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It can be easy to get lost in the facts and fi gures that describe the complex geography of capital punish- ment in the United States. In sum, a total of 31 states have capital punishment laws in place, but the content of those laws vary, primarily in how they attempt to guide jurors’ sentencing discretion. Many of these laws are arguably symbolic, though, when you consider that most of these states seldom apply them. The capital punishment process begins when local prosecutors choose to fi le capital murder charges. Capital punishment is only secured when jurors plucked from the local community decide to return a death sentence. In these respects, the administration of capital punishment is a very local event. Different counties, oftentimes within the same state, have very different patterns of capital charging and sentencing. The likelihood that someone who committed aggravated homicide would be charged with capital murder and sentenced to death can be very different across county lines. What is more, variations in homicide rates and the proportion of homicides that are capital murder cannot explain the variations we observe in capital charging and sentencing. Even still, securing a death sentence does not actually assure an execution. That too depends largely on where we fi nd ourselves.

Some states, such as Texas, characteristically progress through the capital punishment process to execution. To be sure, this progression can take a long time, and a host of factors can derail the pro- cess. But a convicted capital murder who is sentenced to death in Texas stands a considerably higher likelihood of being executed than a person in a similar situation who commits a similar crime in, say, California. This highly arched topography has some interesting implications for the constitutionality of capital punishment in the United States.

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The Supreme Court suspended capital punishment in 1972 in large part because it was being applied arbitrarily. The court heard evidence that legally relevant criteria, such as extraordinary characteristics of offenses, offenders, or victims, could not explain why some people received death

Figure 29.1 Execution trends in the United States, Texas, and Oklahoma, 1990–2016.








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United States Texas Oklahoma



Adam Trahan et al.


sentences while others were spared. The only factor that could, within a range of statistical signifi – cance, explain punishment outcomes was “the constitutionally impermissible basis of race” ( Furman v. Georgia , 1972). What we fi nd here in the geographic variations in how we use the death penalty in the United States is a certain type of arbitrariness—that place matters a great deal in the likelihood that a defendant will be charged with capital punishment, sentenced to death, and ultimately executed.

The greatest threat in this topography to the constitutionality of capital punishment is the variation we observe within states (Paternoster, 1983). Although charging and sentencing are carried out at the county level, these procedures are governed by state statutes. Thus, variation in county-level charg- ing and sentencing within any given state amounts to prosecutors and jurors differently applying the same statutes. Variation across states in the application of capital punishment is not necessarily a con- stitutional issue. The Supreme Court has a long history of sanctioning different models and methods for administering capital punishment from state to state ( Gregg v. Georgia , 1976; Jurek v. Texas , 1976; Proffi tt v. Florida , 1976). However, variation within any given state could amount to arbitrariness in the application of capital punishment similar to that identifi ed by the court when it struck down capital punishment statutes across the country in Furman v. Georgia (1972).


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