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December 20, 2009

"Why is use of the death penalty going down?"

The title of this post is the headline of this piece from The Christian Science Monitor.  Here is how it begins:

Fewer people received a death sentence over the past 12 months than in any year since 1976 — the year that capital punishment was reinstated in the US.

That finding was released Thursday by the Death Penalty Information Center (DPIC).  But it doesn’t mean that capital punishment is headed for immediate extinction: The death penalty is included in the laws of 35 states — and in some states, such as California, the number of death sentences has actually risen.  Also, surveys show that the capital punishment has the support of most Americans.

But if use of the death penalty is declining overall, why is that?

One reason: Some state prosecutors are growing more hesitant to seek a death sentence in cases that might later be upended because of DNA evidence.  Since DNA entered the courtroom in 1989, 248 criminal convictions have been overturned, 17 of which involved inmates on death row, according to the Innocence Project of Florida.

I am not sure that innocence issues are the key or even the main reason for declining use of the death penalty, but I do think it is an important factor in a very dynamic story.

December 20, 2009 at 12:31 PM | Permalink


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DNA Evidence and Fewer Death Sentences: At Sentencing Law and Policy, Doug Berman posted an article in Friday's Christian Science Monitor hypothesizing that DNA evidence might be the reason fewer prosecutors are seeking the death penalty. The article, ... [Read More]

Tracked on Dec 21, 2009 6:50:38 PM


"248 criminal convictions have been overturned, 17 of which involved inmates on death row, according to the Innocence Project of Florida." And that's with DNA. If you extrapolate to those cases without DNA, a not insignificant percentage of innocent people languish behind bars. Prosecutors, remember you have a duty not only to convict the guily, but also to protect the innocent Futhermore, every innocnet man in prison for the crime means the guilty party is still out there committing the same crime over and over again. You do society no good in your misguided efforts to obtain conviction at all costs. Maybe we should indeed go to the European model.

Posted by: anon | Dec 20, 2009 10:01:25 PM

What... have... we... done...?!?! Thank you, anon. Before, we were all stereotypes, driven by a desire to convict at all costs. We now see the light. What would we do without sanctimonious blog commenters to keep us on the straight and narrow?

Posted by: prosecutors | Dec 21, 2009 9:30:45 AM

I agree that innocence is a problem, and DNA necessarily only shows the tip of the iceberg (most cases don't involve relevant DNA evidence).

But, I am not sure why the fear of later reversal based on DNA would *now* cause doubts about proceeding with a prosecution. The issue in the DNA exonerations, generally, is that the convictions came before the advent of sophisticated DNA testing. We have that testing now. Sure, it will be refined and there are a few cases with unconclusive testing now that might yield more information in a few years. But most evidence now can be tested very reliably. So I don't see why there would be a fear of a later DNA exoneration if you are doing the due diligence on your testing now.

Of course, it is possible that the exonerations have, in general terms, shaken prosecutors' confidence in their ability (as well as the ability of the police, judges, and juries) to make judgements about evidence and guilt with the degree of reliability that should be required to impose a death sentence. Given the above-mentioned "tip of the iceberg" effect, I think that would actually be a rational reaction.

Posted by: Anon 2 | Dec 21, 2009 10:44:49 AM

Isn't this just a re-tread of the story about the DPIC press release that was the subject of a blog 48 hours ago?

Maybe we could just wait for the next press release rather than going over the same one twice.

Don't worry, we won't have to wait long. Let me guess as to what it will sound like: "The DPIC announced today that it has determined by independent testing that the Beltway sniper was innocent, and was executed only as a result of a conspiracy involving the prosecution, the courts and the Trilatteral Commmission. Newly released DNA sampling proves that the sniper, John Allan Muhammed, was, at the time of the shootings, actually in Kansas distributing food to the poor -- an activity he undertook shortly after leading choir practice. A DPIC spokesman could only say, shaking his head, that 'This shows Muhammed was every bit as innocent as that other victim of the prosecutorial conspiracy, Roger Keith Coleman."

Posted by: Bill Otis | Dec 21, 2009 10:56:16 AM

We don't have the death penalty down here in Australia, however we are having more and more convictions overturned due to DNA exoneration. Several recent cases (and one where a male in his 30s convicted of rape, was released after 6 years) involved errors in the initial DNA analysis as opposed to 'new' DNA evidence coming to light. It's alarming and a very hot topic down here right now.

Posted by: luxury duvet covers | Dec 21, 2009 3:05:02 PM


Nice rant.

But seriously, death sentences are down for a few reasons other than innocence. Chief among those reasons is that prosecutors are narrowing the selection of cases in which they seek death generally, counsel for the accused are getting better at trying these cases, victims family members opposed to capital punishment on moral/religious grounds are getting more vocal, the Catholic church's teachings on the sanctity of life are starting to stick with rank and file Catholics(even in those who are Witherspoon qualified), Atkins/Roper, and most importantly LWOP is a more widely available sentencing options.

Posted by: karl | Dec 21, 2009 9:44:29 PM

Haven't death sentences been going down largely because there are less capital murders being committed? Plus, all death-penalty states now offer life-without-parole as an option in jury sentencing--thus making it easier for juries to spare murderers' lives.

Posted by: Alpino | Dec 22, 2009 11:22:51 AM

The reason capital sentences for murder dropped is that the number of capital murders dropped (along with murder generally).

I am unaware of any documented evidence supporting the claim that the teachings of the Catholic Church had anything to do with it.

Posted by: Bill Otis | Dec 22, 2009 12:47:59 PM

Isn't one difference between capital murder and non-capital murder a matter of "juking the stats?" See generally, The Wire, seasons three to five.

Posted by: = | Dec 22, 2009 2:53:50 PM


Capital sentences have been dropping faster than the murder rate. Again, your reason capital sentences are dropping faster than the murder rate?

Posted by: karl | Dec 22, 2009 10:19:44 PM

Karl --

I believe the premise of your question is incorrect. Could you provide statistics from an unbiased source (the DPIC is not an unbiased source).

Posted by: Bill Otis | Dec 22, 2009 10:36:49 PM

Bill, why don't you provide countering stats instead of just accusing anyone who disagrees with you of bias or attributing views to them nobody's ever expressed? Karl's right about the data; you're just obfuscating.

Posted by: Gritsforbreakfast | Dec 27, 2009 1:23:24 PM

Grits --

How dreadful that I should ask a poster to provide the actual numbers when he states, without sourcing or attribution, what those numbers supposedly show. The shame of it all!

Posted by: Bill Otis | Dec 28, 2009 7:33:43 PM


DoJ is one of the sources for the comment new death sentences are falling faster than murder rates. I didn't realize that DoJ wasn't an unbiased source, which produces stats both on murder and new death sentences. albeit their data is nowhere near is as current (there's is 2008 data sets, DPIC's current as of a few weeks ago) as DPIC who you blast. DPIC, whether you like it or not, is the singularly best nongovernmental source on death penalty data and generally beats the DoJ on getting numbers out by 10-11 months.

Look, I realize facts are stubborn things. I also realize that you have your dogmatic shtick about anyone who opposes you are clearly a dunderhead, communist, or just simply wrong. But again, new death sentences have dropped faster than the murder rate, your proof -- other than just another dogmatic rant -- that DoJ & DPIC are wrong is what?

Posted by: karl | Jan 1, 2010 7:35:34 PM

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