Studies

NEW RESOURCES: University of Virginia Interactive Database Maps the Modern Death Penalty

 The University of Virginia School of Law has created a new interactive web resource (click on map) that allows researchers and the public to visually explore death-sentencing practices in the United States from 1991 through 2017. The interactive map provides county-level data on death sentences imposed across the United States, drawing from a new database created by University of Virginia Law Professor Brandon Garrett (pictured) for his recent book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice. The interactive map, which is a web supplement to the book, permits users to view where and how many death sentences were imposed in the U.S. each year, and to contrast and compare sentencing patterns over time in states, counties, and the U.S. as a whole. Using a slider to view chronological shifts in sentencing patterns, the map illustrates how death sentences have declined nationwide and become increasingly isolated to a few outlier counties. “This is the first resource to map out modern death sentencing in the United States,” Garrett said. “The mapping vividly shows how geographically isolated death sentencing has become.” The data forms the backbone of End of Its Rope, in which Garrett analyzes the dramatic decline in the use of the death penalty over the last 25 years. The publicly available database contains information on more than 5,000 death sentences, allowing researchers and lawyers to analyze patterns and trends. “Several researchers, in addition to those of us at UVA, have already made use of the data, and we hope that more do so in the future,” Garrett said. Garrett worked with a UVA Law librarian, law students, and undergraduates to compile the data from government records, court rulings, and other sources.

Study Analyzes Causes of “Astonishing Plunge” in Death Sentences in the United States

Multiple factors—from declining murder rates to the abandonment of capital punishment by many rural counties and substantially reduced usage in outlier counties that had aggressively imposed it in the past—have collectively led to an “astonishing plunge” in death sentences over the last twenty years, according to a new study, Lethal Rejection, published in the 2017/2018 Albany Law Review. Using data on death-eligible cases from 1994, 2004, and 2014, Drake University law professor David McCord and Niagara University criminal justice professor Talia Roitberg Harmon examined a range of factors to determine what caused the more than 75% reduction in death sentences in the U.S. between 1994 and 2014. (Click image to enlarge.) The authors found that just over half the decline could be attributed to a reduction in the number of potentially death-eligible murders, as a result of a combination of lower murder rates, Supreme Court decisions making murders committed by intellectually disabled offenders and offenders aged 17 or younger ineligible for the death penalty, and the abolition of the death penalty by six states. The rest of the decline, they said, was attributable to subjective decisions by prosecutors and sentencers, a factor they called “changing perceptions of death-worthiness.” Murders in the 37 states that authorized the death penalty in 1994 fell from 19,250 that year to 12,440 in 2014—a 35.4% decline. However, death sentences dropped by more than double that rate, from 310 to 73—a 76.5% decline. McCord and Harmon also attempted to identify factors that contributed to prosecutors’ and sentencers’ perceptions of death worthiness, which accounted for nearly half of the death-sentencing decline. The addition of life without parole as a sentencing option did not, they said, have a significant impact in lowering death sentences, except in Texas. Rather, they found that death sentences were being sought and imposed at lower rates in less aggravated murder cases, in cases with multiple perpetrators, and against defendants under age 21. They also found two types of significant geographical effects: death-sentencing dropped significantly in low-population counties across the country and in five of the nation’s highest volume death-sentencing counties (Harris, TX; Cook, IL; Pima, AZ; Philadelphia, PA; and Miami-Dade, FL). While the researchers did not report how many fewer death sentences were imposed in these counties in 2014, they described the decline as having an “outsized” effect on the national total. They conclude, “The decline in death sentencing in the United States from 1994 has been relatively rapid, quite steep, and is continuing—from the endpoint of our dataset, death sentences declined from 73 in 2014 to 49 in 2015; and in 2016 only 31 death sentences were imposed. The American death penalty seems like an ever-crankier version of the Cheshire Cat: it is grudgingly disappearing, leaving behind only its frown.”

