Adjudicating Death: Professionals or Politicians?

IntroductionOn February 13, 2016, Justice Antonin Scalia was found dead in his room at a ranch in West Texas, where he was on a hunting vacation, with a pillow over his head.1 It is possible that people die with pillows over their heads, but this was the most famous member of the U.S. supreme court, who was in good enough health to go on a hunting vacation and had shown few signs of illness to his hunting companions. That said, Justice scalia was in his late seventies and had the kinds of preexisting medical conditions that made it probable that he had died of natural causes. Nevertheless, there was enough in the story to get conspiracy theorists riled up, and even our current President (then, candidate) said in response to an interviewer asking him about the possibility of something suspicious: "It's a horrible topic, but they say they found a pillow on his face, which is a pretty unusual place to find a pillow."2Yet, the death examiner, Cinderela Guevara-not a trained pathologist, but a local county judge-decided to forego the autopsy without visiting the scene because the county sheriff assured her that there was "no foul play," Justice Scalia's personal physician told the judge that the death was due to "natural causes," and the Scalia family requested that no autopsy take place.3 Had, by contrast, Justice Scalia died in a hotel in Boston, Singapore, or Tokyo, there would have been a detailed investigation and an autopsy by a qualified pathologist.4 That is, the kind of examination that those of us who watch crime shows on television assume happens in every case.Putting aside the credibility of Alex Jones and other conspiracy theorists about whether President Obama or aliens were eliminating conservative Supreme Court Justices prior to the 2016 presidential election,5 there exists a real question here, which is whether there needs to be a uniform system of professional death examinations across the United States. Currently, there are counties and states where decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner.6 In the nineteenth century, the coroner system predominated in the United States. Many but not all states shifted toward professional medical examiners in the twentieth century. Members of the medical profession who work in this area have long expressed concern about the persistence of coroners today in certain states.7 For them, the answer is obvious: the system should be run by highly trained, board-certified pathologists.8 Our instinct is that the doctors are probably right. Given that there is significant variation across the states in terms of whether death examination offices are run by trained professionals or local politicians, we should, in theory, be able to empirically test the question of whether professionals or politicians do a better job of adjudicating death. It turns out that, although there are strong opinions about what the answer surely is, there has been little in the way of serious empirical work addressing this question. Our Article takes a first cut at looking at how one might do that analysis.The question of whether professionals or politicians are best suited for a given task is not unique to death examiners. There has, for example, long been a robust debate on the question of whether appointed judges (professionals) are better than elected judges (politicians). Politicians are likely to be more responsive to the immediate needs of the voting public; after all, they want to be reelected. But that also means that they are likely to be less independent.9 If they believe that being hard on criminals is a good votegetting strategy, they are likely to do that. Indeed, research suggests that they are going to do that more when elections approach.10 On the flip side, the professionals-the ones who have job security and cannot be removed except for extreme misbehavior-have little incentive to consider the preferences and needs of those who they are supposed to be serving. …