The United States Supreme Court struck down the death penalty in Furman v. Georgia in 1972 because of the arbitrariness of its imposition – the lack of any principled basis to distinguish the few people who were sentence to death from thousands of others who committed crimes as bad or worse but were not sentenced to death. In his concurring opinion in the case , Justice Potter Stewart wrote:
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968,many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.
An examination of imposition of the death penalty between 2004-2009 reveals that imposition of the death penalty remains as arbitrary as ever. Being sentenced to death is still like being struck by lightning – or perhaps being hit by a tornado. For there is a “death belt” just as there is a tornado belt. Just 10 percent of the counties in the countryaccount for all death sentences imposed during that period. About five percent of counties are responsible for the death sentences imposed in 2007-09.
This is not the way it is supposed to be. States responded to Furman by enacting new capital sentencing statutes aimed at minimizing arbitrariness in the imposition of the death penalty. The Supreme Court approved the statutes enacted by Georgia, Florida and Texas in 1976 based on this promise of consistency in the imposition of the death penalty in the cases of Gregg v. Georgia, Proffitt v. Florida, and Jurek v. Texas. Since Gregg and its companion cases, the Court has found the death penalty for rape (including rape of a child), robbery (summary opinion), juvenile defendants, and the mentally retarded to violate the ban on “cruel and unusual” punishment in the Eighth Amendment of the Constitution. In each instance where the Court found the Eighth Amendment restricted the scope of the death penalty, it relied upon its assessment of the “evolving standards of decency that mark the progress of a maturing society.” The Court has looked to the sentencing practices of juries as a “on the ground” indicator of a punishment’s fit with modern standards of decency.
However, even in states that frequently impose the death penalty, such as Texas, Alabama, Florida, California, and Oklahoma, the majority of counties in these states did not impose death from 2004 though 2009. Instead, a few counties within those states account for a disproportionate number of death sentences year after year.
For example, between 2004-2009:
- Jefferson County has 16
- Houston County had 9
- Mobile County had 5
- Maricopa County had 37
- Pima County had 7
- Yuma County has 3
- Los Angeles County had 33
- Riverside County had 15
- Orange County had 14
- Duval County had 14
- Broward County had 10
- Polk County had 7
- Oklahoma County had 18
- Tulsa County had 8
- No other county had more than two.
- Harris County had 22
- Bexar County had 10
- Tarrant County had 10
Philadelphia County in Pennsylvania had 11. Clark County in Nevada had 10. Both Shelby County in Tennessee and Cook County in Illinois had 7. Caddo Parish in Louisiana had 6. Spartanburg and Lexington Counties in South Carolina each had 5.
The murders committed in those counties are no more heinous than murders committed in other counties, nor are the offenders in those counties more incorrigible than those who commit crimes in other counties. Examination of prosecutorial practices demonstrate that some prosecutors seek death in cases in their jurisdictions while other prosecutors in the rest of the state do not seek death for the same – or even more aggravated – murders.
These practices are reflected on the maps at the start of this post . The maps show which counties has imposed death in each year from 2004 to 2009, the aggregate number of death sentences over that period, and the federal death sentences since the federal death penalty was reestablished in 1988. These figures include re-sentences to death (after a person’s first sentence was reversed by an appellate court), so, if anything, these maps are overly generous to those who believe that American juries (as opposed to a small handful of jurisdictions) regularly sentence to death people who commit first-degree murder.