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Death Sentencing Rates

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The number of death sentences imposed in the U.S. has been dropping for the last 11 years.  Those interested in spinning can claim a single cause consistent with their viewpoint, e.g., (1) the American people are turning away from the death penalty; or (2) sentences are down because murder is down because the death penalty is working.  Reality is a bit messier, as it usually is.

DPsPerMurder2.jpgThis graph shows the number of murders, number of death penalties, and the ratio of the two.  Click on the graph for a larger version.  To get the three numbers on the same scale, I divided the murders by 100 and calculated the ratio as death penalties per 10,000 murders.  The two death penalty numbers are lagged one year so that the sentences more or less match up with the crimes.

The decline in the number of death sentences imposed began in the late 1990s.  In this period, the decline in the murder rate was the predominant factor.  While the number of death sentences was declining overall, death sentences per murder were actually rising.
In 2000, the number of murders bottomed and began to rise slowly with population growth, although the murder rate was nearly flat at 5.5 to 5.8 / 100k throughout 1999 to 2007.  The ratio of death sentences to murders fell, though, and so the number of death sentences also continued falling.

The death sentence to murders ratio stabilized in 2006-2009, shown at 2005-2008 on the graph due to the lag.  It is too early to declare a trend, but clearly the rate has not fallen further in these years.  The FBI's 2009 murder number shows a substantial drop, with 1200 fewer murders than the year before and a rate down to 5.0 / 100k.

So, no surprise, the number of death sentences in a given year is determined by multiple factors.  Undeniably, there are about 10,000 fewer people murdered each year in America than there were at the peak, and that is a big chunk of the drop in death sentences.  Also undeniably, there is greater selectivity in deciding which murderers to sentence to death.  I am not convinced the Supreme Court's categorical exclusions are that big a factor.  The BJS Capital Punishment 2004 report, Table 7, says only 2.1% of the prisoners on death row as of 12/31/2004 had been under 18 at the time of arrest.  Retardation has long been recognized as a powerful mitigating factor, and few genuinely retarded people were sentenced to death even before Atkins v. Virginia.  (After Atkins, of course, there was a notable surge in death row inmates diagnosed as retarded by defense-team psychiatrists, but that is a different problem.)

So why the greater selectivity?  I have heard anecdotically from prosecutors that the number of cases they thought appropriate for the death penalty dropped even faster than the murder rate, but there is no way to quantify that. The fatigue factor from endless delays on appeal and the reduced likelihood that the sentence will be carried out in the foreseeable future could sway a decision in a close case.  The mushrooming cost as the rule of Lockett v. Ohio continues to metastasize is one that elected officials cannot ignore.

In a recent book, Stay of Execution, Charles Lane of the Washington Post discussed the effect that crime rates have on public demand for tough sentencing, including the death penalty.  (I will have a full review of this very interesting book a bit later.)  If he is correct, then falling murder rates have a two-fold effect on death sentence rates. There is a direct effect, obviously, in that the pool of murderers to sentence is smaller.  The indirect effect is that a lower crime rate means reduced fear of crime and less public demand for the death penalty.  The latter effect would continue after crime rates stop falling and stabilize at a lower level.

Are the well-publicized (and often exaggerated) "exonerations" a factor?  If prosecutors are more reluctant to seek the death penalty in cases where the proof of identity of the perpetrator is less than airtight, that could account for a small portion of the drop.  (This is a desirable reduction, in my opinion.)  I doubt it is a large factor, though, because the vast majority of capital cases involve no such doubts.  See Schlup v. Delo, 513 U.S. 298, 324 (1995).  Jurors who had qualms on that basis would not likely remain troubled after being presented with a guilt case that eliminated any such possibility in the case before them.

If the trend of the last several years continues (a big if, admittedly), perhaps we have reached a new equilibrium where about 7 murderers out of 1000 are sentenced to death.  That number could go back up if appeals are resolved in a reasonable time and if costs are brought under control, but it is not likely to return to the 1999 peak of almost 18.  Nor does it need to.  We need to identify the murderers most deserving of the penalty and actually carry it out within 5 or 6 years in the typical case.  The realistic possibility of actual execution carries the bulk of the deterrent threat, and that is where our efforts need to be focused.

