The Number Of Death Penalty Sentences Are Way Down, But The Data Are Hard To Find

Oct 10, 2017

Over the last 50 years, more than 8,000 people have been sentenced to die under the death penalty, and 1,500 of them were ultimately executed. But today, the death penalty has fallen out of favor.

On this week's episode of the Criminal Injustice podcast, host and University of Pittsburgh law professor David Harris talks to Brandon Garrett, University of Virginia law professor and author of "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice."

Their conversation has been edited for length and clarity.

DAVID HARRIS: What was not working about the death penalty in its heyday?

BRANDON GARRETT: Death sentences came easy, they came fast. Death sentences occurred in trials that were only a day or two long where we never really even heard what the mental health evidence was, what the defendant was like. And as a result, we had a lot of wrongful convictions that came to light. Over 100 people have been exonerated from death row, and we had you know about two-thirds of those death sentences reversed on appeal or habeas [corpus] because the wrong people were getting sentenced to death. We were over producing death sentences. Now fewer people are being sentenced to death, but we still see the same problems. It seems like we're just not ready to do these serious murder cases right, which is why people are wondering whether we should be imposing final sentences like death sentences when there's no chance to obviously correct a problem once one gets executed.

HARRIS: When you noticed the death penalties decline, you naturally went and looked for the data but you didn't find it so you began to collect it yourself. What did you do?

GARRETT: We wanted to find out who was sentenced to death in this country and in what counties and what states and what years. There wasn't good information when death sentences rose to their height in the 1990s and then they steadily declined in the 2000s to the present. There are rosters of who’s on death row at any time that the prisons keep, and so we come through those prison records. We did searches to see what appeals people filed in different states. We reached out to lawyers that work on death penalty cases, and by combing through all those records we put together what we think is a definitive list of everyone sentenced to death from 1991 through the present.

HARRIS: Where are we in 2016? How many death verdicts, how many executions in the last year?

GARRETT: Death sentences and executions have cratered. In the 1990s, there were well over 300 death sentences a year in some years. Last year, there were 31. So it's just enormous–it's like a 90 percent drop in death sentence. Executions have dropped even faster.

HARRIS: Why has the shift in death penalty sentences happened? Is it too many wrongful convictions that DNA shows later? Is it life without parole? Is it the decline in crime, especially murders?

GARRETT: Well what I found in analyzing DNA exonerations, adoption of life without parole as an alternative to the death penalty, other changes coming from the U.S. Supreme Court, I found that none of those things were correlated with the decline in death sentences. The decline in murders was, but I also found that changes in the way that states provide resources to defense lawyers so that they actually set up offices so the defense can put on a fair case, that had an enormous impact. And so you see the decline of murders start to impact death sentencing, and by the late 90s, death sentencing starts to steadily decline. But then it really declines in the states where there's some kind of an office that knows what it's doing handling death penalty trials. You also see a steady effect of cost. Death penalty trials are really expensive. In the rural counties, they can't afford it. They almost entirely stop death sentencing, and then you see this kind of muscle memory effect. Prosecutors have gotten used to doing death sentencing and doing it easily and cheaply. Well once that starts to unravel, you see prosecutors just stop doing death sentencing entirely. And that muscle memory, that momentum, that inertia disappears.

You can hear David Harris’ full conversation with professor and author Brandon Garrett on this week’s episode of WESA’s Criminal Injustice podcast. Subscribe on iTunes or through your favorite podcast app.