Muscle Memory and the Local Concentration of Capital Punishment

73 Pages Posted: 29 Feb 2016 Last revised: 1 Mar 2017

See all articles by Lee Kovarsky

Lee Kovarsky

University of Texas School of Law

Date Written: February 26, 2016


The modern death penalty is not just concentrating in a handful of practicing states; it is disappearing in all but a few capitally active localities. Capital punishment concentration, however, still surfaces more as the subject of a casual observation than as the object of sophisticated academic inquiry. Normative and doctrinal analyses of the phenomenon are virtually nonexistent, in part because the current ability to measure and report concentration is so limited.

This Article is the first attempt to measure capital punishment concentration rigorously, by combining different sources of county-level data and by borrowing quantitative tools that economists use to study market competition. The analysis yields three major findings: (1) capital sentencing is concentrating dramatically; (2) executions are concentrating more gradually; and (3) both trends persist within most capitally active states.

Certain normative and doctrinal conclusions follow from the empirical findings. To the extent that its causes are more bureaucratic and path dependent than they are democratic and pragmatic, concentration violates basic punishment norms requiring equal treatment of similar offenders. This problem notwithstanding, existing death penalty jurisprudence does not account for local concentration. For concentration to have any influence on the outcome of constitutional inquiry, the Supreme Court would have to revise its working definition of “arbitrariness.”

Keywords: capital punishment, death penalty, eighth amendment, bill of rights

Suggested Citation

Kovarsky, Lee, Muscle Memory and the Local Concentration of Capital Punishment (February 26, 2016). 66 Duke Law Journal 259 (2016), U of Maryland Legal Studies Research Paper 2016-14, Available at SSRN:

Lee Kovarsky (Contact Author)

University of Texas School of Law ( email )

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