Murder rates and numbers of murders are from the FBI, Crime in the United States 2009, Table 1. Numbers of death sentences per year are from the Bureau of Justice Statistics, Capital Punishment, 2009--Statistical Tables, Table 19.

22 Comments

Very interesting post. I think 7 death sentences, or even 18, death sentences are far too low. But that's for another day.

A very good post. I dispute that the death penalty has any kind of deterrent effect though.

Nor do I have any faith that those 7/1000 represent the worst of the worst, rather than a randomly selected bunch of murderers.There should be a nationwide study into the reasons why prosecutors pick death in particular cases, to see if the system has recovered from the flaws identified in Furman before any more death sentences are handed out. I do not think it has, nor does Justice Stevens who oversaw the birth and development of the modern death penalty regime.

bhaal --

There is never going to be agreement on what amounts to the "worst of the worst," nor is answering that question important even if it were possible. The important question is whether murderer X deserves the DP, not whether murderer Y deserved it slightly more (but got off or was never caught to begin with).

The Quixotic search for the "worst of the worst," like proposed commissions to "study the problems" of the death penalty, are enterprises designed to go on forever, and thus effectively to end the death penalty without ever having to satisfy either the voters or the courts that it should, in fact, be ended. But a democracy under the rule of law does as the voters and the courts say, not what a minority demands.

Bill - (my reading of) Furman disagrees with you - executing the worst of the worst is important and if a system does not do so it is an unconstitutional violation of the Eighth Amendment.

Some aggravating factors used to determine whether a defendant is death eligible are hopelessly vague and intended to ensure that prosecutors can pick and choose which defendants live or die. Every murder is (to pick just two aggravators) 'especially heinous, atrocious or cruel' and most are committed 'in a cold, calculated manner without pretense of moral or legal justification'.

Eliminating aggravators such as those, which are often the only ones used or are used to 'thumb the scales' in favor of death would be a step in the right direction. I see no reason why they couldn't be replaced with actual, objective factors, such as the defendant having been convicted of murder in the past, or committing a serious felony in the past, killing a child or killing more than one person in the same serious of events. Doing so would also comply with Furman, but I fear the rule of law is too high a price to pay for the power to choose who to try and kill.

bhaal --

Furman is not the law; indeed, it was only barely the law the day it was decided. If I recall correctly, there were nine opinions, and no opinion for the Court. There was only a judgment of the Court, which was that Furman could not be executed. Furman was in any event superseded by Gregg, which does not require that only the very worst be executed (something that the following three-plus decades and roughly 1200 executions have proven).

Prosecutors do not "pick and choose which defendants live or die." Juries do that, and defense counsel have a significant say in jury selection, more so in capital cases than in others.

You are correct in observing that the definition of some aggravators is, or might be, subjective, e.g., "'especially heinous, atrocious or cruel' and most are committed 'in a cold, calculated manner without pretense of moral or legal justification'." But while subjective, they have a discernable content, and they are no more liable to subjective variation than the most well-established standard in criminal law -- "reasonable doubt." That too has no specific definition, and most jurisdictions do not allow the judge to try to define it even if the jury asks (I had cases on that question). But it is applied almost entirely without controversy in criminal cases, including capital ones.

There are two other problems with a "worst of the worst" requirement. One is practical: How could it ever be proved? The sentencing jury would have to survey in detail hundreds if not thousands of other cases (going back how far?), something it could not possibly do. And in making that survey, it would have to employ vastly more subjectivity than exists in the system now. Are the Petit family murders "better" than those committed by Bundy? The question is just mind-boggling.

In essence, then, a worst-of-the-worst requirement would, in practice, be the end of the road for the DP. That may well be what abolitionists intend, but as long as the courts and the public approve the DP, which they do, there MUST be a practical way to implement it, cf. Baze.

