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Death penalty, Capital punishment, Delaware


Criminal Law


For the last five years, we have conducted an empirical study of the “modern era” of capital punishment in Delaware. By “modern era,” we refer to the time period after the Supreme Court’s 1972 decision in Furman v.Georgia, which invalidated all then-existing state death penalty regimes. Some readers might ask, “Why Delaware?” They might observe that it is a small state and is not a significant national player in terms of death sentences imposed or death row inmates executed. While both are true, several features of Delaware’s capital punishment system intrigue us. First, Delaware has a high death sentencing rate. Prior studies revealed that in relation to the number of murders, Delaware has the third-highest death sentencing rate in the United States. Studying the Delaware experience allows us to explore the factors that may account for the relatively high rate of capital punishment in the state. Second, it is not a Southern state. Most (though not all) previous empirical studies have focused on Southern jurisdictions. Third, Delaware has used jury sentencing as well as different judge-sentencing schemes in capital cases. Studies of judge versus jury death penalty sentencing have typically compared decision-makers across jurisdictions, or have examined judicial overrides of jury decisions within a state. Comparison of Delaware’s capital trial experiences under these diverse sentencing approaches offers a rare opportunity to contrast the operation of jury and judge capital sentencing within a single state. Finally, no previous systematic empirical studies of the death penalty in Delaware have been conducted. Thus, for both theoretical and practical reasons, we determined that it would be a worthwhile capital punishment jurisdiction to examine.

In this Article we present our findings to date. After reviewing the modern history of the Delaware death penalty and describing our methodology, we will describe our findings regarding geographical patterns, racial disparities, judge–jury sentencing differences, and reversal rates. We leave to others to discuss what, if any, legal or policy implications might arise from our findings.


Included in a special issue of Iowa Law Review honoring the late David C. Baldus.

Publication Citation

Published in: Iowa Law Review, vol. 97 (special issue), (October 2012).

Included in

Criminal Law Commons