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90 Cornell L. Rev. 347 (2004-2005)
Death Sentence Rates and County Demographics: An Empirical Study

handle is hein.journals/clqv90 and id is 361 raw text is: DEATH SENTENCE RATES AND COUNTY
Theodore Eisenbergt
The number of murders in a state largely determines the size of a
state's death row.' The more murders, the larger the death row. This
fundamental relation yields surprising results, including the news-
worthy finding that Texas's death sentencing rate is not unusually
high.2 Recent state-level research also underscores the importance of
race in the demography of death row.3 Death penalty research has
long emphasized race's role, and with good reason-a racial hierarchy
exists in death sentence rates.4 Black defendants who murder white
victims receive death sentences at the highest rate; white defendants
who murder white victims receive death sentences at the next highest
rate, and black defendants who murder black victims receive death
sentences at the lowest rate.'5 Two race-based tendencies appear to
foster this hierarchy: prosecutors' reluctance to seek or impose death
in cases involving black defendants and black victims, and their eager-
ness to do so in cases involving black defendants and white victims.6
County-level analysis should help further illuminate death row's de-
mography.7 Prosecutors who decide whether to seek the death pen-
t Henry Allen Mark Professor of Law, Cornell Law School; Bruce W. Nichols Visiting
Professor of Law, Harvard Law School.
I  SeeJohn Blume, Theodore Eisenberg & Martin T. Wells, Explaining Death Row's Pop-
ulation and Racial Composition, I J. EMPIRIcAL LEGAL STUD. 165, 186-87 (2004).
2  See id. at 173 (explaining that Texas's reputation as a death-prone state should rest
on its many murders); Jess Bra-in, Death Penalty Imposed Less Often in US South-Study, Dow
JONES Irr'L NEWS, Feb. 14, 2004, at 20:33:00 (finding that Texas was less likely to impose
capital sentences than many Northern states); Adam Liptak, Study Revises Texas's Standing
as a Death Penalty Leader, N.Y. TIMES, Feb. 14, 2004, at AI0 (noting that Texas sentences a
smaller percentage of people convicted of murder to death than the national average);
Maro Robbins, Texas Not Really Executioners'Mecca; Study Shows State's Rate of Handing Down
Death Sentences is Below National Average, SAN ANTONIO-ExPRESS NEWS, Mar. 13, 2004, at IA,
available at 2004 WL 62674991.
3  See Blume et al., supra note 1, at 166 (citing David Baldus, George Woodworth,
David Zuckerman, Neil Alan Weiner, Barbara Broffitt, Racial Discrimination and the Death
Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from
Philadelphia, 83 CORNELL L. REV. 1638, 1658 & n.61, 1659, 1660-61 & n.69, 1662, 1742-45
4  See id. at 167.
5  See id.
6  See id. at 167 & nn.8-9.
7  But see Andrew Gelman, James S. Liebman, Valerie West, Alexander Kiss, A Broken
System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. EMPIRICAL
LEGAL STUD. 209, 252-54 (2004) (reporting insignificant variation in death sentences per

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