The other difficulty with the worst-of-the-worst standard cuts the other way: Assuming arguendo that we could answer the question of who, exactly, comprises the worst of the worst, does that mean that only the nastiest one percent of killers could be executed? Or the nastiest five percent? Or ten or twenty percent?

One could certainly reasonably argue that the grisliest ten percent of killers qualify as the "worst of the worst." But since there are about 16,000+ murders per year, that would mean that 1600+ killers could be selected to be tried on capital charges, which, I believe, considerably exceeds the annual number we put on trial now on capital charges.

Presumably this is not what you want, but you'd have a hard time convincing the public that ten percent is too many killers to have to face a death sentence. Indeed, according to Gallup, half the public believes the death penalty is use too little RIGHT NOW, when we don't have anything like that number of capital trials.

The studies the opponents have done already are far more than sufficient to refute the notion that the murderers sentenced to death are "randomly selected." In the opposition's favorite study, the Baldus study in Georgia, life-sentence cases and death-sentence cases were scored on a mechanical "culpability index." The median death-sentence case was above the 95th percentile of the life-sentence cases. Even with the inherent drawbacks of a mechanical culpability scale, that is sufficient to rule out a random-selection hypothesis.

The "especially heinous, atrocious, and cruel" circumstance was proposed by the American Law Institute in its 1962 draft of the Model Penal Code. It was copied by many states in the belief that if they adopted the proposal of this prestigious organization their statutes would survive any constitutional attack. They were mistaken. The Supreme Court threw it out in Maynard v. Cartright, 486 U.S. 356 (1988). Nobody has been sentenced to death on that circumstance alone, without further qualification, in over 20 years.

Where are you getting your information, bhaal? Sounds like you are swallowing uncritically a lot of bogus information.

The answer to the "worst of the worst" question seems best left up to basic Civics (which used to be taught in schools).

It was once a founding principle of this country that issues of governing and law were to be decided by the lowest level of government possible. A jury, usually chosen at the county level, is the lowest level of government possible and THEY should determine if the murderer is the "worst of the worst." The state and federal governments need to stay out of it until/if the defendent's rights are incorrectly abridged.

The inevitable questions of equal treatment are specious at best. Different jurisdictions have different laws for any number of issues. If my town has a $150 speeding fine and the next town over fines $100, I cannot get my fine reduced. Why should a murderer?

Finally, I know that this blog is populated by mostly attorneys and I find the perspective interesting and illuminating. However, I respectfully address this issue from the standpoint of a layperson and wholeheartedly wish that the debate could be framed from the position the founders intended instead of precedent. If I am not mistaken, this manner of practicing and studying law only gained traction in the 1920's (Progressives anyone?) and is little more than an excuse to decide cases based on paying homage to what may be a poorly decided case of yesteryear. Almost universally assuming that a prior case was decided correctly and basing a current decision on it is a textbook definition of a logical fallacy. It may be a fantasy to think we should go back to the constitution and our founding principles but, hey, it's my fantasy.

Do aspiring attorneys even take classes on the constitution and constitutionalism anymore?

TarlsQtr, you are mistaken that courts only started relying on precedent in the 1920s. The method of studying law did change around that time, but the extent of reliance on precedent by courts did not.

The Supreme Court does reexamine its precedents occasionally and does consider original understanding. There have been substantial changes in the law regarding the Confrontation Clause and the right to jury trial, overruling precedents and restoring original understanding at least as the majority of the justices read it.

Regrettably, though, a majority does not yet regard original understanding as completely controlling, as illustrated in the Gitmo habeas case.

TarlsQtr --

Welcome to the site. I have no doubt readers will benefit from your sharp mind, as they did on the NYT Death Penalty Forum a zillion years ago.

The question whether and to what extent the Founders viewed precedent as persuasive, even if incorrectly decided, is a really good one. One of the better students in the course my wife and I just finished teaching at Georgetown Law School is on exactly that issue. I expect to learn something from his paper. If and when I do, I'll have more to say.

