The Delaware Death Penalty: An Empirical Study

Author:Sheri Lynn Johnson - John H. Blume - Theodore Eisenberg - Valerie P. Hans - Martin T. Wells
Position:Professor of Law and Assistant Director, Death Penalty Project, Cornell Law School - Professor of Law; Director of Clinical, Advocacy and Skills Programs; and Director, Death Penalty Project, Cornell Law School - Professor of Law and Adjunct Professor of Statistical Sciences, Cornell University - Professor of Law, Cornell Law School - Charles A...
Pages:1925-1964
 
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1925
The Delaware Death Penalty:
An Empirical Study
Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg,

Valerie P. Hans

& Martin T. Wells

We are grateful for the invitation to participate in a symposium that
honors a great scholar and great man, a quiet man with a strong passion
for justice, Professor David C. Baldus. David was deeply admired in the
academic community in which all of us participate, but in the death penalty
litigation community to which two of us, John and Sheri, belong, he was
almost worshipped. Unlike many experts, whom capital defense lawyers
sometimes try to cajole, bully, or buy, David was valued for his steadfast
pursuit of the facts. We knew from the start that he was going to track down
the truth, and then tell it.
In fact, the reverence for his work, as well as his integrity, may be why in
the death penalty litigation community he was known as “David” rather
than “Dave”; the nickname would have seemed insufficiently respectful.
That reverence did not, however, make David self-important. When Sheri
first met David at Airlie (where he was presenting his findings to a group of
death penalty litigators), he just introduced himself by his first name, talked
about what he was working on, asked her ideas, and inquired about her
own work. Later, someone whispered to her, “Did you know that was David
Baldus?” and she was embarrassed to have been so unmindful of his stature
Financial support for this research proje ct 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. This paper benefited from helpful
audience feedback at Northwestern University Law School’s Rosent hal Lectures (Eisenberg and
Johnson); a presentation to Delaware lawyers (Johnson), a presentation to Delaware’s Superior
Court judges (Hans), the Conference on Empirical Lega l Studies (Blume), the American Bar
Foundation (Hans), and the Law & Society Association conference (Hans).
James and Mark Flanagan Professor of Law and Assistant Director, Death Penalty
Project, Cornell Law School.
 Professor of Law; Director of Clinical, Advocacy and Skills Programs; and Director,
Death Penalty Project, Cornell Law School.
 Henry Allen Mark Professor of Law and Adjunct Professor of Statistical Sciences,
Cornell University.
 Prof essor of Law, Cornell Law School.
 Charles A. Alexander P rofessor of Statistical Sciences, Cornell University.
1926 IOWA LAW REVIEW [Vol. 97:1925
while spouting her half-baked theories. As it turns out, that was a common
experience; three other people told her similar stories. If Davi d knew how
monumental his contribution was, he never let on. He just kept on.
But it was monumental. As Ted and Valerie, who are co-editors of the
Journal of Empirical Legal Studies, observed, no empirical study has
had as great an impact on the law in this country as David Baldus’s project
analyzing Georgia’s death penalty sentencing regime. Its extraordinary
influence is particularly remarkable given that it did not produce a legal
victory.1 Even though the Georgia study featured unparalleled
sophistication and detail, the Court disparaged the significance of those
findings in McCleskey v. Kemp.2
Not content with one monumental contribution, David kept on. He
refined his methodology and continued to work on analyzing the operation
of the death penalty in other jurisdictions. David’s painstaking work on the
Pennsylvania death penalty, where he added blind independent ratings of
aggravation and mitigation—and found even larger race effects—set a
standard that has not yet been matched, or even approached. The same can
be said for his work on the death penalty in other states, as well as on the
death penalty in the military. What follows does not meet the standard
David set. Were he here, he would no doubt urge us to wait until the last
part of our study is complete and our analysis more refined to publish
anything. But we publish this now in acknowledgement of the vast
influence he had on this study,3 and over much of our past work. We are
grateful for his lead and are grateful to have known him.
INTRODUCTION .................................................................................... 1928
I. A BRIEF HISTORY OF THE DELAWARE DEATH PENALTY........................ 1929
II. METHODOLOGY ................................................................................... 1932
A. THE BUREAU OF JUSTICE STATISTICS DATABASE ............................... 1932
B. THE FBI SUPPLEMENTAL HOMICIDE REPORTS ................................. 1933
C. THE DELAWARE CAPITAL TRIALS DATABASE ................................... 1935
1. McCleskey v. Kemp, 481 U.S. 279 (1987). There is some reason, however, to hope
that it will eventually do so. Justice Powell, the author of and fifth vote in McCl eskey, later
expressed his regret. JOHN C. JEFFRIES, JR., JUSTICE LEWI S F. POWELL, JR. (1994). The only other
case in which Powell regretted his vote, Bowers v. Hardwick, 478 U.S. 186 (1986), has since been
reversed by Lawrence v. Texas, 539 U.S. 558 (2003). Should the day come when McCleskey too is
relegated to the dustbin of history, much of credit will be due to David’s pioneering work.
2. McCleskey, 481 U.S. 279.
3. David’s influence on this study was not merely inspirational. He generously gave us
coding instruments he used when studying other states. We adapted his coding instrument for
use in Delaware.
2012] THE DELAWARE DEATH PENALTY 1927
III. GEOGRAPHY ......................................................................................... 1936
IV. RACE .................................................................................................... 1938
A. DEATH SENTENCES IMPOSED BY RACE .............................................. 1938
B. THE RACIAL COMPOSITION OF DELAWARES DEATH ROW ................. 1938
C. RACE AND EXECUTIONS ................................................................... 1939
D. RACE AND DEATH-SENTENCING RATES ............................................ 1939
V. DEATH SENTENCING RATES AND JUDGE–JURY DIFFERENCES ............... 1941
A. NATIONAL DEATH SENTENCE RATES ............................................... 1942
B. DELAWARE-SPECIFIC STATUTORY CHANGES AND THEIR INFLUENCE
ON DEATH SENTENCE RATES ........................................................... 1945
C. REGRESSION MODELS OF DELAWARE SENTENCING RATES ................. 1947
VI. APPEALS AND ERROR RATES ................................................................. 1952
CONCLUSION ....................................................................................... 1954
APPENDIX A ......................................................................................... 1955
APPENDIX B .......................................................................................... 1958
APPENDIX C ......................................................................................... 1959
APPENDIX D ......................................................................................... 1960
APPENDIX E .......................................................................................... 1961
APPENDIX F .......................................................................................... 1964

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