Global Study Highlights Systemic Risks of Wrongful Capital Convictions

“In 2016, at least 60 prisoners were exonerated after having been condemned to death, in countries across the geographical and political spectrum,” according to a new report on wrongful capital convictions by the Cornell Center on the Death Penalty Worldwide. The report, Justice Denied: A Global Study of Wrongful Death Row Convictions, analyzes risk factors for executing the innocent that are endemic in death penalty cases irrespective of where they are tried, and makes recommendations for systemic reform. The sixty exonerations in just one year “represent[ ] only a tiny fraction of those who are currently on death row for a crime they did not commit,” the report says. “Few innocent prisoners are able to obtain access to the courts, either because they lack lawyers or because there are no procedural mechanisms available by which they can present new evidence of innocence.” The study illustrates systemic risk factors for wrongful convictions that are present wherever capital punishment is practiced, highlighting cases from Cameroon, Indonesia, Jordan, Malawi, Nigeria, and Pakistan. According to the report, these factors include ineffective assistance of legal counsel, torture and coercion, misconduct by officials, racial and ethnic discrimination, false or misleading forensic evidence, and mistaken eyewitness identification. It recommends, among other reforms, that states provide adequate funding and training for capital defense lawyers, provide meaningful access to appellate review, allow for post-conviction DNA testing, record all police interrogations, and provide compensation to those who are exonerated. The Center chose the six countries whose systems it highlighted “not because their legal systems are uniquely flawed, or because they contribute a greater number of wrongful convictions compared to their peers,” the report says, but “because they represent a diversity of geographic regions and legal systems.” While the risk factors for wrongful capital convictions play out differently from country to country, the experience of each country illustrates the gap between the legal protections afforded on paper to those facing the death penalty and the manner in which those safeguards are implemented in practice. The report concludes: “Every country that retains the death penalty—from the poorest to the most wealthy—runs the risk that innocent persons will be executed. No criminal justice system is perfect, and the risk of error can never be entirely eliminated. The only way to completely exclude the possibility of executing the innocent is to abolish the death penalty altogether.”

Researcher: Racial Disparities Require Abolishing or Severely Restricting Death Penalty

Severely restricting the use of capital punishment or abolishing the death penalty altogether would help rectify some of the persistent racial disparities found in the United States' criminal justice system, according to Cassia Spohn (pictured), the Foundation Professor of Criminology and Director of the School of Criminology & Criminal Justice at Arizona State University. In a chapter on Race and Sentencing Disparity in the recently released Academy for Justice four-volume study, Reforming Criminal JusticeSpohn—the author of How Do Judges Decide? The Search for Fairness and Justice in Punishmentwrites that there is “clear and convincing evidence of racial disparity in the application of the death penalty” in the United States. Spohn's chapter traces the theoretical and methodological development in research into the relationship between race/ethnicity and sentencing over the past eight decades. She concludes that “reducing racial and ethnic disparities in sentencing and punishment requires something more than the passage of legislation designed to reduce incrementally the discretion of prosecutors, judges, and corrections officials." She recommends three major reforms "to reduce both the punitive bite of incarceration and the disparity in punishment": eliminating mandatory minimum sentences, abolishing the death penalty, and enacting Racial Justice Acts that would allow judges to consider whether racial bias played a role in the decision to seek or impose the death penalty and permit prisoners to challenge their sentences with statistical evidence showing a pattern of racial discrimination in sentencing. Spohn cites demographic evidence that, she says, convincingly demonstrates clear racial disparities in the administration of the death penalty in the United States. In 2016, 41.8% of the 2,905 prisoners under sentence of death in the United States and more than a third of those executed since 1977 (34.5%) were Black, although African Americans make up only 13% of the population. Similarly, she writes, those who murder White victims are sentenced to death and executed at disproportionately high rates: from 1977 through 2016, 75.6% of executed prisoners were convicted of killing White victims, as compared to 15.3% who were convicted of killing Black victims, and 6.9% convicted of killing Hispanics. The disparities, she found, were "particularly pronounced" in the use of the death penalty for rape, before the Supreme Court declared that practice unconstitutional in 1977. Between 1930 and 1972, 455 people were executed for rape; 405 of them (89%) were Black men and a number of states did not execute a single White man for rape during this period. Spohn argues that Racial Justice Acts could provide important safeguards in addressing discriminatory death-penalty practices. However, she writes, efforts to enact them have largely failed. The U.S. House of Representatives included a Racial Justice Act as part of the Omnibus Crime Bill of 1994, but it was removed by the Senate, where opponents "argued that it would effectively abolish the death penalty in the United States." Only Kentucky and North Carolina enacted state Racial Justice Acts, and the North Carolina legislature repealed its act in 2013 after four death row prisoners established that race had been a significant factor in their sentencing. Spohn concludes that "[t]he defeat of the Racial Justice Act in Congress and the failure of the issue to gain traction in the states, coupled with persuasive evidence of racial disparity in the application of the death penalty, suggest that the remedy for racial bias in the capital sentencing process is abolition of the death penalty."

