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64 Vand. L. Rev. En Banc 1 (2011)

handle is hein.journals/valewenb64 and id is 1 raw text is: On Saving the Death Penalty: A Comment on Adam Gershowitz's Statewide Capital Punishment Eric Berger* I. INTRODUCTION ...............1........................... II. THE ECONOMIC AND POLITICAL OBSTACLES TO REFORM........ 3 III. THE RELATIVE MERITS OF REFORM ........................ 8 IV. CONCLUSION ........................................... 14 I. INTRODUCTION We all know that Texas is the capital of capital punishment.' Since 2006, Texas has carried out nearly half of all executions nationwide.2 In 2007, more than sixty percent of the nation's executions occurred in Texas.3 Whereas momentum seems slowly to be turning against capital punishment elsewhere,4 Texas soldiers on.5 * Assistant Professor of Law, University of Nebraska College of Law. Thanks to Ty Alper, Anne Duncan, Adam Gershowitz, Bob Schopp, and Elisabeth Semel for very helpful comments; to Omaid Zabih for excellent research assistance; and to James Gottry, Steven Haymore, Niels Jensen, and the other editors of the VANDERBILT LAW REVIEW for superb editorial assistance. Remaining errors are mine. 1. Corinna Barrett Lain, Deciding Death, 57 DUKE L.J. 1, 45 (2007). 2. According to data available at the Death Penalty Information Center, Texas executed 109 individuals from the beginning of 2006 to January 9, 2011. The other forty-nine states collectively executed 121 people. Death Penalty Information Center, Searchable Executions Database, http://www.deathpenaltyinfo.org/executions (last visited Jan. 9, 2011). 3. Adam Liptak, At 60% of Total, Texas Is Bucking Execution Trend, N.Y. TIMES, Dec. 26, 2007, at Al. 4. See James S. Liebman & Lawrence C. Marshall, Less Is Better: Justice Stevens and the Narrowed Death Penalty, 74 FORDHAM L. REV. 1607, 1650-65 (2006) (summarizing recent erosion of support for capital punishment); Elisabeth Semel, Reflections on Justice John Paul Stevens's Concurring Opinion in Baze v. Rees: A Fifth Justice Renounces Capital Punishment, 43 U.C. DAVIS L. REV. 783, 866 (2010) (The national trend is still toward a decreased use of the death penalty.). 5. Interestingly, while executions in Texas remain high, capital sentences in Texas have declined dramatically. See Semel, supra note 4, at 820 n.169 (noting that capital sentences in Texas have declined by sixty-five percent since 2006). 1