THE STATE OF THE DEATH PENALTY

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Date: Jan. 2019
From: Notre Dame Law Review(Vol. 94, Issue 3)
Publisher: University of Notre Dame Law School
Document Type: Article
Length: 21,609 words
Lexile Measure: 1760L

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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 noncapital 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 statewide 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.

INTRODUCTION 1256 I. STATE DEATH SENTENCING PATTERNS 1262 A. Prior Research on State Death Sentencing 1262 B. Data Sources 1264 1. Death Sentencing Data 1264 2. Homicide Data 1265 3. LWOP 1266 4. Judge Versus Jury Sentencing 1266 5. Capital Defense Regimes 1266 C. Empirical Strategy 1268 II. FINDINGS: EXPLAINING THE DECLINE IN DEATH SENTENCING 1269 A. Overview of Findings 1270 B. Homicide and Capital Sentencing 1271 C. State Adoption of Life Without Parole 1274 D. State-Level Capital Defense 1278 E. State Ring v. Arizona Compliance 1282 III. PRACTICAL AND CONSTITUTIONAL IMPLICATIONS 1288 A. Structural Sixth Amendment Implications 1288 B. Policy Implications 1291 C. Eighth Amendment Implications 1292 D. Implications for Future Death Penalty Trends 1294 CONCLUSION 1295 APPENDIX A 1297 APPENDIX B 1308 APPENDIX C 1309

INTRODUCTION

Use of capital punishment is declining in America. Death sentencing has fallen to a modern low and executions are increasingly rare. (1) While nineteen states have abolished the punishment, that is not a good explanation...

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Gale Document Number: GALE|A579538693