Legal Scholarship: A Proposal for Greater Prosecutorial Accountability

To rein in the social and eco­nom­ic costs caused by the over­ly aggres­sive use of the death penal­ty by pros­e­cu­tors, a California legal schol­ar is propos­ing a plan he believes will reduce mis­car­riages of jus­tice and increase prosecutorial accountability. 

In Shrinking the Accountability Deficit in Capital Charging, a new chap­ter in the 2020 Oxford Handbook of Prosecutors and Prosecution, UCLA law pro­fes­sor Sherod Thaxton (pic­tured) argues that to tem­per the unfet­tered dis­cre­tion local pros­e­cu­tors now enjoy in cap­i­tal charg­ing deci­sions, states should estab­lish advi­so­ry boards to issue opin­ions on whether the death penal­ty should be pur­sued in a par­tic­u­lar case. If the pros­e­cu­tor decides to seek death despite an adverse advi­so­ry rec­om­men­da­tion, Thaxton pro­pos­es shift­ing the finan­cial costs asso­ci­at­ed with the case to the local juris­dic­tion as a means to hold pros­e­cu­tors finan­cial­ly account­able for their decisions.

Professor Thaxton begins his analy­sis by not­ing that the high statewide costs of cap­i­tal pun­ish­ment are dri­ven dis­pro­por­tion­al­ly by over­ly aggres­sive use of the death penal­ty by a small num­ber of out­lier juris­dic­tions, despite ​“sharp crit­i­cism from both legal ana­lysts and offi­cials in every branch of gov­ern­ment.” These out­lier juris­dic­tions, he says, con­tribute to most of the death sen­tences and exe­cu­tions in the coun­try, but also have high­er rates of error and con­tribute to high­er costs for the admin­is­tra­tion of jus­tice. In addi­tion, Thaxton says, the over­pur­suit of the death penal­ty ​“may increase crime, decrease the like­li­hood of arrests for homi­cides, and lead to height­ened risks of mis­car­riages of jus­tice for non‐capital defendants.”

Given the out­sized impact of these out­lier juris­dic­tions, Thaxton argues, “[d]iscouraging the over­ly aggres­sive use of the death penal­ty by pros­e­cu­tors may be the most effec­tive (and effi­cient) way to reduce the over­all preva­lence of error in cap­i­tal charg­ing-and-sen­tenc­ing sys­tems, as well as unnecessary expense.”

Thaxton notes that the prac­tices of these juris­dic­tions are out of step with the views of the broad­er com­mu­ni­ty that is forced to absorb the costs. Public sup­port for cap­i­tal pun­ish­ment is at its low­est point in recent his­to­ry, he writes, ​“influ­enced, in part, by a volu­mi­nous schol­ar­ly lit­er­a­ture that con­sis­tent­ly reveals not only ram­pant arbi­trari­ness and capri­cious­ness (i.e., the death penal­ty is not reserved for the ​‘worst-of-the-worst’ as the U.S. Constitution requires), but also racial/​ethnic, gen­der, and geo­graph­ic bias in cap­i­tal charg­ing, sen­tenc­ing, and rever­sals on appeal.” 

Thaxton pro­pos­es ​“a rel­a­tive­ly mod­est reform that may be espe­cial­ly effec­tive in shift­ing some of the finan­cial and admin­is­tra­tive costs of inad­e­quate charge screen­ing, while still allow­ing pros­e­cu­tors to retain dis­cre­tion in seek­ing the death penal­ty.” A review­ing body would pro­vide an advi­so­ry opin­ion for cas­es in which the pros­e­cu­tor wish­es to seek a death sen­tence. If the screen­ing com­mit­tee advis­es against a cap­i­tal pros­e­cu­tion, the local juris­dic­tion would be respon­si­ble to pay an increased per­cent­age of court costs if the case is lat­er resolved by plea or if the case is reversed at a lat­er stage. If a plea deal is reached lat­er in the process, the local juris­dic­tion would be respon­si­ble for pay­ing a larg­er per­cent­age of pre-tri­al and tri­al costs. If a death penal­ty is sought and obtained after a neg­a­tive rec­om­men­da­tion, the local juris­dic­tion would pay a per­cent­age of appel­late court costs if the con­vic­tion or sen­tence is reversed.

Thaxton’s pro­pos­al also would require tri­al pros­e­cu­tors to par­tic­i­pate in the appeals of the case. He argues that such par­tic­i­pa­tion is cru­cial because it is cur­rent­ly ​“polit­i­cal­ly prof­itable for pros­e­cu­tors to (over)produce death sen­tences because they ben­e­fit from death sen­tences and do not have to inter­nal­ize the costs of these legal errors, irre­spec­tive of whether those con­vic­tions are obtained while vio­lat­ing the statu­to­ry and con­sti­tu­tion­al rights of defen­dants.” He seeks to have tri­al pros­e­cu­tors inter­nal­ize the cost of rights vio­la­tions by “[i]dentifying pros­e­cu­tors, by name, whose mis­takes cause rever­sals and requir­ing them to appear in the brief and in court as coun­sel of record in all appellate proceedings.”