, Penal Policy and Social U5.A., Spring 1993, and additional data Rmm~1221-1273 (1985); R.L. Spangenberg and Purpose, 4-8 (Yale Univ. Press: New Haven, prov~dedby courtesy of Ms. Kanma Wlcks, E.R. Walsh, "Capital Punichment or Life 1981); Franc~sA. Allen, "Criminal Justice, Legal research director of the NAACP Legal Defense Imprisonment? Some Cost Considerations," 23 Values and the Rehabilitative Ideal," 501. of Fund's Capital Punishment Project. The averages Loyola ofhs Angeles Law Review, 45-58 (1989); Ciim. L., Criminology G Police Sci. 226 (1959). gven exclude "voluntary executions" - cases In P J. Cook & D.B. Slawson, The Costs of Processing whlch a prisoner was executed zfter waiving an Murder Cases in North Carolina, Teny Stanford available avenue of review. Institute of Publ~cPollcy, Duke University. 48 THE UNIVERSITYOF MICHIGAN LAW SCHOOL I THE DEATH PENALTY IS NONE OF THESE THINGS.

systematic evidence that the death on issues of intent or sanity. VENGEANCE AND penalty for murder does deter homicide If capital punishment were restricted to a greater extent than lengthy prison to serial killers with bodies in the freezer, THE BUREAUCRATIC STATE terms. The best evidence suggests that it the question of possible errors might not Why would anyone even consider a has no effect on homicide rates, and a be very troubling. Obviously Jeffrey death penalty regime of the sort we now few studies hint that it might increase the Dahmer (or John Gacy or Ted Bundy) have? number of murders.12Second, belief in acted with malice and premeditation, There are two parts to the question. deterrence is not the basis for the posi- without provocation, and under no threat First: Why do so many people want the tion of most proponents of capital of personal danger. Moreover, most death penalty at all? Second: Having punishment. In one survey, for example, people probably don't care whether a chosen to use the death penalty, why when asked if they would continue to serial murderer is insane; they want him have we ended up with this Kafkaesque support the death penalty if it were killed just the same. But our death system to implement it? proved to have no deterrent effect, two- penalty laws are not restricted to the rare, The most telling answer to the first thirds or more of respondents said yes.I3 extreme, and bizarre murders. A capital question is the simplest and most natural: I have no difficulty understanding the trial is much more likely to involve an People want the death penalty for desire for revenge, even deadly revenge, addict who kills a checkout clerk at a revenge. especially in cases like Dahmer's - a convenience store. In that context, the Vengeance has an ambiguous position vicious predator who raped, tortured, jury's judgment may well turn on in our culture. In more liberal times, killed, and dismembered helpless uncertain and disputed evidence, or on many would disclaim revenge as a victims, some of them mere children. If a slippery interpretations. justification for punishment: it seemed relative of a victim did kill him, I would There is no obvious best way to avoid too cruel, barbaric, inhumane, selfish, feel a great deal of sympathy for that errors in criminal prosecutions. Our pessimistic. To many, vengeance is un- relative, and little, if any, for Dahmer. American adversarial system of adjudica- Christian. A liberal and civilized people But we do not allow relatives to avenge tion, for better or worse, relies heavily on should not seek revenge but improve- their dead, not even in egregious cases, procedural devices to guarantee fairness ment, of the offender or of society.1° Even and state-administered capital punish- and accuracy.15An accused has no now, in an increasingly conservative era ment is a poor vehicle for revenge.'+ particular right to a careful and thorough when revenge is regularly described as a A personal act of vengeance, properly investigation by the police. He does, justification for punishment, it is re- executed, is timely, passionate, and however, have rights to counsel, to named "retribution." The change is personal - the grieving father tracking remain silent, to privacy, to an impartial telling; it removes the subject from the down and killing the killer of his child. jury, to confront his accusers, to present description. Revenge is what the avenger The death penalty, in this society, is none a defense, and so on. These rights may be wreaks; retribution is simply what of these things. It is slow, passionless, implemented by judicial action at