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Charging and Sentencing

In most all jurisdictions around the United States, the decision to charge defendants with capital murder and seek the death penalty lies with local prosecutors. As noted, what makes any homicide defendant eligible for the death penalty is the presence of at least one aggravating factor. However, prosecutors are never required to fi le capital murder charges regardless of the number of aggravators they fi nd during investigation or the strength of the evidence. Seeking the death penalty is an entirely discretionary act. When prosecutors do decide to charge defendants with capital murder, this marks the beginning of the capital punishment system. It may not go far, however. Jurors in capital cases ultimately decide whether to sentence people convicted of capital murder to death ( Ring v. Arizona , 2002). And, much like prosecutors, jurors are never required by law to administer death sentences ( Roberts v. Louisiana , 1976; Woodson v. North Carolina , 1976). No matter the number of aggravating factors jurors agree upon nor their gravity, whether a defendant is deserving of death is left up to the (guided) discretion of capital jurors.

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All of this discretion gives way to some signifi cant geographic variation in fi ling capital murder charges by prosecutors and returning death sentences by jurors. In the sections that follow we will explore this geographic variation and identify the places that most commonly seek and administer death sentences. It is important to note, however, that the geography of charging and sentencing is different than the geography of other aspects of capital punishment in at least two respects. First, capital charging and sentencing are the only features of the death penalty system that occur at the county level. After sentencing, state governments take over, to house death row inmates, see to their appeals, and ultimately carry out executions. Second, the places that most commonly charge defendants with capital murder and sentence them to death are not always the same places that most commonly execute people. For instance, over 90% of all executions carried out since 1976 occurred in just nine Southern states collectively referred to as the “death belt” (Ogletree, 2002). The initial stages in the sequence of capital punishment—charging and sentencing—have a somewhat differ- ent topography.

Filing Capital Charges

Simple counts of how many capital murder charges have been fi led in certain places is not neces- sarily the most meaningful way to measure geographic disparities in seeking the death penalty. The frequency of capital charges in any given county can be confounded by factors such as population size or the prevalence of capital murder. It’s arguably much more telling to explore the geography of charging and sentencing relative to capital murder rates, which capture the prevalence of capital murder as a function of population size. Doing this presents a challenge, though. It requires coherently differentiating which homicides occurred with the presence of at least one aggravating factor (capital murder) from those that had no aggravating factor (noncapital homicide). Here we will review two meticulous studies of capital charging practices in South Carolina conducted at two different periods of the state’s capital punishment history. These studies show how arbitrary capital charging can be from one county to another even in a geographically small state.

Songer and Unah (2006) explored prosecutors’ decisions to seek the death penalty in homicide cases that occurred in South Carolina from 1993 to 1997. The state of South Carolina is separated into 16 judicial districts, with each judicial district encompassing two to fi ve counties. They fi rst calculated the rate of fi ling capital charges among all homicides. Their fi ndings showed considerable geographic variation within the state in regard to seeking the death penalty. The percent of all homicides in each district that were charged as capital murder ranged from a low of 1.9% to a high of 14.9%. That is, the most active district sought the death penalty in over 1 in 10 cases; the least active saw capital charges fi led in fewer than 2 in 100. What is more, this disparity is not the result of some outlier on either end



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of the range. Four of South Carolina’s 16 judicial districts sought the death penalty in at least 12.9% of homicides; six districts sought the death penalty in fewer than 3.9% of homicides.

To measure for the prevalence of fi ling capital charges among capital murder cases specifi cally, Songer and Unah (2006) classifi ed each homicide based on the presence or lack thereof of common statutory aggravating factors. It is not necessarily a true disparity if a greater proportion of homicides are charged with capital murder in one county, or judicial district, than another. It very well could be that a greater proportion of homicides in the more active districts actually are capital murder—i.e., murder with the presence of at least one aggravating circumstance. Songer and Unah’s fi ndings sug- gest this is not the case, however. They found no relationship between the rates of aggravated murder and capital murder charging. For instance, Judicial District 9 showed the lowest percent (1.9) of homicides charged as capital murder but had the third highest percent of aggravated murder (28.9) of all 16 of South Carolina’s judicial districts.

Paternoster (1983) explored all 1,686 homicides that occurred from June 8, 1977, to Decem- ber 31, 1981, in which the offender was known. The stated purpose of his research was to study arbitrariness and discrimination in the administration of capital punishment, one form of which is geographic variation in the likelihood prosecutors seek the death penalty. His fi ndings showed con- siderable variation across South Carolina’s 16 judicial districts in the likelihood of prosecutors seeking the death penalty. The percentage of all homicides in which prosecutors sought the death penalty ranged from 2.1% to 27.9%.

Using data from original police incident reports and indictment and disposition records kept by the State Offi ce of the Attorney General, Paternoster was able to determine which cases met the statutory criteria for capital murder. This showed that 321 (19%) of the 1,686 homicides included in his sample occurred with the presence of at least one aggravating factor and were therefore eligible for the death penalty. Among this subset of capital murders, the geographic variation in seeking the death penalty was even more pronounced. The percentage of all capital murders in which prosecutors sought the death penalty ranged from 86.7% to 16.7% across South Carolina’s 16 judicial districts.

These fi ndings show that the geographic distribution of (capital) murder cannot explain “where” and “why” we seek the death penalty. The places and people that most directly experience aggravated murder are not necessarily the same as those that pursue executions. Of course, fi ling capital murder charges represents seeking the death penalty but not its achievement. The effort of prosecuting defen- dants for capital murder can arguably be for naught if the jury decides not to return a death sentence. This next section reviews the geographic distribution of capital sentencing.

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