Pay Now, Execute Later

Now that the benchslapping of Texas courts over death penalty cases has become commonplace, here's a neat idea for a budget conscious Texas Legislature from Adam Gershowitz at the South Texas College of Law: "Pay Now, Execute Later: Why counties should be required to post a bond to seek the death penalty." He writes in the abstract:

When death sentences are reversed – and many of them are reversed for prosecutorial misconduct, ineffective assistance of counsel, and other reasons – local prosecutors are not forced to fully internalize the costs of their failed prosecutions. While counties make the decision to seek the death penalty, they do not have to fund the very expensive appellate and post-conviction stages of capital cases that are typically handled by state attorneys general's offices.

This paper proposes that state legislatures could improve the functioning of the death-penalty system, while simultaneously acting out of financial self-interest, by requiring counties to post (and possibly forfeit) a bond to seek the death penalty. Faced with the prospect of losing a bond if the capital prosecution fails at trial or on appeal, local prosecutors would have an incentive to choose their capital cases more carefully and to avoid any type of misconduct that might lead to reversal on appeal.

The prospect of forfeiting a bond also would create secondary benefits, such as encouraging prosecutors to protest the appointment of unqualified defense lawyers in order to stave off ineffective assistance of counsel claims. As a financial matter, the bond proposal should be appealing to state legislators because it would shift the exorbitant costs of failed capital prosecutions away from state budgets and into the hands of the county actors who instigated the failed prosecutions.

Why not? There's no question capital appeals are costing Texas taxpayers a pretty penny, especially when so many are being overturned down the line. Most of these come from a handful of counties, notably Harris, while everyone else in the state must pick up the appellate tab for a few DAs' prosecutorial decisions. I like the idea.

Hat tip to Sentencing Law & Policy and Z Legal Times.