every happens to the wrong-doer. and impersonal, unreliable and rare. And stage - pre-trial, trial, post-trial, appeal, Revenge is not the only possible that brings us to the answer to the second collateral review. All this takes time, but justification for capital punishment. Most question: Why do we have the bizarre we can hardly deny these rights to those people who favor capital punishment also death penalty apparatus I have described? defendants who stand to lose the most believe that it deters homicide. Unlike Part of the problem is that we feel that simply because time (for a change) is on revenge, deterring killing is a universally we have to take great care to insure that their side. In the heat of the moment in acceptable objective." This would be a the death penalty is used fairly. The most some cases we may want to drag the powerful justification for the death basic concern is to avoid errors. Nobody culprit straight out and hang him. But penalty, if true. But it is not, in two wants a part in executing the wrong when that passion subsides we will still senses. First (although I will not describe person, or even the right person if the believe that those the state wishes to kill the evidence in this context), there is no judgment is marred by serious mistakes are entitled to at least the same level of

'' See, e.g.,P.C. Ellsworth and L. Ross, "Public l2 R. Hood, The Death Penalty: A U'o'orldwide "Deterrence or Brutalization: What is the Effect Opinion and Capital Punishment: A Close Pelspecrive, 117-148 (Oxford: Clarendon Press, of Executions," 26 Crime and Delinquency, 511 Examination of the Views of Abolitionists and 1989); R. Lempert, "Desert and Deterrence: (1980). Retentionis~s,"29 Clime and Delinquency, 116- An Assement of the Moral Bases of the Case for l3 Ellsworth and Ross (cited in note 11). 16 (1983); and Alec Gallup and Frank Newport, Capital Punishment." 79 Michigan Law Review " Lempert, 1981, 1185-1187. "Death Penalty Support Remains Strong, But 1776-1231 (1981); Zimring and Hawkins, l5 See Samuel R. Gross, "Loss of Innocence: Most Felt Unfairly Applied," The Gallup Poll News Capital Punishment and the Alneiican Agenda, Eyewitness ldent~ficationand Proof of Guilt," Setvice, Vol 56 No. 81, 3 (June6, 1991). 167-186 (New York: Cambridge University 16 Jou~nalof Legal Studies, 395-453 (1987). Press, 1986); and W,!. Bowers and G.L. Pierce, THE SYSTEM DOES PRODUCE WHAT THE PUBLIC OEMANOS:

procedural care and due process as other favor the death penalty are divided about efficiently) grab every person who defendants - and probably more. when and how to use it. As a result, life commits a murder and put them into a Factual errors are not the only prob- or death decisions may turn on the identity holding pen. After five years, we empty lem. Through the 19805, nearly 20,000 of the , the jurors, or the judge, out the pen and decide which of the people were arrested for or on their reactions to peculiar, incidental inmates to kill. System I has a harsh, Old annually; of these, fewer than 2 percent facts. For example, the most memorable Testament quality, but if you want were sentenced to death. Were these 200 fact of Robert Alton Harris's crimes is that revenge, it might seem right. The execu- to 300 people really the most heinous after he killed his two teenage victims, tion is a direct response to the murder. murderers we caught? Or were they he ate the hamburgers they had bought at System 11, however, is a closer approxi- chosen by chance, or, worse, because of Jack-in-the-Box. This incident was mation of what we actually do, and must some impermissible criteria - race, mentioned repeatedly in news stories do; but in this version the task is very poverty, the race of their victims, and so throughout the fourteen-year life of the different. It's not just the wait, it's the forth? Walter Bems, an articulate advo- case; it almost certainly influenced the jury process of choosing who will die and who cate for capital punishment, has summa- that sentenced him. How much does this will live: Death is now served by a rized the problem well: However strongly five-second sound bite tell us about Hams? repetitive, comparative, untrustworthy, one may favor the death penalty in Would he have deserved death any less if selection procedure. principle, its propriety in practice "depends he had eaten lunch before he kidnapped Judges and legislators are aware of this on our ability to restrict its use to the worst his hapless victims? arbitrariness and potential discrimina- of