REVISION: The Death Penalty: Should the Judge or the Jury Decide Who Dies?

By Sheri Lynn Johnson

This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the state of Delaware from 1977-2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision making authority in capital trials. Controlling for a number of legally-relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, stranger homicides, and the victim’s gender also increased the likelihood of a death sentence, as did the county of the homicide. We reflect on the implications of these results for debates about the constitutionality of judge sentencing in capital cases.

Sheri Lynn Johnson James and Mark Flanagan Professor of Law
Photo of Sheri Johnson

Contact Information

Cornell Law School
245 Hughes Hall
Ithaca, NY 14853-4901

Phone: (607) 255-6478
Fax: (607) 255-3269


Susan Tosto
Cornell Law School
129 Hughes Hall
Ithaca, NY 14853-4901

Professional Biography

Sheri Lynn Johnson is an expert on the interface of race and issues in criminal procedure, and the Assistant Director of the Cornell Death Penalty project, an initiative to foster empirical scholarship on the death penalty, offer students an opportunity to work with practitioners on death penalty cases, and to provide information and assistance for death penalty lawyers.

After her graduation from Yale Law School in 1979, Professor Johnson worked for a year in the Criminal Appeals Bureau of the New York Legal Aid Society, and then joined the Cornell Law School Faculty in 1981. Professor Johnson co-founded the Cornell Death Penalty Project in 1993.

She currently teaches constitutional and criminal law, and supervises the post-conviction litigation and capital trial clinics.


B.A., University of Minnesota, 1975
J.D., Yale Law School, 1979