Justice Breyer cites Garrett’s work on death penalty decline in recent dissent

July 2, 2018Duke Law News

Professor Brandon Garrett

United States Supreme Court Associate Justice Stephen Breyer cited the work of Professor Brandon Garrett in his June 28 dissent to the denial of two death-row inmates’ petitions for certiorari.

Garrett, a highly influential scholar of criminal justice outcomes, evidence, and constitutional rights, joined the faculty July 1 as the inaugural L. Neil Williams, Jr. Professor of Law. Justice Breyer cited Garrett’s recent book, End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice (Harvard University Press, 2017), and one of his forthcoming articles to underscore his argument that death sentences are arbitrarily imposed. One of the petitioners has been on Mississippi’s death row for 42 years.

The cited works emerge from Garrett’s extensive empirical studies that document, in part, a rapid decline in the imposition of the death sentence and its highly concentrated use in only a small number of counties nationwide. He also maintains a website with a data-driven interactive map that illustrates how imposition of the death penalty has declined since 1991 and reflects its current geographic concentration.

“Death sentences, while declining in number, have become increasingly concentrated in an ever-smaller number of counties,” Justice Breyer wrote in the portion of his dissent citing End of its Rope and Garrett’s article forthcoming in the Notre Dame Law Review, “The State of the Death Penalty Decline.” “In the mid-1990’s, more than 300 people were sentenced to death in roughly 200 counties each year. By comparison, these numbers have declined dramatically over the past three years. A recent study finds, for example, that in 2015, all of those who were sentenced to death nationwide (51 people in total) were sentenced in 38 of this Nation’s more than 3,000 counties; in 2016, all death sentences (31 in total) were imposed in just 28 counties nationwide (fewer than 1% of counties).”

Prior to joining the Duke Law faculty, Garrett was the White Burkett Miller Professor of Law and Public Affairs and Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia.

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