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Tuesday, November 29, 2005

The Court of Death

When I saw Jason Mazzone's post on Concurring Opinions, complaining that the Supreme Court Justices don't take more cases, I was and remain skeptical. Orin Kerr has largely pre-empted my own thoughts, namely that it is hard to consider the question of increased docket size in the abstract (what cases should the Court have taken?) and also that unanimous or short opinions are highly over-rated. The important audience for Supreme Court opinions is not nerdy law students, eager bloggers, or the general public-- it is lower-court judges, their clerks, and the lawyers who must litigate before them. More pages in the opinion are probably better than less, as often as not.
But I was even more interested to read Doug Berman's and Mike's reply about the Court's Crim Pro cases, where both complain that the Court is too busy for questions like Booker retroactivity because it spends so much time on extremely narrow death penalty cases.

I personally do not share the view that "death is different" in kind than other sorts of criminal punishment, and I think the common obsession with making sure every state execution is procedurally and substantively flawless is a massive waste of resources that should be spent on making sure that fewer people are wrongfully sent to prison. But obviously not everybody agrees with my views, and a great many people think it is important to make sure a whole lot of judges sign off before a state is allowed to kill somebody.

So. Why not create a specialized court to handle death-penalty cases? As I understand the typical proposals to create specialized subject-matter courts, the idea would be to withdraw final jurisdiction from the Supreme Court and instead create a separate Article III appellate court that could do the work. I am pretty sure this is constitutionally permissible, but it would also presumably be permissible to simply eliminate SCOTUS's death penalty jurisdiction and create the "court" as a part of the executive branch to govern exercise of the pardon power. (The pardon court is a little more institutionally complicated for federalism reasons.)
Anyway, such a court would presumably consist of a mix of death-penalty supporters and opponents, many of whom would have a large degree of criminal trial experience, and they could deal with the ever-complicated jurisprudence of death and free up the Supremes-- who have no particular expertise in the area-- to play around with the vagaries of Colorado River abstention.

I am normally dubious of specialized courts because I fear technocrats, but I think the usual worries here are reduced. The chance of interest group capture here seems comparably small because of the salience of the issue and because it isn't obvious who would be the potential captors. So. Why not?

Posted by Will Baude on November 29, 2005 at 01:00 PM in Criminal Law | Permalink


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And aren't past experiments (the Fed. Circuit, the Tex. Ct. of Crim. Appeals) generally viewed as mistakes?

Are they in fact viewed as mistakes? I didn't realize that to be the case. I think the Fed. Circuit is a bad idea, but I would have thought that the factors that lead to that wouldn't necessarily apply here. I am generally very skeptical of specialized courts though.

Washerdreyer: There would be Article III review, it simply wouldn't take place in the Supreme Court. Either Article III appellate courts would send appeals to an Article III Death Super-Appellate Court, or they would send them to an Article II pardon death court. Either way, Article III review takes place. You could argue that the pardon commission court violates Hayburn's Case, but I tend to think the special-ness of the pardon power makes this relevantly different.

Posted by: Will Baude | Nov 29, 2005 8:45:03 PM

Long Supreme Court opinions (and multiple concurring opinions) are as troublesome for law clerks and lower-court judges as for anyone else -- particularly overworked and overwhelmed district courts and district court law clerks.

Death cases raise many of the same issues that other habeas appeals raise, so I don't think a separate court would be particularly efficient. I also think that having death cases on the docket helps put other cases in perspective. It also helps, intellectually, to have to think through the issues in that most extreme circumstance.

And aren't past experiments (the Fed. Circuit, the Tex. Ct. of Crim. Appeals) generally viewed as mistakes?

Posted by: cpmp | Nov 29, 2005 7:40:44 PM

Can you say a little bit more about the jurisdictional issues? That is, while I agree that a different Article III court could be created which would have ultimate jurisdiction over death penalty issues, I don't see why it's accetpable to not have Article III review, at least of cases that reach the Federal courts in particular ways (8th Amendment claims, habeas corpus claims, anything else trying to vindicate a Federal right).

Posted by: washerdreyer | Nov 29, 2005 4:49:32 PM

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