The law-and-economics lunch bunch had the unusual treat today of a visit from Professor Hoffman, who knows all the details of death penalty law. He has raised to his class, and to us, the question of how one writes a law to make the certainty that the court would be correct to impose the death penalty greater than the certainty for other kinds of criminal cases. Currently, states have the same "reasonable doubt" standard for death penalty cases that they have for other criminal cases, and the same kinds of rules for what evidence can be admitted. Death penalty cases get a lot more scrutiny, but via extra spending on defense and prosecution lawyers, extra attention from judges, and easier appeal. What else might be done? The Governor of Massachusetts has put Professor Hoffman on a committee to come up with something.

He has to be fairly conventional, unfortunately, in his recommendations, but we at lunch are free to think about even unconventional good ideas. Here are some possibilities:

1. Tell jurors (or the judge) to ask themselves if they'd bet their life that they were right to impose the death penalty.
2. Tell the jurors (or judge) that if they impose the death penalty wrongly, and it is discovered later, each of them will have to pay a \$50,000 fine. (Professor Snyder said that in long-ago times, jurors actually did face a risk like this.)
3. Tell the jurors (or judge) that if they impose the death penalty wrongly, and it is discovered later, each of them will have to put flowers on the grave of the executed man each week for their rest of their lives. This is like scheme (2) except that it avoids the crudity of monetary fines.
4. Make the governor use his discretion. Even now, he can commute sentences and pardon people. Write the law to make it clear that we expect him to do so seriously in every case. Then we have one person responsible, so there is a uniform standard, and that one person is politically accountable, unlike many judges and all jurors. <\ol> Any other ideas? Remember, this is all based on the premise that we want a stricter standard for death penalty cases. That premise may be wrong, or the death penalty might be wrong, but the question is still a useful one to think about.

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