Professor Berman periodically laments (most recently here, but it's a recurring theme) the over-attention to the death penalty by folks interested in criminal law, including the Supreme Court, activists, professors, and (especially) the media. In the good professor's opinion, non-capital criminal law issues are given short shrift, especially in proportion to their numbers: There are over two million people in prison nationwide, and only a few thousand on death row. Yet death cases get much more notice. I thought I would offer a few suggestions for why this might be the case. I'll note that these are just the first common sense reasons to spring to mind; I hope you'll suggest other reasons I've omitted.

Also, I'll list these roughly in order from least probable to more probable. That is, the first ones listed are ones on which I think few people base their attention on death cases. The later ones, I feel, are more likely to be widely held, and, I think, are the major reasons for the over-attention to death cases. Note that I'm not trying to make a normative judgment here, at least not overtly.

Pure results-oriented consequentialism. In other words, the only thing that matters is how many people are executed. Under this reasoning, the Supreme Court's death-heavy docket is driven solely by the Justices' desires to see more or fewer people die. Likewise, a newspaper editorial writer would write in support of the death penalty just because he wants to cover more executions, regardless of whether innocent people ever get executed. And some organization like the ABA issues reports critical of the administration of the death penalty solely because it wants fewer executions (and not because it wants a "fairer" death penalty system). To be sure, I think some (most? all?) criminal law folks care some about the number of executions, and want either more or fewer. But I just don't think that, for most people, it's the only concern they have. And, if the Supreme Court cared only about numbers, it would write opinions that would influence the lower courts in their preferred direction more blatantly. For example, if the only thing the Court cared about were the number of executions, I think Ring would have been written a lot differently.

Death cases are more interesting. Capital cases often do have facts that could come right out of a thriller mystery novel. But many death cases are, in the grand sweep of all criminal cases, kind of banal. It was no accident that Justice Blackmun chose a case concerning, to quote Justice Scalia, "one of the less brutal of the murders that regularly come before us," in which to issue his famous "I no longer shall tinker with the machinery of death" dissent. And recently, Prof. Berman discussed a very interesting case in which the defendant got five life sentences for writing bad checks! Moreover, so many death cases turn on legal nuances that don't even depend on the facts. So I don't think factual attraction can explain all the attention paid to death cases. I say below that I think death cases are often more explainable, but that doesn't always mean they're interesting.

Lawyering. Another possible reason is that capital cases might get outsized attention is that capital cases attract excellent lawyers. Whereas some poor sap sentenced to 40 years' imprisonment is unlikely to see a lawyer after direct appeals are final, death row inmates become causes celebre. Most (all?) death states give death row prisoners statutory entitlement to lawyers even on habeas. All those lawyers might mean (a) more publicity, if the lawyer wants to be a media-hound, or (b) greater chances that a cert petition would be granted, given the long odds against getting a pro se case on the Supreme Court argument calendar. I'm not sure how much I would attribute to this factor, but I know if I were convicted of a crime and needed the Supreme Court to take my case, I'd rather have a lawyer than go it alone.

Judging. Well, if I can't blame lawyers, what about judges? In contrast to civil cases, criminal cases have an additional stage of review in habeas corpus. And that gives two chances for judges to screw something up (or for judges to correct error), and two chances for a case to get some publicity. One direct appeal example that come quickly to mind is from Florida, via Abstract Appeal. On habeas, reversals are less common, but with the imminence of execution dates, the stakes get higher. Compare this to a civil case like this week's Scheidler v. NOW decision: that case was a "marathon" because it took nineteen years to resolve. In some states, capital cases that take nineteen years to resolve are called "the fast track." All that time, all those rounds of litigation, lead to more chances for someone in the media to notice, or for the Supreme Court to find something certworthy, especially because it gives more judges more chances to get reversed. (Granted, the Supreme Court does not technically sit as a court of error, but it is well known that the Court reverses more cases than it affirms.)

Expertise. Supreme Court Justices and reporters are human. Both have some selectivity over their "docket." While the media doesn't get to choose the pool of cases it can cover, it certainly chooses among the ones the Supreme Court offers. This week's arguments in the Anna Nicole Smith case got a lot more media attention than the arguments in a state tax/dormant Commerce Clause case and a sovereign immunity/admiralty case. (Please, no jokes about "floatation devices.") While we can hope that the Justices are able to comprehend complex cases, it would be understandable if they had a subconscious tendency to choose capital cases because they understood those cases a little better. Of course, it's self-fulfilling -- if they keep granting so many death cases, they'll just understand them better, and leave less time and attention for other cases, repeating the cycle. The motivations of the media are even more apparent. They want to write about the "sexy" case, something they can distill into a few sentences, even if they lose accuracy in the process. For the media, death penalty cases are mini-morality plays. Plus, reporters have to keep their viewers and readers in mind, and the fact is that the public is more interested in "CSI: New York" than "ERISA: Dover."

