That's the provocative question that South Texas College of Law prof Adam Gershowitz asks in a paper added at SSRN. The title is, "Pay Now, Execute Later: Why Counties Should Be Required To Post a Bond To Seek the Death Penalty."
When death sentences are reversed – and many of them are reversed for prosecutorial misconduct, ineffective assistance of counsel, and other reasons – local prosecutors are not forced to fully internalize the costs of their failed prosecutions. While counties make the decision to seek the death penalty, they do not have to fund the very expensive appellate and post-conviction stages of capital cases that are typically handled by state attorneys general's offices. This paper proposes that state legislatures could improve the functioning of the death-penalty system, while simultaneously acting out of financial self-interest, by requiring counties to post (and possibly forfeit) a bond to seek the death penalty. Faced with the prospect of losing a bond if the capital prosecution fails at trial or on appeal, local prosecutors would have an incentive to choose their capital cases more carefully and to avoid any type of misconduct that might lead to reversal on appeal. The prospect of forfeiting a bond also would create secondary benefits, such as encouraging prosecutors to protest the appointment of unqualified defense lawyers in order to stave off ineffective assistance of counsel claims. As a financial matter, the bond proposal should be appealing to state legislators because it would shift the exorbitant costs of failed capital prosecutions away from state budgets and into the hands of the county actors who instigated the failed prosecutions.
Thanks to Doug Berman for spotting this holiday weekend reading.