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October 13, 2016

Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty

In this post earlier this year, I noted the significant new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   And in this post a couple of months ago, I highlighted the new big project and first part of a report from the the FPP providing an in-depth look at how the death penalty is operating in the handful of counties still actively using it.  The second part of this report has now been released under the title "Too Broken to Fix, Part II: An In-depth Look at America’s Outlier Death Penalty Counties," and it is available at this link. Here is its introduction:  

As we noted in Part I of this report, the death penalty in America is dying.

In 2015, juries only returned 49 death sentences — the fewest number since the death penalty was reinstated in 1976.  Of the 31 states that legally retain the death penalty, only 14 — or less than half — imposed a single death sentence in 2015.  When we look at the county level, the large-scale abandonment of the death penalty in the country becomes even more apparent.  Of the 3,143 county or county equivalents in the United States, only 33 counties — or one percent — imposed a death sentence in 2015. Just 16 — or one half of one percent — imposed five or more death sentences between 2010 and 2015.  Among these outliers, six are in Alabama (Jefferson and Mobile) and Florida (Duval, Hillsborough, Miami-Dade, and Pinellas)—the only two states that currently permit non-unanimous death verdicts.  Of the remaining 10 counties, five are located the in highly-populated Southern California region (Kern, Los Angeles, Orange, Riverside, and San Bernardino). The others include Caddo Parish (LA), Clark (NV), Dallas (TX), Harris (TX), and Maricopa (AZ). As Justice Stephen Breyer noted in his 2015 dissent in Glossip v. Gross, “the number of active death penalty counties is small and getting smaller.”

In this two-part report, we have endeavored to figure out what makes these 16 counties different by examining how capital punishment operates on the ground in these outlier death-sentencing counties. In Part II, we highlight Dallas (TX), Jefferson (AL), San Bernardino (CA), Los Angeles (CA), Orange (CA), Miami-Dade (FL), Hillsborough (FL), and Pinellas (FL) counties.

Our review of these counties, like the places profiled in Part I, reveals that these counties frequently share at least three systemic deficiencies: a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion. These structural failings regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities.

This is what capital punishment in America looks like today. While the vast majority of counties have abandoned the practice altogether, what remains is the culmination of one systemic deficiency layered atop another.  Those who receive death sentences do not represent the so-called “worst of the worst.”  Rather, they live in counties with overzealous and often reckless prosecutors, are frequently deprived access to competent and effective representation, and are affected by systemic racial bias.  These individuals are often young, and many have significant mental impairments. Some are likely innocent.  This pattern offers further proof that, whatever the death penalty has been in the past, today it is both cruel and unusual, and therefore unconstitutional under the Eighth Amendment.

Prior related posts:

October 13, 2016 at 09:45 AM | Permalink


While I understand why death penalty opponents use the number of counties/parishes, it really is misleading for several reasons.

First, it includes counties in states without the death penalty. Needless to say, regardless of the number of murders per year in those counties, there will not be a death penalty from those states.

Second, it ignores the issue of population size and homicide rates. I live in a rural county that averages about one murder every two to three years. So having one or two death sentences over thirty years is not a lower percentage of murderers getting the death penalty; it's just having fewer murderer who can be given the death penalty. All of the counties on the list are urban or suburban counties -- five from LA, Las Vegas, Dallas, Houston, Phoenix, Jacksonville, St. Petersburg, Miami, Tampa, Shreveport, Mobile, and Birmingham. It should not be a surprise that, with more murders, these counties tend to impose the death penalty more often than counties with less murder.

Third, it ignores the question of resources. An urban/suburban prosecutor's office has the staff to cope with the demands of a capital murder case more easily than does a rural county. When my county had a capital case, the additional expenses that the county had to bear (partially reimbursed by the State) was approximately the same as the typical annual budget for the office. In an urban office, where you know that you will have some death penalty cases going most years, that expense is a regular feature of the budget. Additionally, the urban office has the experience in handling those cases so certain parts of the process becomes "routine," requiring less staff time.

Rather than focusing on raw numbers, I would be more concerned with a comparison based on the percentage of homicide charges in a county that get the death penalty with some breakdown based on size of counties (e.g., under 50,000/50-100,000/100-250,000/250-500,000, over 500,000). Using this measure, do certain counties standout from the crowd and is there something about those counties that are different from counties that are less likely to impose the death penalty. (p.s. Overzealous is a loaded semantically meaningless term in this context representing a judgment by a group opposed to the death penalty as to when the death penalty should be sought. An equally valid argument can be made that other counties are underzealous.)

Posted by: tmm | Oct 13, 2016 11:36:02 AM

Determining what is "unusual" and so on would include looking at those places that have the greater (no death penalty) as well as the lesser (having it but not applying it much). How "really misleading" this is depends on what exactly you are trying to say.

It's true raw numbers only take us so far (this is a problem when used by various sides) since a county can be tiny or whatever. Putting aside raw numbers at times can be of some value. For example, an op-ed recently cited on this blog didn't just do that. It argued that taking everything relevant in consideration that the problem of disparate numbers existed. The report as well argues that the areas have various problems, so in effect there is a red flag and merely citing murder rates won't address it.

This applies to resources too. It's quite true this factor has to be weighed but some do. And, I'm curious if "unusual" was and is applied in that fashion. Is a penalty not constitutionally or seen as such on a policy/society level "unusual" if it is a question of resources? If that is the problem, perhaps there still is a problem, but how the death penalty is carried out should be changed (not that I think it's worth it). Thus, Doug Berman thinks the federal government should take on more just for that reason.

The p.s. speaks of "Overzealous" being loaded. I'm sure it is in some respect but that doesn't mean it is "meaningless" -- it is simply not shown that there aren't "tough on crime" types or whatever. People who have certain priorities. Now, that might be a good thing. "Zealous" is not necessarily a criticism. But, it is something that can objectively be determined.

Posted by: Joe | Oct 13, 2016 12:14:59 PM

The bottom line is that society as represented by the vast and overwhelming majority of counties, both urban and rural, get by fine without resort to use of the death penalty. Those few others, discussed in the report, are typified by a range of discriminatory and arbitrary decisions to prosecute to the death penalty - often by persons who, by their own words, display exceptional and extreme behaviors unfitted to the grave responsibility with which they are entrusted, often in the further context of outrageous deficiencies in defense, procedures and due process.

Posted by: peter | Oct 13, 2016 4:43:57 PM

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