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

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 DELAWARE’S 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