Tuesday, September 6, 2011
Robert J. Smith (DePaul University College of Law) has posted The Geography of the Death Penalty and its Ramifications (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
One hundred and twenty four people were sentenced to death in 2009; the fewest since the United States Supreme Court re-authorized capital punishment in 1976. This is not an aberration. Death sentences have dropped precipitously over the past fifteen years. The distribution of death sentences nationally demonstrates that a fragmented few counties sentence people to death while the vast majority of jurisdictions largely have abandoned capital punishment. There is nothing to suggest that the murders committed in those active death-sentencing counties are more heinous than murders committed in other counties. Nor is there evidence to suggest that the offenders in those counties are more incorrigible than those who commit crimes in other counties. For those interested in driving down the total number of death sentences or finding a practical way to gauge the level of arbitrariness that exists in the administration of a death penalty scheme, however, the clustering of death sentences around an isolated few counties provides the opportunity for targeted doctrinal, litigation and advocacy strategies.
This Essay proceeds in three parts. In Part I, I detail the geography of the death penalty. We traditionally gauge death penalty activity at the state level, but the county-level distribution of death sentences and executions between 2004-2009 is more revealing. Just 10% of counties nationally returned even a single death sentence. Even with the busiest death penalty states, the vast majority of counties did not return any death verdicts. The distribution of death sentences reveals a clustering of sentences around a narrow band of counties: roughly 1% of counties in the United States returned death sentences at a rate of one or more sentences per year. Similarly, less than 1% of counties in the country sentenced anyone to death (at any point since 1976) whom their respective state executed between 2004-2009. After exploring the distribution of both death-sentences and executions separately, I consider those (very few) counties that both sentence people to death regularly and are situated in states that regularly perform executions. This part concludes by briefly considering possible explanations for why the top death-sentencing counties are the top death-sentencing counties.
Part II addresses the doctrinal, litigation, and advocacy ramifications. The first section discusses the doctrinal implications that result from a focus on county-level death sentencing. The section begins by discussing the Eighth Amendment’s command that the death penalty not be imposed arbitrarily. Special attention is paid to the choice between heightened procedural regulation of capital trials (the path chosen by the Court) and outcome-based approaches (the path not taken). The purpose of the procedural regulation approach was the belief that such changes would result in consistently imposed punishment. The skewed geography of the death penalty suggests that it has not. This section next discusses two alternative methods for presenting challenges that seek to limit capital punishment or render its administration more equitable. It begins with the categorical exclusion approach (e.g. death-ineligibility for juveniles) and its limits, and then proposes a data-driven approach to presenting claims of arbitrariness that focus primarily on comparative sentencing within a single county.
In the second section, I discuss how litigants (as well as other interested parties) might take advantage of the clustering of death sentences around a narrow band of counties. Poor trial representation - brought on by over-burdened, under-resourced and under-trained defenders - is a hallmark of capital representation. New models of representation - including trial consulting offices and data-driven remedies to what I refer to as the “fire-hose” problem - are demonstrating the ability to drastically reduce new death sentences (even in places like Harris County, Texas). Given limited resources, interested parties might prioritize recreating these models in the counties with the highest absolute number of death sentences rather than focusing limited resources on state-based litigation campaigns.
The third section details how the geography of the death penalty might influence abolitionist advocacy strategies. Many of the counties that return the most death sentences are in locations where the state-level government is unlikely to repeal the death penalty. Rather than funneling limited resources to statewide efforts or ignoring these locations altogether, this section explores the benefits of focusing advocacy efforts on county-level actors. County-residents are the ones most affected by the decision to sentence someone to death. In many instances, these are not just moral questions, but also public safety questions that impact how counties spend scarce resources to make their residents safe. Also, local residents are able to wield more influence over local prosecutors or county-level government officials than with state-level officials. This is an especially important consideration where the local population contains a higher percentage of minority group members than in the state population generally.
In Part III, I offer concluding thoughts.