I forget sometimes that I'm talking to people who view the original understanding of the Eighth Amendment as controlling. One which would render it a dead letter and permit the execution of a seven year old (Roper v. Simmons, Justice Stevens Concurring). I just don't think we've got enough common ground for it to be worth my while to comment here any further. Kent, please delete my account or tell me how to do it.

There are multiple reasons why executions are declining. The reduction in the homicide rate is definitely a factor, but so too is the increasing willingness of prosecutors and juries to opt for life sentences.

As America starts restricting the use of the death penalty only to the "worst of the worst" murderers (who are the least likely to be deterred by the death penalty), the death penalty will become increasingly redundant as a law enforcement tool.

Louisiana, for example, has executed only 3 murderers in the past ten years. California has only executed 13 inmates since 1976. Even in Texas and Virginia, execution numbers are dramatically on the slide.

As for the notion that the states need to streamline the appeals process, there is a slim chance of that happening, at least anytime in the near future. In the majority of states, the gargantuan delay between the time of sentencing and the time of execution is a very good reason to abolish the death penalty. The chances of the death penalty being "reformed" in these states are pretty slim.

In 1910, only four countries had abolished the death penalty: Colombia, Venezuela, Costa Rica and San Marino. Today, the vast majority of nations have discarded it.

In light of this article, I predict that one hundred years from now, the death penalty in the United States will be either abolished or made virtually redundant.

The death penalty in the United States is dying. The supporters of the death penalty are on the losing side of history.

"In light of this article, I predict that one hundred years from now, the death penalty in the United States will be either abolished or made virtually redundant."

If you'd said that in 1872, you'd be right on the money. A few years later than that, not so much. The problem with your crystal ball is that it doesn't come with a warranty. The other problem is that it's only a crystal ball.

"In 1910, only four countries had abolished the death penalty: Colombia, Venezuela, Costa Rica and San Marino. Today, the vast majority of nations have discarded it."

As a reward for its "progressivism," Venezuala now has the highest murder rate in the world among countries of any size at all. This is according to Amnesty International.

But I digress. The truth is that most of the world's population by a fare-thee-well has the death penalty, including all the four largest countries (China, India, the USA and Indonesia). It predominates in Africa, the MidEast, the Subcontinent, the Carribean and the Orient. Are white Europeans really so much superior to the people who live in those places? How did that happen?

"If you'd said that in 1872, you'd be right on the money".

In 1872, all felonies in the United States were capital offenses. Look at how the USA has evolved since then. This is a good trend.

"The other problem is that it's only a crystal ball."

Indeed. It is based on national trends and educated predictions.

"As a reward for its "progressivism," Venezuala now has the highest murder rate in the world among countries of any size at all."

That is a red herring and you know it. The presence of the death penalty in Venezuela won't change that reality. There are a plethora of reasons why Venezuela is a violent country.

Oh, and please spell "Venezuela" properly.

"The truth is that most of the world's population by a fare-thee-well has the death penalty, including all the four largest countries (China, India, the USA and Indonesia)."

China is one of the world's worst human rights violators, so that does not surprise me. The Chinese would be better off without the death penalty, especially since they use it for suppressing political dissenters.

And India has the death penalty in name only.

"It predominates in Africa, the MidEast, the Subcontinent, the Carribean and the Orient".

There is growing opposition in Africa to the death penalty. Many African countries have either discarded it or have failed to use it.

Yes, it is used widely in the Mideast (Otis, please spell "Mideast" properly), especially in countries like Iran and Saudi Arabia.

Also Otis, please spell "Caribbean" properly.

"Are white Europeans really so much superior to the people who live in those places?"

You choose to play the race card. I must be doing something right.

You also left out virtually all of Latin America.

The fact is that most countries have abolished the death penalty. That would have been unthinkable one hundred years ago.

It is unthinkable that the United States will abolish the death penalty in 2010. But in 2110, things will probably be different in light of both national and international trends.

"In 1872, all felonies in the United States were capital offenses."

That is not even remotely close to correct.

