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The major objective of death penalty supporters in the 1990s was to cut down the delay between death sentences and execution. The story of this crusade is an important chapter in American constitutional history. The 200 death sentences a year are an impossibly tiny fraction of the multitude of felony convictions recorded each year in the United States, and the 3700 prisoners on death row in 2002 are less than one-tenth of 1 percent of sentenced felony offenders. But death penalty cases are unique in American criminal justice and have provoked a sustained attack on judicial principles and processes over the last twenty years that carries important consequences throughout the criminal justice system.

The most serious criminal punishment available for the vast majority of felons is imprisonment, confinement in coercively controlled institutions for a duration that can range from a few months' time to the remainder of an offender's life. The ordinary legal process after a defendant is convicted and sentenced to prison is that confinement to prison begins during any appeals the defendant might wish to pursue. Even when the defendant can stay out of prison during a first appeal, the prison sentence will start prior to any processes of collateral attack such as habeas corpus, the postconviction reexaminations that may take years to resolve. In these circumstances, the appellate process might seem a nuisance to the prosecutor and does carry some risk of frustrating the prosecutor's objectives if the defendant should win a reversal of his conviction, but the judicial review itself does not stop the state from imposing the prison sentence. The punishment itself is not postponed by the process of appeal.

Prosecutors seek death penalties when they believe imprisonment alone is insufficient punishment for a particular offender. But there is no way that a death sentence can be carried out while any significant question remains about its legal propriety. So the state's special penal purpose in death cases--the execution of the offender—must be postponed until all appeals are finished.

For defendants who wish to avoid or postpone execution, the best method to stave off the executioner is to keep the process of appeal going forever. The fact that all state court remedies must be exhausted prior to the start of the all-important federal court review process plays into this strategy quite nicely. The defense attorney's duty in cases where his or her client wishes to avoid execution is to manipulate the system by all lawful means to postpone execution.

For a prosecutor who is intent on seeing the death penalty consummated, the lengthy appellate process becomes a major frustration and the object of resentment, because as long as the defendant's appeals continue, the state's penal objective cannot be achieved. In these circumstances, state lawyers will see any delay of execution as a victory for the prisoner and a defeat for the prosecution. The power of judges to prolong the process during the multiple appeals throughout the state and federal courts is resented in death cases because it cheats the state of its penal objective. When this happens, the legal system itself becomes an enemy of the state's lawyers, and the appeals process becomes a target of attempts to minimize the power of appellate tribunals, to speed the path through appeals, and to reduce the power of judges to review issues that could have been raised and considered at some earlier point in the process. Prosecutors grow angry at the courts and conclude that federal judges and capital defendants are making common cause of putting off executions.

What is singular in this conflict is that the appellate process itself becomes the state's enemy, and judges and legal standards can provoke high levels of anger and hostility. In this conflict, it is the agents of the state punishment authority, not least the state's lawyers, who see vindication in the execution process. They are in pursuit of their own version of closure by lethal injection, and they are often furious when judicial delay postpones the meaningful victory that execution represents. With this mindset, lawyers in public employment can become distrustful of the judicial process and cease to identify with the objectives of legal appeals.

This systematic tendency for delay to make prosecuting attorneys into enemies of the appellate process goes far beyond the usual tensions that adversary competition generates in litigation. The need to win in criminal trials may foster a resentful zero-sum game between prosecuting and defending lawyers in the adversary system, but this usually does not make the officers of the judiciary or the legal process itself into enemies of criminal prosecution. Other criminal appeals generate adversarial tension between prosecutors and defense lawyers; the death penalty generates special adversarial tensions between prosecutors and the appellate process. The state's lawyers view the judicial process as their enemy.

A further frustration of the death penalty system is the pressure that last minute litigation puts on appellate court judges. Judges, particularly judges in courts of last resort, are not fond of being the target of criminal appeals that are only moments removed from a scheduled execution. Many justices on the U.S. Supreme Court developed a particular distaste for the eleventh hour filing of legal motions that are quickly appealed to the federal circuit courts and on to the Supreme Court as the only hope of securing a delay of execution. This practice, which a committee headed by Justice Powell disdainfully called "last-minute litigation" was a major source of discomfort for justices, who were put on the spot by having to rule on motions made in the time just prior to an execution.

For a Supreme Court justice, last-minute death penalty litigation is a public relations disaster. If the last-minute motion is rejected by the U.S. Supreme Court, the judges become the last step before the execution and its apparent cause. (The headline reads, "Smith Executed after Supreme Court Rejects His Appeal.") If a delay of execution is granted, then the highest federal court can be blamed for frustrating the punishment process ("Last-Minute Stay Halts Execution"). So there is either blood on the hands of justices when they refuse to act or blame for the frustration of state criminal punishment if the justices decide to order further legal reviews.

One natural reaction to the discomfort of this dilemma is resentment of those prisoners and lawyers who put the justices on this hot seat. Judges and committees speak of the abusive or manipulative use of federal courts with the clear implication that such last-minute writs should not be filed. But the problem here is that a conscientious lawyer will always file a writ if there is nothing else that presents any hope for the condemned client. When a lawyer has an honest belief that an execution will be unlawful, only a constipated conception of legal ethics would argue against a last-minute appeal that has any chance of putting off an execution. Thus, the only hope for protecting judicial image and avoiding the pressure of eleventh-hour writs by deterring any last-minute appeals is to make such appeals literally hopeless, to structure a set of legal rules that cannot produce a remedy, no matter what the claim. . .

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