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May 31, 2016

Is "geography" really an "arbitrary feature" of a capital prosecutions?

The question in the title of this post is prompted by this passage today in Justice Breyer's dissent from the denial of certiorari in Tucker V. Louisiana (with my emphasis added):

Lamondre Tucker shot and killed his pregnant girlfriend in 2008.  At the time of the murder, Tucker was 18 years, 5 months, and 6 days old, cf. Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”), and he had an IQ of 74, cf. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (execution of the intellectually disabled violates the Eighth Amendment). Tucker was sentenced to death in a Louisiana county (Caddo Parish) that imposes almost half the death sentences in Louisiana, even though it accounts for only 5% of that State’s population and 5% of its homicides. See Pet. for Cert. 18.

Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography.  See Glossip v. Gross, 576 U. S. ___, ___–___ (2015) (BREYER, J., dissenting) (slip op., at 12–14).  One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row.

I do not dispute that Tucker might not have been sent to death row if he had committed the same murder, and had been tried and sentenced, in another county. Indeed, one can certainly assert that had Tucker committed the same murder in, say, Michigan, a state without te death penalty, he definitely would not be on death row.  But, I do not think it quite right to call this geographic reality "an arbitrary feature of his case."  Arbitrary means "not based on reason," but there are many (seemingly sound) reasons why geography often will define and influence how a capital prosecution proceeds.

Most obviously, a criminal being capitally prosecuted has generally picked where his murder took place, and he typically will be (and some times only can be) prosecuted in a particular locality due to his own homicidal choices.  Moreover, the locality where a murder is committed necessarily experiences the impact of the crime most directly, and local decision-makers ought to be most responsive to local concerns as to how best to respond to that murder.  And, a locality's prosecutors and judges and jurors have all been selected to be respresentative of local community views and judgments.  (Indeed, in his concurring opinion in Ring v. Arizona, Justice Breyer made much of a "community’s moral sensibility" in the resolution of capital cases and the importance of a jury's role in reflecting "a community’s sense of capital punishment’s appropriateness in a particular case.")

In other words, to parrot a newly popular SCOTUS term, I think it is nonsense to call geography an "arbitrary feature" of a criminal case. And while lots of abolitionists complain about the impact of geography on the adminstration of capital punishment, I have never found this complaint to be conceptually convincing or nearly as compelling as other arguments against the modern administration of the death penalty.

May 31, 2016 at 11:33 PM | Permalink


All of Breyer's complaints are, equally, as nonsensical as his geography one.

The Dallas Morning News writes:

"The report illustrates the nation’s grossly uneven use of the death penalty, with 2 percent of the counties responsible for most executions, far out of proportion to their population."

The DMN, as most media, as Breyer, missed both the forest and the trees. Why? They didn't even look. They, intentionally, blind folded themselves.

There are 3144 counties (aka as parishes & others).

If we look at the 2% of the counties, with the highest number of death penalty convictions in death penalty states, I suspect we will be in the ballpark of having a majority (51%) of the nations capital murders, in death penalty states, with the greatest variable in executions, caused by the judges, the case managers.

In 2002, the 75 largest counties had 51% of murders and non-negligent manslaughters, 61% of robberies and 36% of forcible rapes, nationally (1), which is in the ballpark of 60-70% of what we know as capital, death penalty eligible murders, inclusive of robbery/murders, rape/murders, police murders, multiple and serial murders, in death penalty eligible counties.

75 is nearly 2.4% of all counties, both death penalty eligible and not.

There ya go.

Judges, by far, cause the most "disparity" issues (2)

1) Highlights, page 1, State Court Processing Statistics, 1990-2002, Violent Felons in Large Urban Counties, Bureau of Justice Statistics, U.S. Department of Justice, July 2006, NCJ 205289, http://www.bjs.gov/content/pub/ascii/vfluc.txt

2) Judges Responsible For Grossly Uneven Executions

Posted by: Dudley Sharp | Jun 1, 2016 7:22:43 AM

Yes, including in the 6th Amendment, local trials (which will result in varying punishments in practice) are encouraged legitimately for a range of reasons.

The concern here -- and it need not just be "abolitionists" -- is to determine if very different results, perhaps extreme results (e.g., one county having 95% of the capital sentences even if objectively the murders are in no way that skewered in respect to the "worse of the worst" etc.), is legitimate ENOUGH to meet constitutional safeguards.

Two issues here -- (1) the death is different rule (2) the concern for cruel and UNUSUAL punishments. The word "unusual" here might include a sentence generally unusual or absent except for a certain locality. If, e.g., the locality is dominated by those with strong beliefs the death penalty is warranted given the religion of the area, that factor alone -- given that the death penalty has to be warranted per the "worse of the worst" of the defendant -- might not be enough.

