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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.


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