"That is not even remotely close to correct".

It is close enough, Scheidegger. You need to start looking at the bigger picture. When you examine the death penalty in 1872 and the decades immediately prior to 1872, you will discover that there were far too many capital offenses in the USA. That is why there were substantially fewer felonies in 1872 than there are today. And only a century prior to 1872, it was certainly true that all felonies in the colonies were capital offenses in accordance with English common law.

But during the 19th century, the death penalty in the United States was still proscribable for such crimes as homosexuality, burglary, arson, theft, grand larceny (including horse stealing), robbery, criminal assault, forgery, counterfeiting and a plethora of other offenses that would never be capital offenses today.

The United States has made an enormous degree of progress since then, and it will continue to do so as the 21st century unfolds.

ABOLISH --

"It is close enough, Scheidegger."

1. Excellent. You ride through the comments section on a high horse. While upon said horse, you tell an outright lie about the state of the law in the United States in the 19th Century. When this is pointed out to you, it does not cross your mind to apologize and correct yourself. Instead, your response is that your categorical (but wildly exaggerated) claim was "close enough."

Well that is just so FAR OUT. What other lies do you feel yourself entitled to announce on the theory they're "close enough?"

2. There is a certain type that goes surfing the Internet pointing out spelling errors. I should have guessed you'd be one.

3. Are you rude and belligerent to everyone, or just those who agree with the majority of Americans and disagree with you?

"You tell an outright lie about the state of the law in the United States in the 19th Century".

Hmmm. Now you call me a liar. I must be doing something right.

"What other lies do you feel yourself entitled to announce on the theory they're "close enough?"

You are starting to sound pretty desperate. The truth must hurt. You do nothing to rebut the facts that I have outlined. Your previous responses to my arguments were also factually dishonest.

"There is a certain type that goes surfing the Internet pointing out spelling errors. I should have guessed you'd be one".

Don't blame me for your inexplicable inability to spell. That's your fault, Ottis.

"Are you rude and belligerent to everyone, or just those who agree with the majority of Americans and disagree with you?

The antidote of populism is a weak antidote to the virus of moral relativism.

You are in no position to lecture me about being rude or belligerent. Your article on defense lawyers was proof of that.

I am unimpressed with you, Ottis. From a moral and intellectual standpoint, I look down on you.

I was actually going to wait for Ottis to fall for my trap of deliberately misspelling his name. But at this point, I have decided that I have had enough of him. And I have had enough of you too, Scheidegger.

Scheidegger, I would like to join bhaal and leave this blog.

Delete my account.

Let he who is without misspelling throw the first stoan.

I am away from the office today, but next week when I have my reference materials, I will respond further to the "close enough" comment.

I profoundly apologize to both of you, Mr. Otis and Mr. Scheidegger, for my vitriolic insults and juvenile behavior. My conscience is gnawing at me, and I know that God does not approve of my tempestuous, arrogant and condescending behavior. My behavior is not Christian, and it displeases God. Please feel free to delete my account in retaliation.

I also apologize for being WAY OFF about the US death penalty in 1882. However, I still have a valid point that there were far more capital offenses in 19th century America than there are today. The abolitionist trend is still on the move.

By the way, I also read that the government in Thailand is seriously considering abolishing the death penalty. Like America, it rarely executes people. This is another good sign of a growing international abolitionist trend. The death penalty is dying.

bhaal says:

"I forget sometimes that I'm talking to people who view the original understanding of the Eighth Amendment as controlling."

While I respect your strong opposition to the death penalty, I have no respect for your love affair with judicial activism. The only moral and legitimate way to interpret the US Constitution is to look at its ORIGINAL INTENT at the time it was drafted, even if this leads to a plethora of human rights violations.

I hate the death penalty. But as a conservative Republican, I hate judicial activism even more. The Constitution died in the 1930s under FDR's socialist agenda. The US Supreme Court is now a Council of Emperors.

There is no genuine alternative to originalism, bhaal. Judicial activism is always tyrannical.

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