Local justice is sometimes balanced for justice reasons with change of venue etc. anyway. At a certain point, severe regional differences -- let's say if being executed depends on the chance of the crime being done in 2% of the country -- might be problematic. "Arbitrary" at some point is a matter of degree.

Posted by: Joe | Jun 1, 2016 8:39:14 AM

This goes hand in hand with the Justice's internationalism. He has no respect for venue. This is also one of the major reasons why I oppose the change to Rule 41. Geography was always intended to be a limitation on the court's power, indeed at the founding this was by virtue of necessity. Take away the context of geography and what you get is a bland uniformity that robs the nation of the creativity necessary for social progress.

This is why I don't buy into @joe's logic that "unusual" needs to be understood in a geographically comparative sense. Joe sees certain divergences as "problematic" but I don't see anything problematic about such divergences. Joe asserts that arbitrary is a matter of degree but that avers both too much and too little. In reality, everything is arbitrary simply because time never repeats itself and thus no two situations are ever perfectly identical. In order words, any type of uniformity or regularity is in some sense fictional or artificial.

Anyhow, Doug writes, "But, I do NOT think it quite right to call this geographic reality...." I think Doug you are missing a "not" in that sentence.

Posted by: Daniel | Jun 1, 2016 9:23:02 AM

I don't necessarily think you're wrong. In fact, I think there is much that cuts against Breyer's position precisely because we value the moral judgment of a jury in capital cases. That being said, it does seem disproportionately impactful. I think it has to do with the broad, virtually unlimited discretion factors like "outrageously or wantonly vile, horrible, or inhuman" that means a lot of different things to different people and the decision to appellate courts to essentially not review these things (this is different from right after the Supreme Court reinstated the death penalty, when the term was limited to things like torture killings and the US Supreme Court actively reviewed the standard).

Ultimately, I don't think Justice Breyer's opinion will persuade the unpersuaded, but I do think it is a notable contribution to the capital punishment debate.

Posted by: Erik M | Jun 1, 2016 9:23:14 AM

The battle between central and local control is an on-going debate in many democracies (not just our own). Take a look at Europe (or countries like the United Kingdom) where there is a constant debate about what should be done at the EU level, at the national level, at the regional level or the local level.

Local control -- whether by locally elected prosecutors (restrained by local finances and local priorities) or local juries -- will result in some variations in the charges filed and penalties imposed. You can get less variation by replacing the locally-elected prosecutor with a state-appointed prosecutor who answers to a state official (similar to the U.S. Attorney system) and a narrower range of punishment, but is that reduction in variation worth the centralization that will give less weight to local opinions and needs.

Both in the respect for state autonomy found in Article IV and in the Tenth Amendments and in similar provisions in many state constitutions (with regards to counties and cities) and in federal (and state) constitutional provisions regarding venue, the U.S. has expressed a substantial preference for local control even with the understanding that it will result in regional variations. Sound textual analysis would argue against treating the existence of local control as a basis for finding that any particular punishment is constitutionally unusual merely because it is more likely to be imposed in certain localities but not in others.

Posted by: tmm | Jun 1, 2016 10:40:25 AM

The geographical comparative definition I provide is not merely my own. It reflects current constitutional law and such law over time. Solem v. Helm's headnotes summarizes, e.g.,:

"(a) Criteria that have been recognized in this Court's prior cases include (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction, that is, whether more serious crimes are subject to the same penalty or to less serious penalties; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."

This need not have "no respect for venue." I argue (sic) this is a matter of degree. Breyer, e.g., can argue that some degree of flexibility here is okay but at a CERTAIN POINT it is too far. This is not necessarily correct as a legal and policy matter, but it has the charm of showing more nuance than the rather crude denunciation we sometimes get. Also, Daniel is using his own gloss on words again, including what "arbitrary" means, which is okay, if we realize what he is doing. The word in this legal context has a specific meaning and "never repeats itself" is not it. And, in fact, again this is now a trend, that isn't how many an average person use the word.

Reference is made to the 10A. But, "local control" here goes to the county level. States do have broad power over crime control but there are also constitutional limits here including as set forth in the 14th Amendment. "Sound textual analysis" is quite possible where states retain control but to balance other constitutional concerns that large differences of who lives and dies at some point warrants more centralized state oversight etc.

