Grand Finality: Post-Conviction Prosecutors and Capital Punishment
Chapter in Final Judgments: The Death Penalty and American Law, Austin Sarat, ed. (Cambridge University Press, Forthcoming)
Northeastern University School of Law Research Paper No. 267-2016
60 Pages Posted: 15 Jun 2016
Date Written: 2016
Abstract
In the years since the United States Supreme Court permitted reinstatement of the death penalty, scholars have paid close attention to the question of why prosecutors charge a crime as a capital offense. But the scholarly community has largely ignored some related questions. Why do many prosecutors assigned to handle the appellate and post-conviction phases of a capital case — those entrusted with the task of defending death — fight tooth-and-nail to preserve the trial outcome? Even more, why might those prosecutors reject defense overtures to join in a request for an evidentiary hearing or new trial in situations where they had nothing to do with the original charging decision and have misgivings about the propriety of the trial proceedings?
As this author has discussed in depth elsewhere, these reactions may be influenced by a range of professional, political, and psychological factors. This Chapter asserts that another explanation should be added to the mix in the capital context: how the value of “finality” plays a key role in prompting prosecutors to neglect to reexamine convictions. A prosecutor’s customary belief in the need for finality in the litigation process is heightened in the capital punishment context, generating what the author deems a search for “grand finality.” The idea that disputes must at some point reach a final resolution in order to achieve peace for litigants, victims, and witnesses, and to make room in the system for new disputes, takes on added significance in a death penalty case because the prospect of true finality is attainable. As others have famously noted, there is no appeal from the grave. A post-conviction prosecutor striving for finality may ignore a defendant’s legitimate demand to re-open a capital case. This can prolong injustices — and help produce wrongful executions.
Keywords: death penalty, capital punishment
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