All of the factors listed above, I think, play into the reality that death cases are overrepresented in the media (including the blogosphere), the public mind, and on the Supreme Court's docket. But I think two other, somewhat related, factors are the most important reasons.

Symbolism. I remember about five years ago when, just before Tim McVeigh's execution for the Oklahoma City bombing, the FBI found thousands of pages of documents it should have turned over during pre-trial discovery. I remember thinking, If they can't get this case right, what does that say about all the cases under the radar? I think death penalty cases can be good barometers of how seriously we take the system, how well we play by the rules. I know you can make the counter-argument (that we slap together some cosmetic justice in the high-profile cases and railroad everyone else), but I think it's wrong. Hopefully, there's a trickle-down effect from capital cases based on the notion that our criminal justice system is based on a set of rules that apply even when the defendant is charged with a terrible crime. Again, I think you can dispute how accurate that is in the real world, but I really do believe that a lot of actors in the system treat death cases as symbolically important because of what they say about how our system works, or doesn't.

Death is different. Capital cases can serve that symbolic function because many people see them as fundamentally different, more important -- a difference in degree and kind. In Woodson v. North Carolina, the Supreme Court said that a sentence of death is more different from a life sentence than a 100-year sentence is from one of a year or two, because of the finality of the death penalty. Everyone involved wants to get it "right" (or at least right enough). It's a cliche after thirty years of modern death penalty jurisprudence that "death is different," but it's still true for most people. I don't think it's unfounded to look at the Supreme Court's docket as comprising not the two realms of civil and criminal cases, with death cases taking such a high percentage of the latter, but rather consisting of three general areas: civil, capital, and non-capital criminal. Viewed that way, the docket isn't too heavy with death cases. Additionally, because of the Eighth Amendment, there's a whole set of caselaw applicable to capital cases that doesn't normally apply to non-capital cases. I don't think it's unnatural to look at death cases as horses of a different color. And, as noted above, the other parties in the system can look at it this way as well as judges can. Groups like the ABA or capital defense organizations develop that specialization. The media get to add the morality of the punishment to their coverage. The stakes are unique. In many ways, the law is unique. And the moral issue is unique. Since Prof. Berman is a Buckeyes fan, I'll use a sports analogy: One could argue that the death penalty is the NFL, and Prof. Berman is complaining that the Super Bowl gets more attention than a college bowl game.

The point of this post is simply to suggest some reasons why death penalty cases get so much attention. Prof. Berman argues quite convincingly that the focus is misplaced, to at least some extent. I'm not trying to use this post to discuss whether he's right. But I do think the reasons above, in combination, explain why the focus is where it is.

1. Over at the Freakonomics blog, Steven Levitt has a post about the Nobel Prize in Luge. No, scratch that. It's a post asking whether it's easier to win a gold medal in luge or a Nobel Prize in economics. Levitt suggests the chances are about equal based on the number of lugers and econ scholars, and the per-year number of prizes given out in those fields. Some commenters have already pointed out that Levitt doesn't take into account that a luger's career is much shorter than an economist's.

Consider also that luge has a qualifying hurdle that Nobel lacks. You could be the fifth best luger in the world over a four-year period, but if you're, say, Austrian, and three of the four better than you are on your team, you won't even make it to the Olympics. If there's an economist out there who is the fifth "best" in the world over a four-year span, he or she should win a Nobel at some point, regardless of which country he or she hails from.

I enjoyed the book Freakonomics, but this post makes me think that Levitt was watching the Olympic luging, thought, "I could do that!" and then realized his chances were better of winning the Nobel Prize. Don't quit your day job, Professor!

2. I was very disappointed that the legendary Buck O'Neill was not elected to Baseball's Hall of Fame by a special committee assessing the candidacy of a group of Negro League players and execs. Seventeen others were judged more worthy. This puts me in mind of that old Dead Milkmen song where they ask the guy in the record store for Mojo Nixon, and the guy says "He don't work here," and the Milkmen say, "If you don't got Mojo Nixon then your store could use some fixin'!" Well, if the Hall of Fame don't have Buck O'Neill, it could use some fixin'.

3. I was going through an old folder in an old email account of mine, and found this item I sent to some college friends during my first semester of law school, apparently between Thanksgiving break and the beginning of 1L job search and right before exams:

I f***ing hate law school. Let me make sure and get across that this is not mere hyperbole. I find a lot of this stuff fascinating, but it's not enjoyable. Worse, I don't even know anymore if I made the right decision. I don't know if I want to be a lawyer. I have virtually no idea what I want to do when I get out. I know it's still early, but they push this on you so soon. I mean, I laid awake several times when I was home and wondered if I should even go back. I'm just so f***ing sick and tired and disillusioned.

