Non-weighing states are not specifi c to any particular region in the United States but include Cali- fornia, Kentucky, Louisiana, Missouri, Oregon, South Carolina, South Dakota, Virginia, Washington, and, of course, Georgia and Texas. A third generalized model has emerged in that it is essentially a combination of the other two models. This hybrid model involves fi rst a fi nding of fact that one or more aggravating factors has been proven beyond a reasonable doubt, similar to the Georgia/non- weighing model. If this criterion is met, the jurors are then tasked with a weighing-type analysis of aggravating and mitigating factors (Winchester, 2016). The only “hybrid states” in the U.S. currently are Utah and Colorado. Weighing states include the remaining 18 states.
Changes in State Geography
Even this basic state-to-state geography of capital punishment is in fl ux. Over the past ten years, seven states have abolished their capital punishment systems. This shift is historically unprecedented both in the number of states that have moved away from capital punishment and the rate of change. From the time the Supreme Court reinstated capital punishment in Gregg v. Georgia (1976) until 2007, the number of death penalty states remained quite stable. During most of this 30 years, 38 states main- tained death penalty systems. The remaining 12 states either eradicated the death penalty before the modern era or never reinstated it after the Gregg decision allowed states to reestablish the death penalty. Massachusetts and Rhode Island are exceptions in that they both offi cially repealed the death penalty in 1984 (DPIC, 2016c, 2016d). However, they did not execute a single person in the modern era (DPIC, 2016e).
The seven states that have abolished capital punishment over the past decade, along with the year of their abolition, are as follows: New Jersey (2007), New York (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), and Delaware (2016). Regarding the geography of this shift, the trend toward abolition has occurred outside the Southern United States. It’s not surprising that the American South has been absent from this group, given that Southern states consistently
29 The Topography of Capital Punishment
lead the nation in executions. Furthermore, except for Illinois and New Mexico, the states that have recently pivoted away from capital punishment are in the Northeastern United States.
At least one other implication can be drawn from this experience that is pertinent to the geography of capital punishment. There are several themes in the reasons cited by policy makers for why they abolished capital punishment. A variety of interest groups, including politicians, activists, and scholars, work to understand how trends may shape the future of capital punishment in the United States. Capi- tal punishment is always changing, and being able to identify what drives this change and where the next change might be occurring is of signifi cant inherent and practical importance. In press releases, conferences, and other media, governors and state legislative leaders have, in most instances, been quite transparent about why they passed legislation to abolish their capital punishment systems. In this trans- parency, two longstanding topics of interest in capital punishment policy and scholarship emerged across states as reasons why government offi cials decided to wash their hands of capital punishment.
First, political leaders in several states explicitly cited the high cost of capital punishment as a primary impetus for repeal. In 2007, New Jersey became the fi rst of these states to abolish capital punishment. After appointing a state commission to study the death penalty, legislators in New Jersey passed a bill to repeal the death penalty and replace it with life in prison. Then-Governor Jon Corzine signed the bill on December 17, 2007 (Peters, 2007). The report by the study commission cited a variety of reasons for repealing the death penalty, including that it was not consistent with evolving standards of decency. However, the fi nding that was perhaps most compelling to lawmakers did not relate to justice, per se, but the economic cost of maintaining their system of capital punishment. The com- mission found that the state of New Jersey spent an average of $72,602 annually on each inmate on death row. The average cost incurred by the state for each inmate in general population was $40,121 (State of New Jersey, 2007). Such differences in spending between death row and general population are not uncommon, but one particular fact made New Jersey’s experience somewhat unique—they never executed anyone. The last execution in the state of New Jersey was carried out in 1963 (DPIC, 2016a). Thus, sentencing someone to death in New Jersey essentially amounted to a de facto life sentence but at almost twice the cost. The New Jersey Department of Corrections estimated that the repeal would save the state $1.3 million per inmate over his lifetime (Richburg, 2007).
Then-Governor Martin O’Malley signed legislation to repeal Maryland’s death penalty on May 2, 2013, following a seven-year lobbying effort led in part by O’Malley himself. This lobbying effort was built around two primary tenets. First, proponents of the repeal argued that the death penalty was not producing a deterrent effect. Second, they showed the high cost of maintaining the death penalty in Maryland and articulated ways in which that money could be more effectively spent (O’Malley, 2015; Wagner, 2013; Wagner & Davis, 2013). Connecticut also repealed the death penalty in 2012 in part because of its high cost. Representative Auden Grogins explained “the law is costly . . . it is not unusual for the legal process, from the beginning to the end, to take 20 years” (Dixon, 2012).
One of the most troubling aspects of the administration of capital punishment in the United States is the rate at which we sentence people to death for crimes they did not commit. Thanks in large part to DNA technology, a total of 156 people have been exonerated and released from death row because they were found to be factually innocent (DPIC, 2016f ). What may be even more troubling than the sheer number of innocent people who have been convicted of capital murder and sentenced to death is the rate at which we sentenced innocent people to death. A study by Gross, O’Brien, Hu, and Kennedy (2014) found that as many as 1 in every 25 people sentenced to death are factually
Adam Trahan et al.