Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak

44 Pages Posted: 4 Mar 2018

See all articles by David McCord

David McCord

Drake University Law School

Talia Roitberg Harmon

Niagara University

Date Written: 2017-2018


The authors gathered information on 1665 death-eligible cases nationwide for three years at decade intervals: 1994, 2004, and 2014. In 517 cases death sentences were imposed; in 311 cases sentencers spared the defendants from death sentences, and in 837 cases prosecutors spared defendants from death sentences. The Article proceeds in three Parts. Part I explains the methodology for unearthing relevant data and preparing it for analysis. Part II analyzes declines in death sentences due to decreasing death eligibility, that is, fewer murderers over time meeting the criteria that made death a sentencing option. Four reasons are examined: fewer death-eligible murders, the United States Supreme Court’s exemptions of juveniles who were less than eighteen years of age at the time of the commission of the murder, and persons with intellectual disability (known to the law as the “mentally retarded”); and the abolition of the death penalty in several states. This Part concludes that about half of the decline in death sentences is attributable to decreased death-eligibility, mostly due to the steep decrease in the number of death-eligible murders. Part III examines increasingly narrower perceptions of death-worthiness, that is, the evolution in attitudes among prosecutors and sentencers toward deeming fewer among the many death-eligible defendants worthy of death sentences. This Part requires the most complicated analysis because unlike death-eligibility decisions, which are dictated by law, death-worthiness decisions emerge from an opaque brew of many factors, including, but not limited to, resource differentials among jurisdictions, prosecutorial attitudes, the wishes of the murder victim’s survivors, defense counsel performance, public opinion, and sentencer reactions. But while death-worthiness decisions are often opaque in individual cases, each case generates empirical data from which patterns may be discerned. Part III uses such data to analyze ten questions and arrive at tentative answers:

• Did the advent of life-without-parole (hereinafter “LWOP”) reduce death sentences in jurisdictions where it was added as an option? (only in Texas) • Did sentencers become more reluctant to return death sentences? (no) • Were death sentences decreasingly imposed in less aggravated cases and increasingly imposed in more aggravated cases? (to some extent) • Did presentation of greater numbers of mitigating factors conduce to fewer death sentences? (no) • Did robbery during a murder became a less powerful aggravator? (yes) • Did 18-to-20 year-olds benefit from a ripple effect from the exemption of juveniles? (yes) • Did death sentences become less common in multiple perpetrator cases? (yes) • Did low population counties increasingly drop out of death sentencing? (yes) • Did low revenue counties increasingly drop out of death sentencing? (no) and • Did a few traditionally high-volume death sentencing counties skew the figures by cutting back on the use of the death penalty due to local political factors? (yes)

Suggested Citation

McCord, David and Roitberg Harmon, Talia, Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak (2017-2018). Albany Law Review, Vol. 81.1, 2017-2018, Available at SSRN: https://ssrn.com/abstract=3128311

David McCord (Contact Author)

Drake University Law School ( email )

27th & Carpenter Sts.
Des Moines, IA 50311
United States
515-271-2069 (Phone)
515-271-2530 (Fax)

Talia Roitberg Harmon

Niagara University ( email )

Niagara University, NY 14109
United States

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