Brandon L. Garrett


On his book End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice

Cover Interview of October 08, 2017

The wide angle

In my first job as a lawyer, I represented several people who had spent years behind bars but were exonerated by DNA tests, including people who had falsely confessed, like the Central Park Five. As a law professor, I began to study the cases of DNA exonerees and I read the criminal trials of people who were sentenced to death despite their innocence. In this book, I describe the cases of those death row DNA exonerees.

But I discovered that the innocence revolution does not do a good job of explaining the decline in death sentencing in this country. In fact, the states that sentence the most people to death have the most exonerations from death row. Innocence is an inevitable byproduct of death sentences, which is incredibly disturbing, but it does not explain why starting in 1999, death sentences began to decline.

I have spent the past several years collecting by hand the names and counties of people sentenced to death in the United States. There was no list and no authoritative source for that information. Like with so much in criminal justice, we did not have good data. After collecting information about these thousands of cases, I along with colleagues, analyzed the data.

One explanation for the death penalty decline is the decline in murders. Murders steadily declined beginning in the mid-1990s. Fewer murders meant fewer death sentences. However, murders also declined in states and counties that do not death sentence at all. And out of the ten thousand plus murders each year, a tiny proportion result in death sentences, the bulk of which never result in an execution.

We also found a troubling racially biased explanation for the death penalty decline. Not all lives matter the same. Counties with more white victims of murder had more death sentences. Counties with larger black populations in general had many more death sentences.

We also found a “muscle memory” effect. Counties that get death sentences keep on getting more of them on average. Prosecutors may put together a crack team of capital prosecutors, chalk up some victories, and then they aggressively pursue the death penalty even while neighboring counties do not.

But something broke that cycle. One change has made an impact: the quality of defense lawyering. States that have statewide offices to represent people at capital trials experienced far greater declines in death sentencing.

Cost is clearly also a factor. States have spent hundreds of millions of dollars, even billions, on death sentencing, even though very few people sentenced to death are ever executed. The cost of these trials, particularly once prosecutors started failing to get death sentences, clearly has had an impact. When you look at the death sentencing maps that I created, you see that rural counties disappear entirely by the end of the 1990s. They stop death sentencing.