A recent Delaware Supreme Court finding that the state's death penalty law is unconstitutional could very well provide a triumphant coda to a decade of Cornell Law School research regarding the administration of capital punishment in Delaware.
The court’s decision, issued on August 2 in the case Benjamin Rauf v. State of Delaware, found that Delaware’s system—in which judges rather than juries ultimately decide whether to impose the death penalty—violated Sixth Amendment principles established by the U.S. Supreme Court in January, when it struck down Florida’s similar judge-dominated system in Hurst v. Florida. The Rauf decision cited two articles produced by a team of Cornell Law scholars showing that Delaware’s adoption of a system in which trial judges had the final say on whether a defendant should be sentenced to death did in fact produce more death sentences.
The studies cited in the Rauf decision—The Delaware Death Penalty: An Empirical Study (2012) and The Death Penalty: Should the Judge or the Jury Decide Who Dies? (2015)—lay out a detailed history of the three phases of Delaware’s modern era of capital punishment: first, requiring a unanimous jury decision; then, following the passage of new legislation by the General Assembly in 1991, switching to a system giving judges discretion over whether to follow juries’ recommendation; and finally, since 2002, a hybrid system where judges still had ultimate control but juries’ recommendations were given more weight.
Empirical analysis of data on death sentences given out in Delaware between 1977 and 2007 showed the result of the switch between jury- and judge-dominated systems following the passage of the 1991 law. “We found that it had a dramatic effect,” says Valerie Hans, professor of law and the lead author of the 2015 article. “Judges in Delaware under this new system were much more likely to decide on a death sentence than juries were.” Hans adds that because the data was taken directly from case files, the authors could control for aggravating and mitigating factors, putting the focus squarely on who was making the decision to impose the death sentence.
Cornell’s study of the Delaware death penalty began when Valerie Hans, professor of law, came to the Law School in 2005. Over the previous twenty-five years, Hans, an expert on jury decision-making, had been working in Delaware and observing how the imposition of the death penalty had differed before and after the 1991 switch. Once she arrived at Cornell, Hans was approached by Sheri Lynn Johnson, the James and Mark Flanagan Professor of Law, and John Blume, now the Samuel F. Leibowitz Professor of Trial Techniques and the director of Clinical, Advocacy and Skills Programs and of the Cornell Death Penalty Project, whose interest in Delaware’s capital punishment system had already been piqued by a number of factors.
“One thing is that Delaware has a very high death-sentencing rate,” says Johnson, who was the lead author of the paper published in 2012. “Delaware is also not a southern state, and virtually all of the studies of capital punishment have been in southern states. And there had not been a complete study of the Delaware system in the past.” At the same time, a capital defense lawyer from Delaware had approached them looking to commission an analysis of the state’s capital punishment practices in order to assist anti–death-penalty activists.
Besides Blume, Johnson, and Hans, contributors to the studies on the Delaware death penalty included the late Theodore Eisenberg, the Henry Allen Mark Professor of Law at Cornell Law School, and Martin T. Wells, Cornell University’s Charles A. Alexander Professor of Statistical Sciences. Two graduate students in Cornell’s dual J.D./Ph.D. Developmental Psychology and Law Program, Amelia Courtney Hritz ’17 and Caisa Elizabeth Royer ’17, contributed to the 2015 article. Royer was also the lead author of another article by the Cornell team, Victim Gender and the Death Penalty (2014), which used the Delaware data to show that people convicted of murdering women were significantly more likely to receive the death penalty than were those convicted in homicide cases involving male victims.
The Rauf decision was based on a close reading of Hurst, rather than explicit concerns about the effect of judge-dominated capital punishment systems. However, Blume notes that research like that done at Cornell has fed into a wider political debate in Delaware about what the death penalty should look like.
“There's been this ongoing dialogue between the legislative assembly and the judicial system and other political actors about how the Delaware death penalty is implemented,” Blume says. Both Blume and Hans have traveled down to Delaware numerous times to give presentations to judges and defense lawyers on the results of their research, and, in Blume's case, to testify before the General Assembly.
And, according to Hritz, the Cornell researchers kept in mind the possible implications of their work, and the discussions that were going on elsewhere. For instance, they noticed when Justice Sonia Sotomayor, writing a dissent in the denial of a Petition for Certiorari in Woodward v. Alabama in 2013, discussed how judicial overrides of jury recommendations on death sentences were common in Alabama, and more common in election years. “We were aware that there was some interest in the court, and that they were looking at these types of findings,” says Hritz, the editor in chief of the Cornell Law Review. “We were already in the process of writing the paper, and in fact we had discussed the importance of the judicial override because at the time Alabama, Florida, and Delaware were the only states in which this could happen. It certainly became something that we made sure to include after seeing that case.”
“I think there was more widespread concern than was expressed in the opinion about systemic defects in the Delaware death penalty,” says Blume. “This decision in some ways is just a culmination of a larger political dialogue that's been going on for ten years.”