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Stanford Lawyer
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The Death Penalty 
in the Hot Seat

Photo by Norbert von der Groeben

Photo of John J. Donohue III at William Neukom Building at the Stanford Law SchoolJohn J. Donohue III, C. Wendell and Edith M. Carlsmith Professor of Law, has brought his economic expertise and empirical techniques to bear on a number of cutting-edge social issues. In stark contrast to many legal academics, whose work deals largely with the historical or theoretical, Donohue is renowned for his use of large-scale statistical studies that estimate the impact of law and public policy on a variety of areas, including everything from employment discrimination to school funding to crime control. Among his highly acclaimed articles are “Shooting Down the ‘More Guns, Less Crime’ Hypothesis” (with Ian Ayres) and “The Impact of Legalized Abortion on Crime” 
(with Freakonomics co-author Steven D. Levitt).

But recently, Donohue’s scholarship has plunged him into a contemporary drama with life or death consequences. As the use of capital punishment has come under increasing scrutiny, with DNA evidence freeing some death-row inmates and the multimillion-dollar cost of death penalty appeals making headlines, movements have begun to roll back the statutes that were passed with frequency during the 1970s. Litigation has become a large part of that effort and that’s where Donohue has stepped in.

In 2006, Donohue, then a Yale law professor, was approached by the plaintiffs in a class action brought by nine death-row inmates seeking to overturn Connecticut’s death penalty under the state constitution in a state habeas proceeding. Known for earlier research that concluded the death penalty does not have a deterrent effect, Donohue was asked to become an expert witness in the case.

Donohue undertook an exhaustive empirical examination of the 205 death-eligible cases that had been filed in Connecticut from 1973, when the state’s death penalty law went into effect, through 2007. A recent New York Times editorial described his findings, saying, “In Connecticut, a powerful, comprehensive study provided evidence that state death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.”

“In 1972, the U.S. Supreme Court overturned Georgia’s death penalty based on its random implementation, and that’s the yardstick we were using to measure Connecticut’s law,” Donohue explains.

There was no question—even the opposition agreed—that an enormous geographical disparity existed in the statute’s application. “Connecticut prosecutors are allowed to decide whether to seek death in any particular death-eligible case,” says Donohue. And one prosecutor was far more aggressive in pushing for capital punishment: “A death-eligible defendant was at least seven times more likely to receive a death sentence in his jurisdiction than in the rest of the state.”

It also quickly became apparent that the system treated minority-on-white crimes much more harshly. “But the typical argument in response to such a finding,” says Donohue, “is that the disparate treatment is justified because those particular crimes were in fact more egregious.”

To analyze the validity of that assertion, Donohue designed a study in which he asked law students from Yale and the University of Connecticut to evaluate the egregiousness of each of the 205 death-eligible cases, considering four factors: victim suffering (e.g., duration of pain); victim characteristics (e.g., age, vulnerability); defendant’s culpability (motive, intoxication, or premeditation); and the number of victims. The students rated each crime without knowing either the victim’s or the defendant’s race or the outcome of the prosecution. Their conclusion was clear: The minority-on-white crimes were no more egregious than the rest of the death-eligible crimes. “And the combination of the harsher treatment of minority-on-white murders when, if anything, they tended to be less egregious murders than other death-eligible cases,” says Donohue, “established that the law was being applied in a racially discriminatory fashion.”

In 2010, Donohue presented an early version of his findings to the Connecticut Legislature, which then voted to abolish the death penalty. But the governor, who was under political pressure to uphold the law following a particularly gruesome and highly publicized multiple murder, exercised her veto.

In April 2012, the legislature revisited the question and voted to abolish the death penalty prospectively, avoiding the political hot potato of reversing the two death sentences in the horrific murders. The newly elected governor has signed the bill into law. (Read The New York Times article that discusses this decision and cites Donohue’s work.)

Meanwhile, Donohue’s case will go to trial in June to decide the fate of the 11 individuals now on death row. “If the court finds that there is no meaningful way to distinguish the relatively few cases that get the death penalty from the many death-eligible cases that do not, then it is likely that all of the death sentences will be reversed,” he says. Presumably, the evidence of geographic disparities and racial discrimination will buttress the conclusion that the death penalty in Connecticut is being administered in an arbitrary and capricious fashion.

If the trial court finds the death penalty system was not administered in an unconstitutional manner, then, says Donohue, the Connecticut Supreme Court will have the final word. “This case has been highly contentious and there is no question that the death-row inmates will exhaust their appellate options.” If the state loses at trial though, the state may simply accept that judgment in light of the recent legislative determination that the death penalty is simply bad public policy.

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