Center for Public Research and Leadership
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.
James S. Liebman,
The Overproduction of Death,
Colum. L. Rev
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/118