They and a couple of law school friends talked me down, and I'm glad they did. I ended up liking law school a lot -- I would go back now if they'd let me. But it was odd to see that version of myself and remember how much I hated it, and really felt terribly lost, back then.

4. One of the reasons I was thumbing through those old emails was because Don Knotts's death reminded me of one of my college roommates. Jason was a year behind me, and we roomed together my senior year, his junior. Jason was from Winston-Salem, North Carolina, and was the biggest "Andy Griffith Show" devotee I've ever known. I like the show a lot, but Jason was cuckoo for it. He had every single black-and-white episode on tape. (True fans know that the color episodes were vastly inferior.) He taped them by hand, pausing at the commercials. He went to Mayberry Days in Mt. Airy, Andy Griffith's hometown. I'm not sure I really got the full measure of Jason's devotion until he flew for a day to Cincinnati to see Don Knotts in concert because that was as close as he was coming on his "farewell tour." I probably ought to track Jason down; he's likely pretty despondent.

Jason was an odd bird (as if you haven't added that up yet). He also adored John Wayne -- so much that his email address included a reference to Tom Doniphon, Wayne's character's name in The Man Who Shot Liberty Valance. It was like Jason was a 70-year-old trapped in a 22-year-old's body. He even talked slowly -- even for a North Carolinian. He sounded a bit like a stoned surfer with a Southern accent. He would always say he came from "F***in' Winston, dude!" He was also very talkative, which combined with his slow diction made conversations with him an event you packed a lunch for. Even a simple question like "What did you do today?" would lead to an explanation of every single thing he did, and what he thought about it. "What did you do this summer?" was a mini-series.

After college, Jason went to New York to work in investment banking, which was a frequent source of amusement, like Jason was a modern version of the "Enos" spinoff from "The Dukes of Hazzard." (With Dennis Weaver's death, now this makes me think of "McCloud." Jason later transferred to Phoenix, like a reverse McCloud, but we all assumed he was living in a seniors' community and driving a golf cart around, like the old man he acted like.)

After country-mouse Jason had been in New York for a few months, he sent a long email to some of us, relating his adventures. I still laugh thinking about it. New York just didn't suit him. I remember him saying he was in a grocery store, and being upset at how narrow the aisles were. He said a woman bumped into him, "and she didn't even say 'Excuse me'!!" When Krispy Kreme opened its first NYC store, Jason waited in line for hours for that taste of home. He said he finally got up to the front of the line and eagerly told the clerk that he was from Winston-Salem, the birthplace and corporate headquarters of Krispy Kreme, "and she didn't even care!!" Ah, Jason. Good times. Jason also shows up in my infamous San Diego story, so this post may end up serving as the character sketch for him in the event I ever get around to writing that story.

5. I was looking closely at a 20-dollar bill today, and I noticed something about the signatures. U.S. bills are imprinted with the signatures of the Secretary of the Treasury and the Treasurer of the United States. Under the signatures, after both of the titles, there are periods. Look close -- they're hard to see on older, wrinkled bills; I think I only noticed because the one I had was a crisp 2004 note. Anyway, the periods are teeny-tiny, and completely unnecessary. So why include them? Even though the dot is miniscule, imagine all the ink that has been used on those periods over the decades! I can only assume it's a counterfeit deterrent. It's a small detail that forgers might miss. But maybe Michael Newdow should forget about suing to get "In God We Trust" off the money and work to delete the unnecessary periods! (My favorite story about the signatures was when Yankees player Paul O'Neill asked Treasury Secretary Paul O'Neill, "When are we going to get our name on the money?")

6. Someone sent me this story. I don't know if it's getting circulated more widely, but it ought to. Not one but two weather forecasters at a Roanoke, Virginia tv station have admitted recently to struggling with heroin addiction! I find this fascinating. I'm trying to picture a forecast by someone who's wasted, or jonesing. I have to admit I would like to see Ewan McGregor from Trainspotting giving the weather. And I really hope someone looks into whether their forecasts were more or less accurate than those of non-drug-using forecasters. And I think it would have been funny if the weathermen had used the forecast as a code for their dealer: "Okay, folks, here's your weekend weather fix...There's going to be a HIGH pressure system rolling through the park Saturday around 5:00." And now, instead of just hyping the latest version of the Doppler 99,000 radar, their competitors don't have to tout National Weather Service credentials or anything -- they can just say, "Our forecasters are guaranteed not high!" Weird...just weird all the way around.