The Academy for Justice has recent­ly released a new four-vol­ume study, Reforming Criminal Justice, fea­tur­ing research and analy­sis by lead­ing aca­d­e­mics and a wide range of pro­pos­als for crim­i­nal jus­tice reform. The project, fund­ed with a grant from the Charles Koch Foundation and pro­duced with the sup­port of Arizona State University and ASU’s Sandra Day O’Connor College of Law, con­tains more than fifty chap­ters cov­er­ing a wide range of sub­jects with­in the areas of crim­i­nal­iza­tion, polic­ing, tri­al pro­ce­dures, and pun­ish­ment — includ­ing a chap­ter on Capital Punishment by renowned death-penal­ty schol­ars Professors Carol S. Steiker (Harvard Law School) and her broth­er, Jordan M. Steiker (University of Texas School of Law). The Steikers — authors of the crit­i­cal­ly acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the chal­lenges in reform­ing the insti­tu­tion of cap­i­tal pun­ish­ment, which they describe as being ​“in a state of flux and fragili­ty.” They attribute the near ten-fold decrease in new death sen­tences since 1996 and the near 70% decrease in exe­cu­tions since the peak in exe­cu­tions in 1999 to ​“grow­ing con­cerns about the fair­ness, accu­ra­cy, and effec­tive­ness of the cap­i­tal jus­tice process across the United States.” The Steikers point to endem­ic arbi­trari­ness and unfair­ness result­ing from the wide dis­cre­tion afford­ed to pros­e­cu­tors and juries in death penal­ty cas­es. Prosecutorial dis­cre­tion, they say, has pro­duced ​“wild­ly diver­gent cap­i­tal charg­ing deci­sions” between pros­e­cu­to­r­i­al offices, mak­ing geog­ra­phy, rather than the cir­cum­stances of a mur­der, the chief deter­mi­nant of whether a case is cap­i­tal­ly pros­e­cut­ed. In turn, they say, the prac­tice of ​“death-qual­i­fi­ca­tion” allows pros­e­cu­tors to exclude jurors who oppose cap­i­tal pun­ish­ment, and the jurors who are empan­eled in cap­i­tal cas­es exer­cise the broad dis­cre­tion they are afford­ed to pro­duce unfair sen­tences dis­pro­por­tion­ate­ly influ­enced by irrel­e­vant fac­tors such as race and gen­der. The Steikers also chal­lenge the notion that the reduced use of the death penal­ty means it is being used more effec­tive­ly when it is imposed. They say that the death penal­ty is not lim­it­ed to ​“the worst of the worst,” and so lacks mean­ing­ful ret­ribu­tive val­ue, while its con­tin­u­ing arbi­trari­ness impedes any arguable deter­rent effect. Indeed, they say, offend­ers with men­tal ill­ness are dis­pro­por­tion­ate­ly rep­re­sent­ed on death row and con­tin­ue to be dis­pro­por­tion­ate­ly exe­cut­ed, despite wide­spread pub­lic sup­port for exclud­ing the severe­ly men­tal­ly ill from the death penal­ty. They fur­ther ques­tion the accu­ra­cy of death-penal­ty ver­dicts, cit­ing research that esti­mates more than 4% of those sen­tenced to death may be actu­al­ly inno­cent. The Steikers argue that these sys­temic issues are ​“dif­fi­cult to ade­quate­ly address through con­sti­tu­tion­al reg­u­la­tion or leg­isla­tive reform,” con­clud­ing that ​“the most appro­pri­ate path for­ward may well be mora­to­ri­um or repeal, solu­tions embraced by a grow­ing num­ber of juris­dic­tions.” For states that opt to retain cap­i­tal pun­ish­ment, they rec­om­mend three major pol­i­cy reforms: the estab­lish­ment of cap­i­tal defense offices at all lev­els (tri­al, direct appeal, and state post­con­vic­tion) to ​“improve the deliv­ery of cap­i­tal rep­re­sen­ta­tion ser­vices” in com­pli­ance with the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; cen­tral­ized state-wide charg­ing process­es to com­bat the politi­ciza­tion of the death penal­ty by local pros­e­cu­tors and the result­ing geo­graph­ic arbi­trari­ness in its appli­a­tion; and the adop­tion of leg­is­la­tion to exclude peo­ple with severe men­tal ill­ness from cap­i­tal pros­e­cu­tion and execution. 

(“Reforming Criminal Justice: Bridging the Gap Between Scholarship and Reform,” A Report of the Academy for Justice, E. Luna, edi­tor, Arizona State University, release date October 26, 2017; E. Luna, ​“A Message from the Editor and Project Director,” C. Steiker and J. Steiker, ​“Capital Punishment,” in Vol. 4, ​“Punishment, Incarceration, and Release.”) See Representation. See Books, Arbitrariness, and Mental Illness.

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