Shrinking the Accountability Deficit in Capital Charging

52 Pages Posted: 15 Oct 2020 Last revised: 16 Oct 2020

See all articles by Sherod Thaxton

Sherod Thaxton

University of California, Los Angeles (UCLA) - School of Law

Date Written: December 20, 2018


The price of capital trials, appeals, and clemency proceedings have skyrocketed since the U.S. Supreme Court lifted its moratorium on the death penalty, but this has not translated to more reliable case outcomes—the rate of serious reversible error and wrongful convictions has steadily increased during the same time period. The overly aggressive use of the death penalty by prosecutors has not only been convincingly linked to these high reversal rates, but may also increase crime, decrease the likelihood of arrests for homicides, and lead to heightened risks of miscarriages of justice for non‐capital defendants. It follows that limiting hawkish prosecutorial decision‐making in potentially capital cases may be particularly effective in reducing the prevalence of error and reducing unnecessary expense. Curbing the virtually unfettered discretion of prosecutors is not a new idea, but extant proposals tend to suffer from shortcomings that are likely to render them impractical or ineffective. Any viable legal intervention must increase prosecutorial accountability for inadequate charge‐screening in capital cases while still permitting prosecutors to retain discretion in seeking the death penalty. This essay describes a reform that consists of two primary components: (1) an advisory (i.e., non‐binding) opinion from a reviewing authority assessing the appropriateness of a prosecutor’s decision to seek the death penalty in a case based on the totality of evidence, and (2) financial and administrative cost-shifting mechanisms capable of disincentivizing prosecutorial overreaching in capital charging.

Keywords: capital punishment, death penalty, prosecutorial discretion, plea bargaining, miscarriages of justice, wrongful convictions, reversible error

Suggested Citation

Thaxton, Sherod, Shrinking the Accountability Deficit in Capital Charging (December 20, 2018). The Oxford Handbook of Prosecutors and Prosecution, Ronald F. Wright, Kay L. Levine & Russell Gold, eds., Oxford University Press, 2020, UCLA School of Law, Public Law Research Paper No. 20-29, Available at SSRN:

Sherod Thaxton (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
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Los Angeles, CA 90095-1476
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