Author explores the decline of the death penalty

University of Virginia law professor Brandon Garrett’s new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” represents a major new effort to untangle  the demise of the death penalty. He also analyzes the decline for lessons that might be applied to the criminal justice system as a whole. The Marshall Project asked him:

Why has the death penalty declined?

No one expected this to happen. After all, the death penalty has long stood for the ultimate in punishment, and it has been very popular for decades. I felt that understanding the great death penalty decline might help to show us how we can turn away harsh punishment more broadly.

At the county level, my colleagues and I observed a strong statistical connection between murder rates and death sentences. But while declining murder rates matter, it is not the only explanation. Death sentences fell far more steeply than murders did. Unfortunately, while the decline in murders played an important role, when Alex Jakubow, Ankur Desai and I analyzed the past 25 years of death sentencing data, we found a strong county-level pattern of racial bias. Counties with more black residents have more death sentences. And counties with more white victims of murder have more death sentences. Call it a “white lives matter” effect.

We also found a muscle memory effect. Counties impose far more death sentences just as a function of having done so in the past. This inertia is powerful. And yet today, when prosecutors seek the death penalty, they are more often failing to convince jurors to impose it. That reverses the muscle memory in these offices; to lose an expensive death penalty trial is no trivial matter. In 15 death penalty trials since 2015 in Texas, only eight have resulted in death sentences. In Virginia, prosecutors failed to get death sentences more than half of the time in trials since 2005. Rural counties have fallen completely off the death penalty map; just a handful of relatively populous counties still have death sentences.

What I call a “defense lawyering effect” also played an important role in this death penalty decline. The states that created offices for defense lawyers experienced significantly more pronounced declines in their death sentences. The states that continue to leave it to local judges or counties to decide who handles death penalty cases have more death sentences.

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