Report: Deterrence is Based on Certainty of Apprehension, Not Severity of Punishment

The certainty of apprehension, not the severity of punishment, is more effective as a deterrent. So argues Daniel S. Nagin (pictured), one of the nation’s foremost scholars on deterrence and criminal justice policy, in his chapter on Deterrence in the recently released Academy for Justice four-volume study, Reforming Criminal Justice. Reviewing deterrence scholarship since the 1960s and five leading studies from the past two decades, Dr. Nagin concludes that evidence supporting a deterrent effect from "the certainty of punishment is far more convincing and consistent than for the severity of punishment." Moreover, he writes, "[t]he certainty of apprehension, and not the severity of the ensuing legal consequence, is the more effective deterrent." Dr. Nagin is the Teresa and H. John Heinz III University Professor of Public Policy and Statistics at Carnegie Mellon’s Heinz College of Information Systems and Public Policy and previously chaired the Committee on Deterrence and the Death Penalty for the National Research Council of the National Academies of Science (NAS). In that capacity, he served as co-editor of the 2012 National Academies report, Deterrence and the Death Penalty. Nagin explains in his Academy for Justice chapter that although "certainty must result in a distasteful consequence" for the punishment to be a deterrent, "[t]he consequences need not be draconian, just sufficiently costly, to deter the prohibited behavior." In making policy judgments about the justification for increasingly severe sanctions, he says, "the deterrent return to increasing an already long sentence appears to be small, possibly zero." The 2012 NAS Committee found that "research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates" and recommended that those deterrent studies "not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide." A February 2015 study by the Brennan Center for Justice of the dramatic drop in crime in the U.S. in the 1990s and 2000s found that the death penalty had no effect on the decline in crime

BOOKS: Deadly Justice—A Statistical Portrait of the Death Penalty

In their new book, Deadly Justice: A Statistical Portrait of the Death Penalty, a team of researchers led by University of North Carolina-Chapel Hill political science professor Frank Baumgartner uses forty years of empirical data to assess whether the modern death penalty avoids the defects that led the U.S. Supreme Court to declare in Furman v. Georigia (1972) that the nation's application of capital punishment was unconstitutionally arbitrary and capricious. Their conclusion: "A reasoned assessment based on the facts suggests not only that the modern system flunks the Furman test but that it surpasses the historical death penalty in the depth and breadth of the flaws apparent in its application." Deadly Justice explores an enormous range of issues—including, among others, racial, gender, and geographical bias, innocence, deterrence, mental health, childhood abuse, length of time on death row, reversal rates, and execution methods—to determine whether the death penalty is fairly and proportionally applied and reserved for the "worst of the worst." Reviewing the data, Baumgartner et al. find that the modern death penalty "is it just as arbitrary, just as biased, and just as flawed as the pre-Furman system." Worse yet, they write, "it has added to these flaws increased levels of geographical focus on the South, even more concentration in just a few jurisdictions, astronomical financial costs unimagined in the earlier period, average periods of delay now measured in the decades, odds of reversal well over 50 percent, routine and often successful last-minute legal maneuvering even while the inmate is in the execution room and has been prepared to be executed, and a medicalization paradox that was not even imagined in the pre-Furman period." In an interview with the Houston Chronicle, Baumgartner says "[t]he key driver in the system" is not the frequency of homicides or the nature of the murder but "the choices that district attorneys make .... There's really no rhyme or reason to it." He says the biggest change in public opinion began in the 1990s as evidence began to mount that "there might be innocent people on death row. ... The innocence argument has really shaken people's faith that you can count on the government to get it right every single time. ... The system is so tied up in knots, partly because of the concern of executing an innocent person. It's really hard to justify or have enthusiasm about a system so dysfunctional as the current modern death penalty, even if you're a prosecutor."

