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February 11, 2022

"Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis"

The title of this post is the title of this new paper recently posted to SSRN authored by Aliza Cover.  Here is its abstract:

The death penalty is a uniquely severe punishment — the ultimate, irreversible act of violence by state against citizen.  Because “death is different” from all other punishments, the Eighth Amendment restricts its use, mandating that it “be reserved for the worst of crimes and limited in its instances of application.”  Capital punishment statutes must narrow death eligibility, meaningfully differentiating between those “worst” murderers, who may be subject to the death penalty, and the rest of murderers, who may not.

This Article reports the findings of an empirical study designed to evaluate how effectively Idaho’s capital punishment scheme serves this constitutional narrowing requirement in practice.  The study involved a review of first-and second-degree murder convictions in cases filed from June 2002 through the end of 2019 to determine how many of these cases would have been factually eligible for the death penalty under the terms of Idaho’s statutes — regardless of whether they were pursued as capital cases by the prosecution.  This review revealed that 86–90% of all murder convictions were factually first-degree murder cases, and 93–98% of factual first-degree murder cases were eligible for the death penalty.  These findings strongly suggest that Idaho’s statute fails to fulfill the constitutional narrowing requirement.

The study also produced results on how frequently the death penalty is sought and imposed in death-eligible cases in Idaho.  The prosecution filed a notice of intent to seek the death penalty in 21% of factually death-eligible cases; the prosecution proceeded to a capital trial in 5% of death-eligible cases; and a death sentence was obtained in 3% of death-eligible cases.  These findings — which combine a high rate of death eligibility with a low rate of death-charging and death-sentencing — strongly suggest that death is an “unusual” punishment in Idaho, with important implications for its constitutionality under Furman v. Georgia.

February 11, 2022 at 01:55 PM | Permalink


Doug Berman noted recently, "Idaho has only carried out only three executions over the last 50 years and none in nearly a decade." Given that much, the author's concern that the DP might be overused in Idaho strikes me as just another academic dancing on the head of a pin. But I guess you gotta publish something.

The author also says, "These findings — which combine a high rate of death eligibility with a low rate of death-charging and death-sentencing — strongly suggest that death is an “unusual” punishment in Idaho, with important implications for its constitutionality under Furman v. Georgia."

Actually, it has zero implications for the DP, since Furman, which had no majority opinion, was superseded decades ago, and the Court that wrote it has changed considerably and is now producing opinions like Baze and Glossip. If we were take the author's claim seriously, it would mean that a state that's particularly careful and circumspect about applying the DP -- presumably something liberals want -- can never use it at all.

Like I say, you gotta publish something.

Posted by: Bill Otis | Feb 11, 2022 3:43:46 PM

Bill has hit on the essential contradiction, i.e., that liberals spent decades arguing for Supreme Court decisions that made the DP harder to get. The result was fewer death sentences. Now liberals say that the DP is Constitutionally "unusual" because it isn't used very much, the very result they sought.

Obviously it is absurd to cite Furman as the purported state of current law. Maybe the writer intended it as a kind of shorthand, the way people sometimes cite Roe as the fount of abortion law, even though it too has been superseded (although Roe at least had a majority at the time).

Posted by: Marc Shepherd | Feb 11, 2022 4:57:35 PM

The article quotes a recent decision (Hidalgo) where four justices endorse precisely this theory, and, to Marc's point re Roe, in reference to Furman and the cases distilling its holding (Gregg, Lowenfeld, etc.). As for the constitutional remedy to the problem identified in Furman, I thought it was a narrowly drawn statute that was regularly and predictably applied. I'm not sure that's a liberal or conservative policy, but that was always my read on what Furman requires

Posted by: John | Feb 11, 2022 6:26:11 PM

John --

Hidalgo isn't all that recent. It's a month shy of four years old. And the four justices who seemingly endorsed a broad-based Furman-type theory are down to three. I also note the four at the time said they didn't support cert because of an insufficiently developed record. One might suspect they didn't support cert (for which they had the votes) because they knew they would lose on the merits 5-4. They're really good at counting.

Assuming that one can divine what Furman said was a constitutional problem when you have nine separate opinions and no majority holding (something I doubt), the most reliable source for figuring out what the Court thinks the answer is -- if it still believes an "answer" is needed almost five decades later and with a lot of capital jurisprudence under the bridge -- I think the Court itself has given a pretty good hint in Baze and Glossip.

I debated this subject with Prof. Carol Steiker of Harvard Law last year (here: https://www.c-span.org/video/?509995-2/death-penalty-debate&start=2637), and we didn't agree on much, but we did agree that the present SCOTUS is more friendly to the death penalty than any since the Sixties if not before.