our criminals and to impose it in a Juries. Jury sentencing is uncommon tion. They have tried to curb these nondiscriminatory fashion."16 for non-capital crimes in the United problems by creating an array of elabo- The dangers of arbitrariness and States, but it is the rule in capital cases. rate procedural devices such as trial-like discrimination are not restricted to In other words, the hardest and most capital penalty hearings and post-verdict capital punishment, but they are at their discretionary sentencing decisions are "proportionality review" of death sen- worst in this context, for three reasons. made by ad-hoc panels of one-time lay tences. These procedures may or may not InJreq~tency. Again, if we limited the decision makers - hardly a process have any effect - they certainly are not death penalty to serial murders, we could calculated to minimize arbitrariness and entirely successful - but they do take probably do a decent job of identifying discrimination. And yet we believe that time. Moreover, the knowledge that capital homicides and imposing death jury sentencing plays an important rule death row prisoners may have been sentences uniformly. Instead, most in legitimating the death penalty, and unfairly or arbitrarily singled out makes death-penalty states select a small ensuring that its use reflects community judges move more carefully and less number of capital cases from a large and values." expeditiously on all other procedural amorphous range of death-eligble The sum of the effects of these forces points as well. crimes. Many are at risk, but few are is a depressing fact: Consistency in Perhaps executions could be speeded condemned. As a result, every potentially criminal sentencing is least likely in up somewhat. I can imagine that we capital case is subject to a series of decisions on life and death, where it could contrive to conduct most of them discretionary choices - by the police, matters most. Not surprisingly, there is within five years of arrest, rather than the prosecutor, the judge, the jury - a great deal of evidence that race and ten. We can't go much faster than that each of which might be based on hap- chance both play large roles in determin- without dismantling the procedural penstance or bias. ing who is sentenced to death in the structure of our system of criminal justice Salience. The death penalty is a United States, and who is spared.18 - a structure that was created largely to troubling and divisive institution. A Consider two stylized capital punish- protect defendants. This cuts strongly substantial minority (18 percent in a ment systems. System I: We grab every against the grain; it will not happen. 1991 Gallup and Newport poll) still person who commits a murder and Given that limitation, there is little oppose it in principle, and those who quickly kill them. System 11: We (equally incentive to accelerate the process at all,

l6 W. Bems, "Defending the Death Penalty," 26 In See D.C. Baldus, G.G. Woodworth, and C.A. 'O P.C. Ellsworth, "Attitudes Toward Capital Crime and Del~nqurncy,511 (1980). Pulaski Jr., Equal justice and the Death Penalty, Punishment. From Application to Theory," l7 Witherspoon v Illinois, 391 U.S. 510, 519 (1968.) (Northeastern Un~versityPress. 1990); S.R. a paper presented at the SESP Syrnpos~umon Gross and R. Mauro, Deaih and Disciimination: Psychology and Law, S~anlordU~nvers~ty, Racial Disparities in Capital Sentencing, October 1978. (Northeas~ernUnivers~ty Press, 1989) " H.A. Bedau, nze Deatlz Pe~zaltyin Amel-lca, a1 68 j9 Death Row U.S.A., cited in nole 8. (New York: Oxlord Un~versityPress, 1982) A WIDELY AVAllABlE DEATH PENALTY THAT IS RARELY CARRIED OUT. since even a fi.ve-year delay is enough to brush. When Robert Alton Hams was put weapon in the public arsenal; others favor gut the meaning of revenge. The man to death in April 1992, some observers the death penalty (with or without execu- you wanted to kill was he abusive speculated that the first execution in tions) simply because they do not believe robber, high on crack, who pistol California in a quarter of a century would that life imprisonment lasts for life.