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August 26, 2011

"Minority Practice, Majority’s Burden: The Death Penalty Today"

The title of this post is the title of this lengthy new article by Professor James Liebman and Peter Clarke, which is now available via SSRN and is forthcoming in the Ohio State Journal of Criminal Law. Here is the abstract:

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation’s 3000-plus counties and their populations are considered.  This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities?  The answer to that question -- that a combination of parochialism and libertarianism characterizes the communities most disposed to impose death sentences -- helps to answer the next question addressed here: Why so few death sentences end in executions?  It turns out that the imposition of death sentences, particularly for felony murder (a proxy for the out-of-the-blue stranger killings that generate the greatest fear among parochial communities), provides parochial and libertarian communities with a quick and cheap alternative to effective law enforcement. And that alternative is largely realized whether or not death sentences are ultimately carried out.  This explanation sheds light on two other criminal law conundrums -- the survival of the most idiosyncratic manifestation of the felony murder doctrine (which mysteriously transmogrifies involuntary manslaughter into capitally aggravated murder) and the failure of the death penalty to have a demonstrable deterrent effect (which is not surprising if the death penalty operates as a weak substitute for, rather than a powerful addition to, otherwise effective law enforcement strategies).  The explanation also reveals a number of costs the capitally prone minority imposes on the majority of citizens and locales that can do without the death penalty, including more crime, a cumbersome process for reviewing systematically flawed death sentences whose execution is of less interest to the death sentences’ originators than their imposition, and a heightened risk --to the judicial system as well as individual defendants -- of miscarriages of justice.

These explanations, in turn, beg the most important and difficult question considered here.  Why do the majority of communities and citizens who can live without the death penalty tolerate a minority practice with serious costs that the majority mainly bears? With a bow towards Douglas Hay’s famous explanation for the survival over many decades of eighteenth century England’s no less universally vilified death-sentencing system --which likewise condemned many but executed few -- we offer some reasons for the minority’s success in wagging the majority.  In response to recent evidence of a (thus far largely counterproductive) majority backlash, we conclude by offering some suggestions about how the majority might require the minority of death-prone communities to bear more of the costs of their death-proneness without increasing the risk of miscarriage of justice.

August 26, 2011 at 10:59 AM | Permalink


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A simple answer is that most communities never have enough capital murders that come to trial to warrant serious consideration of the death penalty.

Posted by: MikeinCT | Aug 26, 2011 2:06:21 PM

I always have to smile when a life-long abolitionist purports to give a little friendly advice to the majority that supports the death penalty (and would like to see it carried out more often) concerning the "tough questions" it should ask the minority of jurisdictions that manage to actually do what the majority merely wants to do -- and would do more often but for Prof. Liebman and his litigious allies.

Wow. There are too many ironies in there for me to count.

Posted by: Bill Otis | Aug 26, 2011 5:22:17 PM

I think the first burst of real death penalty should come during a national emergency. A Lincoln class executive, preferably a licensed lawyer, has the entire lawyer hierarchy of 15,000 people arrested. Each gets an hour's fair trial, with lay judges. The sole evidence is their legal utterances, and not any collateral corruption gotcha. They are summarily executed for their insurrection against the constitution, with a bullet to the head in the court basement. If any are under 60, they may sign organ donor cards to try to redeem the damage they have done to the nation.

Once this shield of criminals is eradicated, then the death penalty would end crime by the attrition of 10,000 violent repeat offenders a year, at the earliest age tolerable to the public (14? the age of real adulthood)to prevent their entering into the most productive part of their criminal careers, in their 20's and thirties. If you executed a repeat violent offender at 20, you prevent 200 violent crimes a year each. You have eliminated half of all violent crime. The other half is committed by drunk people (both murderer and victims are drunk, crazy, and stupid). No one cares about those, except to say, good riddance to bad rubbish.

Posted by: Supremacy Claus | Aug 26, 2011 9:59:46 PM


Keep smilin'.

Posted by: Al Ammo | Aug 27, 2011 1:47:53 PM

I am interested to see the county-by-county analysis. I imagine that when you look at the DP through that prism, rather than the less granular state-by-state viewpoint, the distribution starts to look really extreme. I know that in my state, which is generally seen as one of the most pro-DP, the vast majority of death sentences come from just a few counties, and there are dozens of counties that have no post-Furman death sentences, and as far as I have been able to determine, these discrepencies go far beyond what might be explained by relative population or crime rates.

Posted by: Anon | Aug 27, 2011 4:19:54 PM

Al Ammo, I also would like to see the county-by-county analysis.

Posted by: truthseeker | Aug 29, 2011 11:18:16 AM

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