Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2011 Minority Practice, Majority's Burden: The Death Penalty Today James S. Liebman Columbia Law School, [email protected] Peter Clarke Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Criminal Procedure Commons, Law and Politics Commons, Law and Race Commons, and the Supreme Court of the United States Commons Recommended Citation James S. Liebman & Peter Clarke, Minority Practice, Majority's Burden: The Death Penalty Today, 9 OHIO ST. J. CRIM. L. 255 (2011). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/463 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Minority Practice, Majority's Burden: The Death Penalty Today James S. Liebman* & Peter Clarke** Although supported in principle by two-thirds of the public and even more of the States, capitalpunishment 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 ofparochialism 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 parochialcommunities), provides parochial and libertariancommunities 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 surprisingif 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 capitallyprone 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 a Simon H. Rifkin Professor of Law, Columbia Law School. ** J.D. expected 2012, Columbia Law School. The authors are grateful to Marie Gottschalk, Austin Sarat, Carol Steiker and Jordan Steiker for their helpful comments on a draft of this Article and to Alexandra Blaszczuk, Lauren Gallo, and David Mattern for their superb research assistance. 255 256 OHIO STATE JOURNAL OF CRIMNAL LAW [Vol 9: 1 the judicial system as well as individual defendants-of miscarriagesof 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 miscarriageofjustice. I. A Local Institution.......................................258 II. A Minority Practice........................................263 A. Death Sentences.............. ........................ 264 B. Executions...........................................265 III. An Explanation of the Death Penalty's Localism... .......... 266 A. Parochialism................ ......................... 268 1. Parochialism Defined................. ............... 268 2. Death Sentencing Localities as Parochial Communities........269 B. Libertalanism ......................................... 273 1. Death Sentencing Localities as Libertarian Communities............273 2. The Death Penalty as a Libertarian Tool for Self-Protection.........275 3. The Death Penalty as a Libertarian and Parochial Tool for Self-Protection.... ............................... 277 C. A Parochial and Libertarian Explanation of the Resilience of the Felony-Murder Doctrine................ ............ 280 1. Felony Murder's Puzzling Resilience. .................... 280 2. Felony Murder's Symbiotic Relation to the Death Penalty.......... 281 3. Capital Felony Murder as a Tool for Parochial Self-Protection......285 4. Capital Felony Murder as a Tool for Parochial and Libertarian Self-Protection. ............................ 288 D. The Death Penalty and the Illusion of Self-Protection... ....... 289 IV. An Explanation of the Death Penalty's Frequent Imposition and Infrequent Execution........ ........................... 291 A. The Paradox at the Heart of the System.. .................... 291 B. A New View, from Without. .............................. 292 C. The True Course of a Capital Case..... .................... 296 1. The Trial Stage.......... .......................... 297 2. The Death Row Stage ............... ................ 299 2011] ]MNORITY PRACTICE, MAJORITY'S BURDEN 257 3. The Retrial Stage...................................302 i. The Parochial Response to Reversal. .................... 302 ii. The Libertarian Response to Reversal..... .............. 304 D. A New Explanation of Why Reversals Have No Chastening Effect.....................................305 V. The Costs of a Broken System: Imposed by Few, Borne By Many............308 A. Direct Costs Compared to Life Without Parole..... .............. 310 1. Additional Costs Per Trial.............................310 2. Additional Costs Per Appeal........................312 3. Additional Cost Per Execution..................... ..... 313 4. Overall Additional Cost......................... 314 B. Indirect Costs........................................316 C. Other Externalized Costs................................ 317 VI. An Exploration of Why the Majority Accepts the Costs the Minority Imposes........................................ 320 A. The Opaque Nature of the Costs.... ........................ 320 B. Why Deterrence Is Not the Explanation (and Why our Parochial and Libertarian Death Penalty Does Not Deter).................322 C. The Death Penalty as a Back-Pocket Option........ ........... 324 D. The Majority's Fear of the Minority's Reaction to Abolition............ 325 E. The Resonance of the Minority's Parochial and Libertarian Values............................................ 327 F. Hay's America?................................... ..... 328 VII. The New Millennium: Decline and Fall?. ....... .. .. .. .. 329 A. The Last Decade's Death-Sentencing Decline... ............. 330 B. An Uneven Decline...............................331 C. A Smaller Tail Wagging a Larger Dog.....................337 VIII. Policy Options.......................................... 341 A. The Insufficiency of Options Previously Proposed.. ............ 341 B. Regulatory Strategies...................................343 1. Less, Not More, Externalization of Costs........... ....... 344 2. The Problems with Performance-Based Approaches...................345 3. Local Improvements in Defense Representation....... ...... 347 4. Managed Prosecution............................349 IX. Conclusion.............................................350 258 OHIO STATE JOURNAL OF CRIAINAL LAW [Vol 9:1 I. A LOCAL INSTITUTION As Tip O'Neill famously quipped about "all politics" in the United States, almost all there is to know about its death penalty is local, not national.' Only local differences can explain, for example, the simultaneous vilification of the United States as the only Western nation to punish personal and civilian crimes with death2 and celebration of the State of Michigan as the vanguard of abolition in the Western world. Until relatively recently, the decision to impose death and carry out executions was a local affair across most of the Western world.4 For example, Douglas Hay's classic article Property, Authority and the Criminal Law vividly depicts eighteenth century England's bloody assizes as a distinctly local spectacle.' He explains that period's prodigious number of death verdicts as a diabolically ingenious tool