Finally, as to persuading the unpersuaded, what else is new? But, I repeat this is not merely "abolitionist." Someone who SUPPORTS the death penalty might find it troublesome if who lives and dies -- granting execution is just -- turns so much on where one commits a crime. Again, not something like 1 in three or something but 50 to 1. This is so especially since local control can still be in place in various ways. For instance, prosecutorial discretion very well might be a big factor here -- local juries might not even have the ability to choose in most cases given the local prosecutors are wary except in select districts.

Posted by: Joe | Jun 1, 2016 11:58:00 AM



The first definition of the word arbitrary is the exact same definition I use, "determined by chance, whim, or impulse, and not by necessity, reason, or principle". The twist I put on it in my comment is to say that we can talk about TIME as being arbitrary as well as PLACE. I did so to illustrate the silliness of Breyer's position. Let's take his quote and substitute a word: "but because of an arbitrary feature of his case, namely, time." When we do we see the absurdity in his claim because every particular legal case is arbitrary in time. Indeed, any legal case which did not arise by chance we would accuse the parties of gaming the system and the judge of running a kangaroo court.

So this claim that somehow I'm using words in weird ways is asinine. I'm using them exactly in the way that the dictionary defines them. If the legal profession uses the word as jargon to mean something other than what I have quoted here that is news to me. I'm willing to be corrected on that point.

Posted by: Daniel | Jun 1, 2016 2:35:21 PM

Great debate, folks, and thanks Daniel for catching my (now fixed) left-out word.

Posted by: Doug B. | Jun 1, 2016 3:55:14 PM

Isn't "geography" another way of saying that the defendant is denied the equal protection of the laws because the death penalty as applied is so dramatically differently from one parish to another applying precisely the same procedural and substantive law, to circumstances that have no statutorily recognized factual distinctions from each other, that effectively one parish is applying one law to one defendants, while another parish is applying a different law to another identically situated defendant (with regard to all statutorily relevant distinctions in the offense).

Posted by: ohwilleke | Jun 1, 2016 8:04:49 PM

Another way to describe the issue is statutory vagueness. If the definition of a crime eligible for the death penalty is so vague that the interparish disparities seen are possible then it does not provide meaningful guidance to potential criminal defendants and should be void for vagueness.

Posted by: ohwilleke | Jun 1, 2016 8:08:25 PM

@Daniel, used "arbitrary" this way:

"In reality, everything is arbitrary simply because time never repeats itself and thus no two situations are ever perfectly identical. In order words, any type of uniformity or regularity is in some sense fictional or artificial."

You cite this definition:

"determined by chance, whim, or impulse, and not by necessity, reason, or principle"

The fact something doesn't "repeat itself" in a "perfectly identical" way is not the same as it being merely by "chance, whim" etc. But, maybe "same" has some special meaning too. Sorry. Your usage of language continues to confuse. But, maybe I'm the "asinine" one, using your usage of language, who's to know?

I'm sorry to focus on language like this, since it's tedious, but at some point when it is used this way, especially when others like Breyer are sneered at in part because their arguments are slipshod treated, it's too much.

It doesn't really help to criticize Breye's position too much though I guess as with not needing to be an "abolitionist," that might be something even those who disagree with his position can see.

Posted by: Joe | Jun 2, 2016 9:17:02 AM

ohwilleke ... that's a pretty good way to phrase it with the other side saying that like "beyond a reasonable doubt," the system does allow a good deal of discretion in applying the overall punishments.

Posted by: Joe | Jun 2, 2016 9:19:14 AM


The question for equal protection would be whose actions are denying equal protection and to whom. The "tough" prosecutors are applying the law as written (or at least much closer to as written) seeking the death penalty when there is probable cause to believe that the defendant is eligible and a reasonable probability to believe that the jury and court will return a death sentence. Unless the equal protection clause requires all prosecutors to show leniency (even if not warranted by the facts of the case) because some prosecutors are showing leniency is a rather novel theory. (Given that there are some differences in the punishment applied for all offenses across jurisdictions, it is unclear where the line would be drawn other than the line of "death is different," except when it isn't.)

The statutes really aren't vague. What has made the sentencing decision less predictable is the Supreme Court's interpretation of due process as allowing a defendant to argue anything as mitigating evidence and a jury to impose a lesser sentence for any reason. If the argument is that "due process" requires allowing a certain outcome, a later argument that the breadth required by due process violates due process by making the law vague tends to show that the initial premise (that due process requires a certain outcome) questionable.

Posted by: tmm | Jun 2, 2016 10:50:45 AM

I thought this was a good opinion piece on this issue as well: http://www.bloomberg.com/view/articles/2016-06-01/democracy-and-the-death-penalty

Posted by: Erik M | Jun 2, 2016 4:05:36 PM

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