The Death Penalty: Should the Judge or the Jury Decide Who Dies?

• Date: 01 March 2015
• DOI: http://doi.org/10.1111/jels.12065
• Published date: 01 March 2015

The Death Penalty: Should the Judge or

the Jury Decide Who Dies?

Valerie P. Hans, John H. Blume, Theodore Eisenberg, Amelia Courtney Hritz,

Sheri Lynn Johnson, Caisa Elizabeth Royer, and Martin T. Wells*

This article addresses the effect of judge versus jury decision making through analysis of a

database of all capital sentencing phase hearing trials in the State of Delaware from 1977–

2007. Over the three decades of the study, Delaware shifted responsibility for death penalty

sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that

gives the judge the final decision-making authority in capital trials. Controlling for a number

of legally relevant and other predictor variables, we find that the shift to judge sentencing

significantly increased the number of death sentences. Statutory aggravating factors,

stranger homicides, and the victim’s gender also increased the likelihood of a death sen-

tence, as did the county of the homicide. We reflect on the implications of these results for

debates about the constitutionality of judge sentencing in capital cases.

I. Introduction

This article examines the impact of having the judge or the jury as the decisionmaker in

capital trials. In Woodward v. Alabama, a dissent from a denial of certiorari, Supreme Court

Justice Sotomayor, joined by Justice Breyer, questioned the constitutionality and the impact

of employing judges as opposed to juries as the final arbiter of death sentences in the

United States.1This article addresses the effect of judge versus jury decision making

through analysis of a unique database of all capital sentencing phase hearing trials in the

State of Delaware in the modern period of capital punishment, from 1977–2007. Delaware

*Address correspondence to Valerie P. Hans, Professor of Law, Cornell Law School, Ithaca, NY 14853; email:

valerie.hans@cornell.edu. Hans is also Professor Emerita, University of Delaware; Blume is Professor of Law; Director

of Clinical, Advocacy and Skills Program, and Director, Death Penalty Project, Cornell Law School; until his death in

2014, Theodore Eisenberg was Henry Allen Mark Professor of Law and Adjunct Professor of Statistical Sciences,

Cornell University; Hritz is a graduate student in the dual J.D./Ph.D. Developmental Psychology and Law Program,

Cornell University; Johnson is James and Mark Flanagan Professor of Law, Associate Dean for Public Engagement,

and Assistant Director, Death Penalty Project, Cornell Law School; Royer is a graduate student in the dual J.D./Ph.D.

Developmental Psychology and Law Program, Cornell University; Wells is Charles A. Alexander Professor of Statistical

Sciences, Cornell University.

Financial support for this research project was provided by the Cornell Death Penalty Project <http://

www.lawschool.cornell.edu/research/death-penalty-project/About.cfm>and by Cornell Law School’s faculty

research funds to Valerie Hans.

1Woodward v. Alabama, 571 U.S. 405 (2013) (Sotomayor, J., dissenting from the denial of certiorari).

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Journal of Empirical Legal Studies

Volume 12, Issue 1, 70–99, March 2015

70

is one of a handful of states that currently gives the judge rather than the jury the final

judgment in a capital case. Over the three decades of the study, Delaware shifted respon-

sibility for death penalty sentencing from the jury to the judge. These different sentencing

approaches provide a rare opportunity to contrast the operation of jury and judge decision

making within a single state.

Other studies of judge versus jury death penalty sentencing have compared

decisionmakers across jurisdictions, or have examined judicial overrides of jury decisions

within a state.2Delaware’s experience offers the chance to examine how a state’s capital

punishment system changes when judges or juries are the ultimate decisionmakers. This has

significance not only for the State of Delaware, but also for other states that have modified

their approaches or that are considering changing their sentencing schemes in capital cases.

Moreover, it also bears on the question raised in Sotomayor’s dissent from denial of

certiorari: Does capital sentencing by judges violate the Sixth and Eighth Amendments?3

Although there is substantial research about the nationwide operation of capital

punishment,4empirical research on Delaware’s death penalty is modest in amount.5The

2John Blume, Theodore Eisenberg & Martin T. Wells, Explaining Death Row’s Population and Racial Composition,

1 J. Empirical Legal Stud. 165 (2004) (comparing outcomes in states with judge vs. jury sentencing schemes); William

J. Bowers, Wanda D. Foglia, Jean E. Giles & Michael E. Antonio, The Decision Maker Matters: An Empirical

Examination of the Way the Role of the Judge and the Jury Influence Death Penalty Decision-Making, 63 Wash. & Lee

L. Rev. 931 (2006) (comparing the responses of capital jurors in jury sentencing vs. hybrid states); Michael Radelet,

Overriding Jury Sentencing Recommendations in Florida Capital Cases: An Update and Possible Half-Requiem, 2011

Mich. St. L. Rev. 793, 828 (2011) (describing judicial override patterns in Florida over time); Christopher Slobogin,

The Death Penalty in Florida, 1 Elon L. Rev. 17, 47–50 (2009) (detailing problems with the majority decision rule, jury

instructions, and judicial overrides of jury recommendations in Florida).

3Woodward v. Alabama, 571 U.S. 405 (2013) (reporting Alabama jury override data and questioning whether

Alabama’s practice of capital sentencing by judges violates the Sixth Amendment right to a jury trial, or is so arbitrary

as to violate the cruel and unusual punishment clause of the Eighth Amendment).

4The empirical literature is substantial. See, e.g., David C. Baldus, George Woodworth & Charles A. Pulaski, Jr., Equal

Justice and the Death Penalty: A Legal and Empirical Analysis (1990) (summarizing comprehensive empirical study

of Georgia’s capital sentencing); Raymond Paternoster, Robert Brame & Sarah Bacon, The Death Penalty: America’s

Experience with Capital Punishment (2007) (summary of empirical research findings); John J. Donohue III, An

Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and

Geographic Disparities? 11 J. Empirical Legal Stud. 637 (2014) (summarizing comprehensive study of Connecticut’s

capital sentencing).

5Empirical research includes two previous analyses of the Delaware death penalty: Sheri Lynn Johnson, John H.

Blume, Theodore Eisenberg, Valerie P. Hans & Martin T. Wells, The Delaware Death Penalty: An Empirical Study, 97

Iowa L. Rev. 1925 (2012) (analyzing death-sentencing rates), and Caisa E. Royer, Amelia C. Hritz, Valerie P. Hans,

Theodore Eisenberg, Martin T. Wells, John H. Blume & Sheri Lynn Johnson, Victim Gender and the Death Penalty,

82 UMKC L. Rev. 429 (2014) (finding support for a female victim effect in Delaware capital cases). Other empirical

projects include: Ross Kleinstuber, Hegemonic Individualism and Subversive Stories in Capital Mitigation (2014)

(reporting and analyzing the results of interviews with Delaware capital jurors); Benjamin D. Fleury-Steiner, Kerry

Dunn & Ruth Fleury-Steiner, Governing Through Crime as Commonsense Racism, 11 Punishment & Soc’y 5 (2009)

(case study describing events surrounding the shift from jury to judge decision making); Glenn W. Samuelson, Why

Was Capital Punishment Restored in Delaware? 60 J. Crim. L. & Criminology 148 (1969) (analyzing homicides before

and after abolition and subsequent reinstatement of the death penalty in Delaware). See also Adam Gershowitz,

Delaware’s Capital Jury Selection: Inadequate Voir Dire and the Problem of Automatic Death Penalty Jurors, 2 Del.

L. Rev. 235 (1999) (reviewing capital litigation in Delaware).

The Death Penalty: Who Should Decide Who Dies? 71