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In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors (who generate more death sentences than otherwise) and anti-death penalty lawyers (who concentrate their resources on post-trial review proceedings where, given high rates of trial error, they prevail abnormally often). Reforms that focus only on trials or appeals cannot solve the problem. Professor Liebman offers a comprehensive 10-part plan to adjust the skewed incentives and curb the overproduction of death.


Criminal Law | Criminal Procedure | Law