The American Execution Queue

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Stanford Law Review, Forthcoming

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Lee Kovarsky
executions; death penalty; death sentence; criminal procedure; institutional design; capital sentencing
paper description
The modern death penalty presents a puzzle: law and norms heavily constrain how American jurisdictions impose death sentences, but not how they select death-sentenced inmates for executions. In this Article, I explain why this strange void persists, argue that its presence undermines equality, and offer workable institutional responses. In short, I advance a comprehensive theory of the American execution queue—the process by which death penalty jurisdictions decide which condemned inmates will actually die. My first objective is explanatory. Because executing a death-sentenced inmate now entails both significant litigation and extensive coordination among under-motivated state institutions, the process takes ten times as long as it did fifty years ago. Modern executions have become “scarce,” as American jurisdictions simply cannot kill all of their condemned offenders. Even though the state must make choices, there are no rules for choosing. Because there is little consensus around decision-making criteria, the process operates with few constraints. By the time the state must decide which condemned inmates to execute, the capacity of familiar decision-making criteria to meaningfully sort inmates by death-worthiness—things like offense conduct, blame, or future danger—has been exhausted during prior phases of the capital punishment sequence. My second objective is normative. I specify several preferred institutional design strategies, anchored to interests in legitimacy, transparency, fairness, and equality. First, jurisdictions should centralize the process by which they select death-sentenced inmates for executions; localities should have no role in setting execution dates. Second, a centralized entity should engage in administrative-law-like rulemaking in order to develop transparent, legitimate selection criteria. Third, jurisdictions should separate the power to determine execution priority from the power to schedule execution dates. By shifting to a centralized process grounded in transparent rulemaking and rational decision-making criteria, jurisdictions can curb the arbitrariness that plagues the existing system.