Posted by: bill otis | Feb 11, 2022 11:53:24 PM

Let's not forget, Life Without Parole is almost like the death sentence in most states. Unlike the death penalty though, your appeals are limited, but you are still sentenced to die in prison.

Posted by: Jeff | Feb 13, 2022 10:08:55 AM

I agree that SCOTUS may be ready to overturn any number of death penalty precedents, including those re narrowing. I hope that we can all be clear that this what they are doing. Baze & Glossip were not about narrowing; they were lethal injection/method of execution cases. Those two cases may show which way the winds are blowing at SCOTUS at the Roberts/Thomas Court, but they don't purport to overturn the long line of cases--from the Berger and Rehnquist courts--applying Furman.

Posted by: john | Feb 14, 2022 12:54:29 PM

@john: Furman and its progeny remind me a lot of Roe, in that there's no chance the current Court would endorse that line of thinking if it came to them as a new issue today.

The difference with Roe is that states keep enacting clever new statutes that dance right up to the edge of what they believe the Court will allow, if not beyond it. All of those statutes eventually make it to the Court, giving the Justices regular opportunities to whittle away at a precedent they never would have approved if they had been around at the time.

The Death Penalty is not nearly as salient an issue. You don’t find huge numbers of politicians running for office on a platform of overruling Furman. I mean, for decades almost every serious Republican presidential candidate has made the repeal of Roe a priority. They aren’t stupid: they know that abortion is a key issue, maybe THE issue, for many of their voters. There is nothing like that kind of energy around expanding the Death Penalty.

Posted by: Marc Shepherd | Feb 14, 2022 3:16:35 PM

john --

"Baze & Glossip were not about narrowing; they were lethal injection/method of execution cases. Those two cases may show which way the winds are blowing at SCOTUS at the Roberts/Thomas Court..." Yes, that's what I was getting at. The ways of thinking about capital punishment that held sway on the Court at the time of Furman have largely gone the way of the Brontosaurus. President Biden's forthcoming nominee won't be any more opposed to the DP than Breyer has become, and might well be slightly less hostile, in the mode of Justice Kagan.

Posted by: Bill Otis | Feb 14, 2022 4:06:42 PM

Then it sounds like we are in agreement on a couple fronts: (1) no recent jurisprudence undermines the legal premise of Cover's paper and (2) the relevant jurisprudence may be on life support given the dramatic changes in court personnel.

Marc, Agreed re popular sentiments. Indeed, if there's growth in opposition to the death penalty, it seems to be coming from the right.

Posted by: John | Feb 14, 2022 4:16:15 PM

John --

As our three-decade long crime spree peaked in the early Ninties, support for the DP peaked with it, at 80%. As the crime and murder rates plummeted over the next generation, support for the DP fell with them, to 54% where is has been for the past four years or so, see https://news.gallup.com/poll/357440/death-penalty-support-holding-five-decade-low.aspx ("Americans' opinions about the death penalty have been relatively stable in recent years after a decline in 2017. The current 54% of U.S. adults who say they favor the death penalty for convicted murderers is essentially unchanged from readings over the past four years and remains lower than any other measurement since March 1972 (50%)."

There's a reason the erosion of support for the DP stopped in 2017, to wit, the murder rate had started back up.

Furman never had a majority holding, but for however that may be, time has passed it by. Citing Furman may not be an analytical blunder, but it will get you as far in a Supreme Court brief as citing bell bottom jeans will get you at next week's fashion show.

Posted by: Bill Otis | Feb 14, 2022 5:18:27 PM

I'm afraid I agree that citing precedents a majority of the Thomas Court disagrees with may go nowhere, even if, as in the case of Roe and Furman, they have been repeatedly affirmed by ideologically diverse majorities in subsequent cases. As we are seeing in the voting rights and reproductive rights contexts, the Court might not even take the time to overrule the precedents before letting the relegating them to the history books.

Posted by: John | Feb 14, 2022 5:40:52 PM

John --

Precedent and stare decisis are among the most fascinating topics in law, because they cut both ways without notice, and thus pretermit the usual ideological tilting. What one person might say about the precedential authority of Hobby Lobby and Citizens United, another might say about Roe and Furman (assuming the wildly fragmented Furman can count as precedent, about which I have my doubts). UVA Law Prof. Richard Re has an insightful article about it in the 2022 Texas Law Review, https://texaslawreview.org/precedent-as-permission/

Posted by: Bill Otis | Feb 14, 2022 8:37:12 PM

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