** whipped and shot two customers at a be the spark. Second, and more important, even those Seven-Eleven store in 1984. Instead, in This was hardly the first time that who do want executions do not want 1990, the state electrocutes a balding, massive executions have been predicted. many. Many Americans, perhaps a religious model prisoner in a neat blue It hasn't happened. I do not think it will majority, want some executions to take denim uniform. happen now either, although the rate of place as public statements about crime and The processes I have described feed executions is likely to move up a notch murder, but there is widespread aversion cln themselves, and on each other. To from twenty or thirty a year to forty or to the prospect of numerow executions. reduce errors in capital cases we generate conceivably fifty. That would be a change, A single execution is not truly an act of new procedures; these procedures must but only in degree, not in kind. Even at revenge but it looks like one; it syrnbohzes be followed in future cases, which fifty a year, executions would still the our desire and our willingness to seek increases delay. As executions are exception rather than the rule after a death vengeance. When we single out one delayed, they are increasingly drained of sentence - and they would still be slow, murderer we can focus on what he did to content as acts of revenge; as a result, it costly and unpredictable. deserve death. But if we were to conduct a is increasingly easy to accept further My basic argument why little is likely to hundred executions in close order, we delays, or to forego the killings alto- change has two parts. would lose any illusion of individual gether. As delays and reversals become First, support for the death penalty does vengeance; all we would see is mass more common, executions become not necessarily mean support for execu- slaughter by the state. The symbolism increasingly rare; :he more rare they are, tions. Public attitudes on criminal sentenc- would change; the issue would now be the the more likely it is that those who are ing are notoriously inconsistent. Several nature of our society, our culture. At a killed will be the victims of bias or researchers have asked people about their minimum, it would be a humhating caprice - and the more distasteful the attitudes toward perceived and actual comment on our failure to control violence task of singling out and killing the few sentences. The results show basic inconsis- by less bloody means; at worst it would who will die. Rising concerns about tencies between what we say we want, and provoke repulsive comparisons with Hitler discrimination and arbitrariness - and what we ourselves would actually do. In and Stalin. growing uneasiness with the whole the context of the death penalty, many say In short, appearances to the contrary process - in turn, generate new doubts, they are for "mandatory" death sentences notwithstanding, the death penalty we new procedures, and new delays. for certain crimes - killing a police have is pretty much the death penalty we officer, for example, or homicide in the want. The costs of the process are mostly course of a - but when gven an hidden from view. Politicians and judges actual sentencing decision, choose life grumble about the delays, but the system MORE OF THE SAME imprisonment as the correct penalty in just does produce what the public demands: a such a case.*%ugo Bedau has argued that widely available death penalty that is rarely At a glance, the death rows of America many of those who say they favor capital carried out. ,seem headed for a massacre. As of April punishment may want "only the legal threat 1993, there were 2,729 prisoners on death of the death penalty, coupled with the m rows in the United States, and about 250 judicial ritual of trylng, convicting, and new death sentences are meted out each occasionally sentencing a murderer to year.19Public support for the death penalty death, rather than achial esecutiolu."*' is intense, politicians fan the heat, and Some people, I expect, support capital condemned prisoners pile up like dry punishment in order to keep every possible

l2 Ellsworth & ROSS, 29 Cl~nzenltd Deiinq~tcncya1 Professor San~uelG~oss's interest iiz the death penalty dates back to his work as a criimiizal 151-52, (cited in note 11) (50 PercenL defense attonzey i71 San Fiancisco in the 1970;. He has wiitten extensively on the topic, agreed lhat "Even when a murderer gets a life sentence, he usually gets out on , so it is on the use ojespert ~ritnessesin litigation, and on settlement and tiinl pattelns iiz civil cnses. betterLo execute him." and 65% agreed- lhat "One He teaches Evidence, Clilninal Procedure, and courses on the we of social science in litigatioi~ advantage of the death penalty is [ha1 il makes it in~possiblefor conv~c~edmurderers to later go free on account of some legal teclinicalit)~.")