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February 27, 2018

"The State of the Death Penalty Decline"

The title of this post is the title of this notable new paper now available via SSRN authored by Brandon Garrett and Ankur Desai.  Here is the abstract:

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s.  In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty.  What explains this remarkable and quite unexpected trend?

In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences.  First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial.  Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury.  Third, states at different times have created state-wide public defender offices to represent capital defendants at trial.  In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing.

We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level.  However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors.  The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors.  These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.

February 27, 2018 at 05:21 PM | Permalink


The death penalty is healthy and lively in Italy. They call it suicide.

Posted by: David Behar | Feb 27, 2018 10:50:00 PM

Is the imposition of any death penalty a per se indication of lawyer malpractice? That is implied n the review. I would like to see death penalty sentences all result in lawyer malpractice claims. To deter.

Posted by: David Behar | Feb 28, 2018 11:56:15 AM

DB is a severely brain damaged child.

Posted by: Claudio Giusti | Feb 28, 2018 1:30:55 PM

Claudio. Explain to the class the difference between inadequacy of counsel and lawyer malpractice. I cannot get the lawyers here to explain the difference. One diff is that an appellate judge has already determined deviations from due care. Only damages need be argued.

Posted by: David Behar | Feb 28, 2018 2:44:58 PM

fanculo, stronzo.

Posted by: Claudio Giusti | Feb 28, 2018 3:48:30 PM

Claudio wants us to pass to another student.

One you lawyers should try to answer this important question.

Posted by: David Behar | Feb 28, 2018 10:04:37 PM

David, we have. First, and most significant difference, is the parties. Ineffective assistance is an action between the State and the defendant. Legal malpractice is an action between the defendant and defense counsel. Second difference is the elements -- although those differences may be merely semantics than real. For ineffective assistance, the elements are a specific act of incompetence and prejudice (defined as a reasonable probability of a different result). For legal malpractice, the elements are a breach of duty (most likely the duty to provide competent representation and causation of a harm (that with competent representation the result would have been different. It is theoretically possible that an attorney error may be sufficient that there is a reasonable probability (i.e. more than a theoretical possibility) of a different result but not sufficient that a judge/jury will conclude that it is more likely than not that the result will be different.

Bottom line is that a finding of IAC does not necessarily mean that there was legal malpractice. On the other hand, I do agree with your position that a findng of IAC should automatically result in a referral to the disciplinary counsel to determine if the incompetence warrants some discipline. (With the understanding that such a rule might make judges less likely to find that a tactical mistake by counsel rises to the level of incompetence.)

Posted by: tmm | Mar 1, 2018 10:50:02 AM

"First, and most significant difference, is the parties. Ineffective assistance is an action between the State and the defendant."

Can you explain that more? The defendant is the client, not the State. I understand the trial is not about the lawyer, but about the sentencing of the defendant, and the declaration of IAC is collateral. I understand the IAC is about the Sixth Amendment right to a lawyer, and the judge is not discussing malpractice.

I agree with you about the Disciplinary Counsel. It is rare to punish a lawyer, except when a judge files a complaint. Then the lawyer is frequently sanctioned. There is a duty to report a lawyer who is violating a rule of conduct. Do appellate court judges who fail to report violate that rule? I assume the judge would file a complaint under 1.1. Competence.

As a civilian, I see IAC as part of the infinite number of mistakes in law that can be second guessed. Even though judges are experts, this claim is still subjective, just the feeling of the judge. These generate $millions in legal costs, and years of lawyer employment for appeals.

I am on the side of accuracy. I believe seasoned investigators should be deciding the appeals. They should be focusing on finding false convictions. Reliance on witness testimony and lack of physical evidence are the biggest problems causing false convictions. One testimony problem is even the implantation of false memories by police officers. The appellate investigators should review the recordings of the police interviews of witnesses.

Posted by: David Behar | Mar 1, 2018 12:02:04 PM

In Italy we have NOT capital punishment since 1877. It was restored by fascism in 1926 until 1947.
And DB is an idiot.

Posted by: Claudio Giusti | Mar 1, 2018 12:56:57 PM

“Duane Buck was charged with capital murder in Houston, Texas, in 1997. He was too poor to hire his own lawyer so the judge appointed two lawyers to defend him, one of whom has such an abysmal record in capital cases that the New York Times called him: “A Lawyer Known Best for Losing Capital Cases”. His performance in Mr Buck’s was consistent with this record.”

Posted by: Claudio Giusti | Mar 1, 2018 12:59:50 PM

In the typical IAC collateral-review case, the parties are the government (defending the validity of the conviction) and the former defendant (challenging his conviction). While the IAC claim involves the acts of the former attorney, he is not a party to the case and is, at most, a witness. The former lawyer does not get formally served with the pleading, does not get to file a response to the IAC motion, he does not get to call witnesses, and he only gets to testify if called as a witness. The malpractice case is between the former attorney and the former client, and the government has no role in the malpractice case.

As far as reporting, in the one case that I had where the lawyer was ineffective, my recommendation to the court was that the clerk should be directed to the send the judgment (including the findings) to the Chief Disciplinary Counsel. Appellate court is less significant because those opinions are usually published and (in theory) the chief disciplinary counsel could open their own investigation based on the published opinion. It is the state trial courts where the failure to report is more significant because those judgments are not published. MOst of the times the complaint would be under 1.1. competence, but some IAC complaints involve communication (e.g., failure to inform client of plea offer) or diligence (missing deadlines for filing or responding to motions).

Posted by: tmm | Mar 1, 2018 1:59:02 PM

"While the IAC claim involves the acts of the former attorney, he is not a party to the case and is, at most, a witness."

Now I understand your point. Thank you.

Posted by: David Behar | Mar 1, 2018 10:53:37 PM

Claudio. I am with you. I want the US to adopt the Italian way. In Italy, there happens to be a coincidence between being a very violent, disruptive prisoner and committing suicide. Your prison suicide rate has been declared a crime against humanity by pro-criminal scum at the European bureaucracy.

That is the proper way it should be. I support the Italian Way. It works, and it costs a carton of cigarettes waved by the guards. The prisoners understand and take care of business.

Posted by: David Behar | Mar 1, 2018 10:59:38 PM

DB is not only an idiot, he is also a liar .

Posted by: Claudio Giusti | Mar 2, 2018 6:51:10 AM

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