This Article argues that because prosecutors have discretion to seek the death penalty and too many cases, they lack the incentive to police themselves and choose carefully. Put simply, because there are too few legal constraints - and virtually no political constraints - on the sheer number of cases in which prosecutors can pursue the death penalty, the Government is not under sufficient pressure to limit its use of capital punishment to only the most heinous cases. As a result, two things happen. First, the death penalty is sought and meted out in some cases, which though terrible, are no worse than the thousands of other murder cases in which prosecutors pursue only life imprisonment. Second, because prosecutors file too many capital cases, the criminal justice system lacks the resources to focus sufficient attention on each one. Because defense lawyers, almost all of whom are appointed, are spread too thin, they are often unable to follow all of the legal and factual leads that might convince a jury to reject the death penalty.
Adam M. Gershowitz,
Imposing a Cap on Capital Punishment,
72 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol72/iss1/6