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Sentencing Defendants to Death

In the event that a defendant is found guilty of capital murder, the trial proceeds to a second phase wherein lawyers for both sides present mitigating and aggravating factors and jurors ultimately decide whether to sentence the defendant to death. As mentioned, jurors are never compelled to return a death sentence. Instead, they use discretion in making what the court has referred to as a “reasoned moral choice” ( Penry v. Lynaugh , 1989). Much like every other aspect related to the administration of capital punishment, there is considerable geographic variation in the death sentences handed down each year in the U.S.

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Capital sentencing fi gures again show a topography were there are few but considerably high peaks surrounded by hills and valleys. The most comprehensive research on this topic is Smith’s (2012) anal- ysis of county sentencing patterns across the United States from 2004 to 2009. His fi ndings showed 90% of all U.S. counties did not sentence a single person to death during this time. Furthermore, there was considerable variation even among the 10% of counties that returned at least one death sentence. Only 4% (121) of counties in the U.S. sentenced more than one person to death. These 121 coun- ties accounted for approximately 76% of all death sentences handed down from 2004 to 2009. Fewer



29 The Topography of Capital Punishment


than 1% (29) of U.S. counties returned death sentences at a rate of at least one per year. These coun- ties accounted for roughly 44% of all death sentences. A total of 14 counties sentenced 10 or more people from 2004 to 2009 for a rate of almost 2 per year. These 14 counties accounted for roughly one-third of all death sentences in the United States. Moreover, the counties that actively sentence defendants to death tend to be clustered within a handful of states. In 2009 alone, two-thirds of all death sentences were administered in just 5 states. These states include Alabama, Arizona, California, Florida, and Texas.

Much like prosecutors’ decisions to seek the death penalty, the most pertinent geographic variation is arguably not the differences we observe across states but within states. It is arguably not that surpris- ing that death sentences vary across states given that most states either do not have the death penalty or seldom, if ever, actually use it. Intrastate variation at the county level is arguably a better way to explore potential arbitrariness. Variation within states essentially amounts to jurors operating under the same capital statutes but differently applying those statutes. Texas and Florida, given that they are among the most active death penalty locales, provide telling examples.

From 2004 to 2009, nearly half of all counties in the state of Florida did not sentence a single person to death. Approximately three-fourths of all Florida counties sentenced two or fewer people to death. Only three counties—Doval (13), Broward (10), and Polk (8)—returned more than six death sentences for an average of at least one per year (Smith, 2012). Bowers and Pierce (1980) analyzed sentencing data in Florida from 1973–77 and found that death sentences were 2.5 times more likely in the Panhandle than the southern region of the state. Similar geographic concentrations of death sentences have been observed in Texas. From 2004 to 2009, 222 of Texas’ 254 counties, or 87%, did not sentence a single person to death. Of the remaining 34 counties, 17 sentenced only one person to die during these six years. Only four counties—Bexar (10), Dallas (8), Harris (21), and Tarrant (10)—returned an average of more than one death sentence per year (Smith, 2012).

Similar to capital charging patterns, the county-level variation in death sentences cannot be explained by homicide rates or population size. To be sure, many of the counties around the U.S. that seldom, if ever, sentence anyone to death also seldom, if ever, experience murder, much less aggravated murder. It is not necessarily the case, however, that the most active death penalty jurisdictions are those that experience the most lethal violence (Lewin, 1995). In fact, some research suggests suburban counties tend to sentence more people to death than urban counties despite having lower murder rates in general (Bowers & Pierce, 1980; Lewin, 1995; Paternoster, 1983). For example, at the end of 1999, San Mateo County, which is a suburb of San Francisco, was responsible for 17 people on California’s death row at the time. Neighboring San Francisco county, despite having a population 20% larger with twice as many murders as San Mateo County, was responsible for only four death row inmates (Willing & Fields, 1999).

Before we move to the next stage of the geography of capital punishment, it is important to be explicit about one very important fact—the “places” that most commonly fi le capital charges and secure the death penalty are not necessarily the same places that most commonly carry out execu- tions. Some states operate similar to New Jersey, which had sentenced people to death but had not carried out an execution for over 30 years prior to abolition. This can even further complicate the topography of capital punishment because states that seldom carry out executions can have relatively large death row populations.

The most telling example comes via the state of California. Most people do not associate Califor- nia with the death penalty primarily because the state seldom executes people. Only 13 people have been executed by the state of California since 1976. That ranks them seventeenth on the list of total executions during that time (DPIC, 2016b). They do, however, sentence people to death quite regu- larly. From 2004 to 2009, California led the nation with a total of 110 new death sentences. Florida and Texas were next with 100 and 97 death sentences, respectively. Death sentences in California were highly concentrated in a couple counties. A full 64% of California counties sentenced no one to death



Adam Trahan et al.


from 2004 to 2009. A full 90% of counties returned no more than one death sentence in those six years. Only six counties returned more than one death sentence. A total of three counties—Los Ange- les (33), Riverside (15), and Orange (14)—collectively accounted for more than half of all the death sentences handed down in California from 2004 to 2009. In the year 2009 alone, the same number of people were sentenced to death in Los Angeles County (13) as the entire state of Texas (Smith, 2012).

The result of California sentencing a lot of defendants to death but rarely executing them is a gigantic death row population. The total number of people on death row in California stands at is 741, which gives them the largest death row population in the United States. California’s death row population is larger than the next two largest state death row populations—Florida (396) and Texas (254)—combined (DPIC, 2016b). Pennsylvania has a similar albeit less dramatic disjuncture between sentencing and executing offenders. A total of three people have been executed in the state of Penn- sylvania since 1976, which ranks them near the bottom of total executions during that time. Pennsyl- vania currently has the fi fth-largest death row population (175) in the United States. Of course, some states quite regularly see death sentences through to execution.


Before we discuss the geography of executions, it is important to keep a few contextual points in mind. First, we must again be cautions of broad generalizations. In the fi rst section of this chapter we discussed the basic state-to-state geography of capital punishment laws. Specifi cally, 31 states in the country have laws that allow for capital punishment and 19 states do not. There is, however, a very important distinction in the geography of capital punishment between states that allow for capital punishment and those that actually practice it.

A total of 34 states have carried out at least one execution since the Supreme Court reinstated capital punishment in 1976. However, the total number of executions carried out in each of these states varies considerably. Four states—Connecticut, Colorado, New Mexico, and Wyoming—have executed only one person in this 40-year history. A total of 11 states have carried out fewer than fi ve executions. Almost half (15) of the states that have carried out at least one execution since 1976 have executed fewer than ten people (DPIC, 2016b).

From there, there is a rather gradual increase in the state execution totals. Nine states have carried out more than ten but fewer than 40 executions. What this tells us is that 70% (24 of 34) of the states that have executed at least one person have executed an average of less than one person per year. Of course, several of the remaining ten states have carried out a relatively large number of executions. Five of these states—Florida, Oklahoma, Missouri, Texas, and Virginia—have execution totals above 80 for an average of more than two per year since 1976. Virginia and Oklahoma are the fi rst states on the slope to exceed 100 executions, with totals of 111 and 112, respectively. From there, we climb very steeply to Texas, which has carried out 538 executions over the past 40 years (DPIC, 2016b). This total amounts to more executions than the next six states combined. Table 29.2 shows the total number of executions by each state since 1976. It also provides execution totals for each state over the past two, fi ve, and ten years, which we will subsequently discuss.

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