Law, College of


Date of this Version



64 Vand. L. Rev. En Banc 1 (2011)


Copyright (c) 2011 Eric Berger.


In Statewide Capital Punishment: The Case for Eliminating Counties’ Role in the Death Penalty, Professor Adam Gershowitz argues that it is misleading ―to suggest that "the State of Texas is a prolific user of capital punishment." As Gershowitz explains, it is not the State of Texas that prosecutes death penalty cases, but rather counties within the State. In fact, only a few of Texas‘s 254 counties seek capital punishment with any regularity. In this regard, Texas is not anomalous. Other states, such as Pennsylvania and California, also have wide variations among counties‘ imposition of the death penalty, even among demographically similar counties. Indeed, a recent study indicates that only ten percent of counties in the United States accounted for all death sentences imposed between 2004 and 2009, and that only five percent of counties accounted for all the death sentences between 2007 and 2009. From this perspective, the nationwide disparity in death penalty practices is driven less by state policy and more by county prosecutorial practices.

These disparities, Professor Gershowitz argues, create serious problems of various sorts. Counties aggressively pursuing the death penalty sometimes win controversial death sentences at trial. Gershowitz argues that such sentences are either reversed after rounds of expensive appeals or result in executions "that raise serious questions about the culpability of the inmate." On the other side of the spectrum, some small, poor counties must choose between foregoing the death penalty for even the most heinous crimes and pursuing a death sentence that may be especially vulnerable to reversal on appeal, given the inexperience of the trial participants.

Professor Gershowitz offers a solution to these problems. He argues that rather than handling death penalty cases at the county level, all aspects of capital punishment cases "should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases." Such a professionalized, statewide system, he contends, would help reduce costs, eliminate geographic arbitrariness, and restore confidence in both the overall system and individual verdicts. For instance, by cutting counties out of the equation and placing the decision to seek death at the state level, the plan would presumably reduce the number of governmental units empowered to seek capital punishment from well over a thousand to roughly thirty-five, thus somewhat mitigating the geographic arbitrariness. Gershowitz also argues that his proposal would help reduce the system‘s errors, because elite prosecutors, defense attorneys, and judges would be less likely to make mistakes at trial. The reduction of such error would be intrinsically beneficial, and, as Gershowitz emphasizes, it may also help states avoid expensive appeals.

Gershowitz‘s article accomplishes much of what legal scholarship should accomplish. It challenges the common wisdom (that state policies drive the disparate utilization of capital punishment), identifies serious problems (the arbitrariness, errors, and costs of our current capital punishment system), and proposes a thought-provoking, ambitious solution (the creation of statewide teams of capital prosecutors, defense attorneys, and judges) that may mitigate some of those problems. For all its merits, though, Gershowitz‘s piece may underestimate the economic and political obstacles to his plan and overestimate his proposal‘s capacity to effect substantial improvements. The balance of this Response addresses these issues and the related question of whether Gershowitz‘s proposed reforms would be preferable to abolition.