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9 Ohio St. J. Crim. L. 255 (2011-2012)
Minority Practice, Majority's Burden: The Death Penalty Today

handle is hein.journals/osjcl9 and id is 257 raw text is: 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, capital punishment 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 of parochialism 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 parochial communities), provides parochial and libertarian communities 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 surprising if 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 capitally prone 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

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