Duke Law Journal

Muscle Memory and the Local Concentration of Capital Punishment

Abstract

The modern death penalty is not just concentrating in a handful of practicing states; it is disappearing in all but a few capitally active localities. Capital-punishment concentration, however, still surfaces more as the subject of casual observation than as the object of sophisticated academic inquiry. Normative and doctrinal analyses of the phenomenon are virtually nonexistent, in part because the current ability to measure and report concentration is so limited.

This Article is the first attempt to measure capital-punishment concentration rigorously, by combining different sources of county-level data and by borrowing quantitative tools that economists use to study market competition. The analysis yields three major findings: (1) capital sentencing is concentrating dramatically; (2) executions are concentrating more gradually; and (3) both trends persist within most capitally active states.

Certain normative and doctrinal conclusions follow from the empirical findings. The causes of concentration are likely to be more bureaucratic and path dependent than they are democratic and pragmatic, reflecting what I call the “muscle memory” of local institutional practice. If local muscle memory indeed explains concentration, such concentration violates basic punishment norms requiring equal treatment of similar offenders. This problem notwithstanding, existing death penalty jurisprudence does not account for local concentration. For concentration to have any influence on the outcome of constitutional inquiry, the Supreme Court would have to revise its working definition of “arbitrariness.”