
DPIC Report: The 2% Death Penalty
How a Minority of Counties Produce Most Death Cases at Enormous Costs to All

DPIC Podcast: Discussions With DPIC
Authors of Death-Penalty Study Discuss Tennessee’s“Death Penalty Lottery”
Overview
A punishment that is administered in an arbitrary way — that is, imposed on some individuals but not on others, with no valid justification for the difference — is unconstitutionally cruel, just as an excessively harsh punishment is cruel. Arbitrary punishments also open the door to racial and other discrimination: if the sentencing authority has inadequate guidelines, prejudice can lead to harsher penalties for disfavored minorities.
If speeders who drove yellow cars were consistently ticketed but speeders who drove other colored cars were not, the application of the speeding law would be considered unfair, even if there were no mention of a car’s color in the law. In a death penalty system in which less than 2% of known murderers are sentenced to death, fairness requires that those few who are so sentenced should be guilty of the most horrific crimes or have worse criminal records than those who are not. A system in which the likelihood of a death sentence depends more on the race of the victim or the county in which the crime was committed, rather than on the severity of the offense, is also arbitrary.
The Supreme Court struck down all death penalty laws in 1972 because their application was arbitrary. In 1976, constitutional guidelines were instituted in an attempt to prevent such capriciousness in the future.
At Issue
More than forty years of evidence strongly suggests that the Court’s guidelines have been ineffective. Irrelevant factors such as race, poverty, and geography still seem to determine who is sentenced to death. Short of applying the death penalty in all murder cases (a path condemned by the Supreme Court), it may be impossible to devise rules that clearly delineate which crimes and which defendants merit death and that juries and judges are able to consistently apply.
What DPIC Offers
DPIC provides statistics on executions, death sentences, and death row that include demographic information on the defendant and victim. DPIC has also highlighted relevant studies demonstrating the continued arbitrariness in the application of the death penalty.
News & Developments
News
Mar 10, 2023
LAW REVIEWS— Getting to Death: Examining the Role of Race in the Steps Leading to a Death Sentence

In an article in the Cornell Law Review, Professors Jeffrey Fagan, Garth Davies, and Raymond Paternoster show how arbitrariness and race operate at each stage of a capital case, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself. The authors applied rigorous analytic methods to a dataset of 2,328 first-degree murder cases in Georgia from 1995 – 2004 and found that two factors have significant influence: the race and gender of the victim in the underlying murder.
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Sep 13, 2023
When Jurors Do Not Agree, Should a Death Sentence Be Imposed?
In most states, a death sentence may only be imposed by a jury in unanimous agreement. But in two recent cases, defendants faced the possibility of a death sentence despite the objections of jurors.
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Aug 15, 2023
Charles Ogletree, Death Penalty Scholar and Criminal Defense Advocate, Dies at 70
Charles Ogletree, Jr., a passionate advocate for racial and criminal justice, died on August 4, 2023, after a long illness. As a tenured professor at Harvard University, Professor Ogletree spoke and wrote often about the death penalty and mentored many students, including both Barack and Michelle Obama. In a 2014 Washington Post op-ed, he criticized the use of the death penalty in the United States, particularly for people with severe mental illness, brain impairments, or who suffer from the effects of severe trauma. He noted that “barring the death penalty…
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Jul 28, 2023
Louisiana Pardon Board Declines to Consider 56 Death Row Clemency Petitions Without Merits Review
On July 24, 2023, the Louisiana Board of Pardons and Parole set aside all 56 clemency applications filed by nearly every death-sentenced prisoner in Louisiana last month without reviewing the merits of a single one of them. The prisoners asked for their sentences to be commuted to life without parole, but the Board made its decision to return the applications based on an advisory, nonbinding opinion from the Louisiana Attorney General Jeff Landry. Attorneys for death row prisoners have responded by arguing that the Attorney General’s office misinterpreted the language…
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Jul 17, 2023
Application of Florida’s New 8 – 4 Capital Sentencing Scheme “Moves the Goalposts” and Violates Constitutional Prohibition on Ex Post Facto Laws
Florida’s new death sentencing law cannot apply to defendants who committed their crimes before the law was passed earlier this year, Florida Circuit Judge Kevin Abdoney rules. Florida law previously required that a sentencing jury must unanimously vote for death before the court could impose a death sentence, but in April of 2023, Gov. Ron DeSantis signed a bill into law that allows a jury to recommend a death sentence with as few as 8 votes. The ruling in Bryan Riley’s case means that the new law will not apply…
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Apr 25, 2023
Law Reviews — Racial Bias in Felony Murder and Accomplice Liability
A forthcoming article in the Denver Law Review discusses two theories of homicide law, the felony murder rule and accomplice liability, that create group liability for the actions of an individual. The article, written by Professors G. Ben Cohen (pictured), Justin D. Levinson, and Koichi Hioki states that “Research suggests that the administration of accomplice liability [and] felony murder doctrines disproportionately impact Black and minority defendants,” causing minority defendants to be sentenced for first degree murders they did not personally commit at greater rates than white defendants. The researchers’ explanation for this disparity is that “Americans automatically individualize white…
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Apr 14, 2023
LAW REVIEWS — Collection of Articles on the Death Penalty from Leading Scholars
The following law review articles by several key death penalty researchers were recently published in 107 Cornell Law Review, No. 6, September, 2022. They cover a variety of issues, such as the interplay between race and capital punishment, the history of the death penalty, the federal death penalty, sentencing trends, and the federal court’s role in capital punishment:
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Mar 30, 2023
LAW REVIEWS— Who Lives and Who Dies Depends Heavily on a Thorough Investigation and Presentation of Mitigating Evidence in Death Penalty Cases
In a forthcoming update to their groundbreaking 2018 research on the importance of mitigation in death penalty cases, researchers Russell Stetler, Maria McLaughlin, and Dana Cook (pictured) have greatly expanded the number of capital cases reviewed and drawn the conclusion that “the effective investigation and presentation of mitigating evidence can forestall a death sentence no matter how death-worthy the crime facts may appear at first glance.” Their study — titled “Mitigation Works” — focused on highly aggravated capital cases that resulted in life sentences, rather than death. The update expanded the number of potential death-penalty cases reviewed to about 600, while their prior…
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Mar 24, 2023
REPRESENTATION: Why Poor People in Texas End Up on Death Row and Face Execution
An in-depth piece in the Huffington Post examines Harris County’s (Texas) system for providing representation to those facing the death penalty who cannot afford their own attorney. The process is explored through the story of Obel Cruz-Garcia, a prisoner on Texas’ death row.
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Feb 17, 2023
LAW REVIEWS: Ensuring Black Lives Matter When the Penalty Is Death
In a 2022 article published in the Idaho Journal of Critical Legal Studies, author Sidney Balman (pictured), examines the relationship between racism and geographical arbitrariness in the application of the death penalty in the U.S. As in other areas of society, he finds that Black lives are not valued equally with others. He cites the Supreme Court’s decision in McCleskey v. Kemp (1987) as the main legal obstacle to reversing this bias affecting capital punishment. “Today,” he writes, “McCleskey has come to stand for the Court’s refusal to address the…
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Jan 03, 2023
Court Recommends New Trial for Texas Death-Row Prisoner, Finding Rights Violated by Trial Judge’s Virulent Anti-Semitism
A Dallas County judge has recommended that the conviction and death sentence of a Jewish death-row prisoner be overturned because his trial was poisoned by the virulent anti-Semitic bigotry of the Texas judge who presided over his case.
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