STUDY: In Oklahoma, Race and Gender of Victim Significantly Affect Death Penalty

A new study of more than two decades of murders in Oklahoma has found that defendants charged with killing a white woman have odds of being sentenced to death in the Sooner State that are nearly ten times greater than if they had been charged with killing a man who is a racial minority. The study, published in the Fall 2017 issue of the Northwestern University Pritzker School of Law's Journal of Criminal Law and Criminology, examined more than 4,600 Oklahoma homicide cases over a 23-year period between January 1, 1990, and December 31, 2012 in which a suspect had been identified, including 153 cases in which a death sentence had been imposed. The researchers—research scientist Dr. Glenn L. Pierce and professors Michael L. Radelet and Susan Sharp (pictured, left)—found "large disparities in the odds of a death sentence" that they said "correlate with the gender and the race/ethnicity of the victim." Among other findings, the study determined that there was "a strong correlation" between the race of the victim and the probability that the death penalty would be imposed, with cases involving white victims "significantly more likely to end with a death sentence than cases with nonwhite victims." Among all murders, cases with white victims were the most likely to result in death sentences (3.92% of cases), followed by killings of Latino victims (2.67%), black victims (1.87%), and Native-American victims (1.26%). Overall, white-victim cases were more than twice as likely as cases involving black victims or non-white victims as a whole to end in a death verdict and more than three times as likely to result in a death sentence as cases with Native-American victims. The study also found significant victim-gender disparities, with murders involving at least one female victim more likely to result in a death sentence than other cases. The combination of race and gender produced even more profound disparities in death-sentencing rates. The odds that a death sentence would be imposed were nearly 10 times greater (9.59 times) in cases with white female victims than in cases with minority male victims; 8.68 times greater in cases with minority female victims than in cases with minority male victims; and more than triple (3.22 times greater) in cases with white male victims than in cases with minority male victims. While the study found that the defendant’s race by itself did not correlate with a death sentence, the probability of a death sentence for a nonwhite defendant charged with killing a white victim (5.8%) was more than triple the probability of a death sentence for a white defendant charged with killing a non-white victim (1.8%). After spending more than a year studying Oklahoma's capital punishment practices—including a draft version of the researchers' study—the bipartisan Oklahoma Death Penalty Review Commission issued a report unanimously recommending that Oklahoma continue its moratorium on executions "until significant reforms are accomplished." Two African-American death-row prisoners, Julius Darius Jones and Tremane Wood, have argued based upon that draft of the study, that Oklahoma's death penalty unconstitutionally discriminates on the basis of race.

BOOKS: End of Its Rope—How Killing the Death Penalty Can Revive Criminal Justice

"The death penalty in the United States is at the end of its rope [and] its abolition will be a catalyst for reforming our criminal justice system." So argues University of Virginia Law Professor Brandon L. Garrett in his widely anticipated new book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, which analyzes the reasons behind the steep decline in capital punishment in over the last 25 years. With the help of other researchers at the University of Virginia, Garrett analyzed death-sentencing data from 1990 to 2016, county by county. He found that numerous interrelated factors contributed to the decline: the drop in murders across the country, the creation of institutional capital defender offices that greatly improved the quality of representation, the availability of life without parole as a sentencing option, the cost of the death penalty system, and growing public awareness of exonerations and the risk of wrongly sentencing innocent defendants to death, fueled further by the abolition of capital punishment in some states and the abandonment of capital prosecutions by many counties. Local culture had a profound effect on death sentencing practices: Garrett found that states and counties that most frequently executed people developed what he terms a “muscle memory” for the practice and “imposed far more death sentences just as a function of having done so in the past." But, the converse was also true: when a county stopped sentencing people to death, it was less likely to resume the practice. Garrett found that death sentences have now all but disappeared from rural America, and are now imposed mainly in larger, urban areas. Garrett told the The Marshall Project, "we found a strong county-level pattern of racial bias. Counties with more black residents have more death sentences. And counties with more white victims of murder have more death sentences. Call it a 'white lives matter' effect," he said. In an interview with University of Virginia publicists, Garrett described the death penalty as "a failed experiment." He said states’ recent efforts to reform death-penalty procedures to “save the death penalty from itself” have failed because “the bias, both racial and geographic, is too ingrained. Lawmakers have tried to speed up executions, but have instead seen more delays and botched executions. They have tried to insist on higher-quality proof, and have still seen exonerations of innocent death row inmates." Garrett hopes that as the death penalty wanes, the lessons learned can buttress other efforts to reform America's criminal justice system and to move away from "mass incarceration and harsh punishment more broadly.”

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