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Get in the Game or Get out of the Way: Fixing the Politics of Death

In his insightful new paper, The Supreme Court and the Politics of Death, Professor Stephen Smith analyzes how the Supreme Court has floundered for more than three decades in a failed effort to eliminate the arbitrariness of the death penalty. As Professor Smith explains, the Court has politicized the death penalty and in doing so inadvertently stymied reform efforts. The general public believes capital punishment is reserved for the most heinous offenders while, in reality, the system is skewed in favor of death for those who have had the toughest lives and the worst lawyers. It is enough to leave an observer of the Court utterly despondent.

Yet Professor Smith sees cause for optimism in the Court’s renewed focus on substantive proportionality guarantees—namely the bans on executing the mentally retarded and juveniles—and the imposition of more rigorous standards for effective assistance of counsel. While I am in full agreement with his diagnosis of the problem, I part company with Professor Smith’s view that the Court’s latest approach might succeed where previous efforts have failed. To overplay a metaphor, the Court’s latest jurisprudence amounts to the Court dipping its foot in the water and making some waves. Those waves might be bigger than the ripples in years past, but they are nevertheless small and inconsequential. Moreover, the Court’s decisions keep the public focused on the actions of the judiciary and allow legislators to skate by without taking responsibility for the systemic flaws that pervade capital punishment. If the Court desires to eliminate the arbitrariness of the death penalty, it needs to either take a major step forward or get out of the way so that the political actors can take responsibility. The Court’s categorical exclusions and renewed focus on effective assistance of counsel follow neither of these approaches and thus stand little chance of eliminating the politics of death.

Rediscovering Dangerousness: The Expanded Scope of Reasonable Deadly Force After Scott v. Harris

Though the Supreme Court might think otherwise, it has yet to hear a case where a police officer used deadly force to stop a nondangerous fleeing suspect. The Court recently showed its belief to the contrary in Scott v. Harris, where it found that a fleeing suspect posed a sufficient danger to justify the use of deadly force. In order to reach that conclusion, the Scott Court distinguished Tennessee v. Garner, which had held that a police officer could not use deadly force to stop the fleeing suspect. Although the Scott Court never explicitly questioned Garner’sreasoning, the Court’s distinction implicitly demonstrated a fundamental flaw in Garner’s understanding of dangerousness. Scott showed that dangerousness is not confined to a suspect’s potential to commit crimes after escaping; dangerousness is just as great a concern during the escape itself.

United States v. Goliath

Criminal prosecutions of large organizations exhibit a unique power dynamic. The target organizations include goliaths—some of the largest corporations in the United States, including AIG, America Online, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co., and Monsanto. A U.S. Attorney’s office with its limited resources may look like a tiny David by comparison. But prosecutors have their slingshot: they wield the threat of an indictment, which results in potentially catastrophic collateral and reputational consequences to a corporation. Yet it is a threat that prosecutors can ill afford to carry out due to those consequences. The détente resulting from the collision of those oversized forces has taken a surprising turn, perhaps because there was nowhere else to turn—from criminal prosecution towards structural reform. By that I mean that prosecutors adopted a strategy to avoid an indictment and a conviction by entering into detailed compliance agreements with organizations. In one example of a demanding structural reform agreement, KPMG International, charged with marketing illegal private tax shelters, agreed to shut down its private tax practice, to cooperate fully in criminal investigations of former employees, and to hire an independent monitor for three years to implement an elaborate compliance program.

In my piece, “Structural Reform Prosecution,” I present a picture of why and how federal prosecutors now enter into such agreements supervising the rehabilitation of these goliath organizations. The Article examines the agreements’ origins, goals, terms, and the broader legal and institutional setting, including through empirical analysis of the agreements entered after the Department of Justice (“DOJ”) announced its new approach in January 2003. While hue and cry over organizational prosecutions have focused on privilege waiver and employer payment of attorney fees, those two issues just scratch the surface of the complex problems that these massive efforts raise. I hope here to draw attention first to a series of problems raised by how these agreements define compliance and second to the multi-polar context in which these agreements are entered. “Structural Reform Prosecution” concludes by posing questions for future work. I expand on that discussion here by proposing reforms that, from different perspectives, address some of the difficult issues that these agreements raise.

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