Expediting Death: Repressive Tolerance and Post-Conviction Due Process Jurisprudence in Capital Cases

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The legitimacy of capital punishment has long been intertwined with the integrity of the procedures for its imposition including opportunities for review on appeal and in collateral hearings. Proposed legislation would dramatically abbreviate the habeas process in capital cases. The proposed bills which would accelerate the imposition of death sentences are matched by an increased willingness by courts to employ summary proceedings to expedite habeas procedures. This acceleration in the imposition of death sentences is part of the larger picture in which capital cases receive different and less favorable constitutional treatment than other criminal or civil cases.

This article draws upon Herbert Marcuse's theories to suggest that capital punishment is founded on repressive legal doctrines and has been made tolerable to the American public by the judicial and media crafting of perceptions. The current system of execution exists only because the courts and the public are willing to tolerate conviction-prone juries, certain levels of geographic and racial arbitrariness in the imposition of the penalty, and a measure of pain in its infliction. The modest amount of post-conviction procedural protection afforded to the condemned has also been accepted with little question. A common perception is that death row inmates delay their executions by quibbling about procedural niceties and other errors - that they are accorded too much justice before they are killed, rather than not enough.

The focus of this article is on the rules and procedures that have been created in capital cases to expedite death. It suggests that the rules and methods of expedition - ranging from state statutes and federal court rules to ad hoc judicial decisions that order accelerated briefing - are far from simple procedural adjustments. Collapsing the time for adjudication of capital habeas cases has a powerful impact. Death row inmates, who have no right to counsel, who are generally uneducated, and who must psychologically prepare to die, are forced to comprehend several supremely complex areas of law, all within an accelerated time frame.

While the article submits that the only sensible solution to the defects of the capital conviction, sentencing and post-conviction process is abolition of the death penalty, it recognizes that this remedy is currently unreachable. Alternatively, the article suggests procedural due process challenges to expedited procedures in capital cases which may assist death row inmates and their counsel in playing for time when they are playing for keeps.

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University of Missouri-Kansas City Law Review