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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 prodeath 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.