BOOKS: ​“Geometrical Justice: The Death Penalty in America”

The out­come of a cap­i­tal pros­e­cu­tion can be pre­dict­ed based upon the rel­a­tive social sta­tus of the vic­tim, the defen­dant, and the jurors, apply­ing a soci­ol­o­gy con­cept known as the geo­met­ri­cal the­o­ry of law, accord­ing to the authors of a new book, Geometrical Justice: The Death Penalty in America.

In their new book, released in the Summer of 2022, University of Denver crim­i­nol­o­gy and soci­ol­o­gy pro­fes­sor Scott Phillips and University of Georgia soci­ol­o­gist Mark Cooney apply the con­cept of ​“social geom­e­try,” devel­oped in the 1970s by soci­ol­o­gist Donald Black, to ana­lyze out­comes of cap­i­tal cas­es. After review­ing exten­sive data col­lect­ed in con­nec­tion with the land­mark Baldus Study of cap­i­tal sen­tenc­ing in Georgia and from the nation­al Capital Jury Project, they con­clude that the sen­tenc­ing out­comes in the cas­es in those data­bas­es sup­port key prin­ci­ples of Black’s the­o­ry: the high­er the social sta­tus of the vic­tim and the low­er the social sta­tus of the defen­dant, the more like­ly a death sen­tence will be imposed.

Black first intro­duced the con­cept of a ​“geo­met­ri­cal the­o­ry of law” in his 1976 book, The Behavior of Law (1976). The the­o­ry, Phillips and Cooney explain, posits that the ​“out­come of a case depends on its social geom­e­try — the loca­tion, direc­tion, and the dis­tance of the case in social space.” Social space, put sim­ply, is that ​“realm of real­i­ty humans cre­ate through inter­act­ing with one anoth­er,” and con­sists of five dimen­sions: (1) ​“ver­ti­cal sta­tus” (i.e., wealth); (2) ​“radi­al sta­tus” (i.e., the degree of involve­ment in social insti­tu­tions, such as fam­i­ly, work, reli­gious insti­tu­tions, pol­i­tics); (3) ​“cul­tur­al sta­tus” (i.e., con­ven­tion­al ver­sus uncon­ven­tion­al social traits); (4) ​“nor­ma­tive sta­tus” (i.e., per­ceived respectabil­i­ty); and (5) ​“orga­ni­za­tion­al sta­tus” (i.e., capac­i­ty for collective action). 

The authors obtained data from two pre­mier stud­ies of cap­i­tal pun­ish­ment to per­form their research. Their first dataset was an updat­ed (2020) ver­sion of the data from the late University of Iowa law pro­fes­sor and social sci­en­tist David Baldus and his col­leagues’ study on race and the death penal­ty, which formed the basis of the con­sti­tu­tion­al chal­lenge to Georgia’s racial­ly dis­pro­por­tion­ate appli­ca­tion of cap­i­tal pun­ish­ment case in McCleskey v. Kemp in 1987. Second, they ana­lyzed data from the National Science Foundation-fund­ed Capital Jury Project, to exam­ine the impact of a juror’s social sta­tus on cap­i­tal sentencing decisions.

Using data from the updat­ed Baldus study data, Phillips and Cooney cod­ed val­ues for defen­dants and vic­tims along all five social dimen­sions, pro­duc­ing an over­all sta­tus score. They found that those with the high­est social sta­tus scores were ​“pro­fes­sion­als (e.g. doc­tor, accoun­tant), a par­ent sup­port­ing a child, White, had a clean crim­i­nal record, or were state officials.” 

Phillips and Cooney then sought to test three key propo­si­tions of Black’s the­o­ry. First, ​“down­ward law is greater than upward law” — that is, indi­vid­u­als with cumu­la­tive­ly high­er social sta­tus scores will tend to receive more favor­able treat­ment under the law against indi­vid­u­als of cumu­la­tive­ly low­er social sta­tus than low sta­tus indi­vid­u­als will receive against high­er sta­tus indi­vid­u­als. Second, ​“law varies direct­ly with social sta­tus” — the high­er the social sta­tus the greater like­li­hood of favor­able treat­ment under the law. Third, ​“law increas­es with social dis­tance,” which means that inci­dents involv­ing strangers will receive a greater ​“quan­ti­ty of law” than inci­dents involv­ing non-strangers. Applied in the con­text of cap­i­tal pun­ish­ment, Phillips and Cooney explain, a greater ​“quan­ti­ty of law” — read as a harsh­er pun­ish­ment — would mean a death sen­tence as opposed to life in prison.

Phillips’ and Cooney’s analy­sis of the death penal­ty sen­tenc­ing data pro­duced sta­tis­ti­cal­ly sig­nif­i­cant sup­port for the three key propo­si­tions of Black’s ​“geo­met­ric jus­tice” the­o­ry. Their com­par­i­son of the rel­a­tive social sta­tus­es of vic­tims and defen­dants revealed that 11% of cas­es involv­ing vic­tims of high­er social sta­tus than the defen­dant result­ed in death sen­tences, as com­pared to only one per­cent cas­es in which the vic­tim was of low­er social sta­tus. That, they said, showed that down­ward cas­es are more like­ly to receive a death sen­tence than upward cases. 

In sit­u­a­tions in which the par­ties were of approx­i­mate­ly equal sta­tus, they found that death sen­tences involv­ing high­er sta­tus vic­tims were more like­ly to result in death sen­tences (7% of cas­es) than cas­es involv­ing low­er sta­tus vic­tims (1% of cas­es). Those results, they said, val­i­dat­ed Black’s sug­ges­tion that ​“law varies direct­ly with social sta­tus.” Acknowledging the orig­i­nal find­ings of the Baldus study, which after a regres­sion analy­sis that con­trolled for hun­dreds of fac­tors found that ​“the prob­a­bil­i­ty of a death sen­tence was greater in White vic­tim cas­es,” the authors repeat­ed their analy­sis, remov­ing race from the mea­sure of sta­tus. They found that with­out the explic­it con­sid­er­a­tion of race, the ​“under­ly­ing pat­tern is the same,” that the ​“social sta­tus of the par­ties helps to pre­dict who gets sen­tenced to death.” While sup­port­ing Black’s the­o­ry, the analy­sis did not take into con­sid­er­a­tion the impact of race in influ­enc­ing each of the five dimen­sions of social sta­tus that went into the over­all assess­ment of an individual’s social status. 

Supporting Black’s propo­si­tion that ​“law increas­es with social dis­tance,” Phillips and Cooney found that defen­dants were more like­ly to be sen­tenced to death for killing a stranger (17% of cas­es) than for homi­cides in which the vic­tim and defen­dant knew one anoth­er (3% of cases).

The authors also cal­cu­lat­ed the like­li­hood of a death sen­tence based on the social sta­tus scores of the empan­eled juries, using data from the Capital Jury Project. Coding nine vari­ables to cal­cu­late each juror’s social sta­tus, they found that high sta­tus jurors were more like­ly to vote for death than low­er status jurors.