Arbitrariness

Legally Irrelevant Factors Impact Death Sentencing

The Supreme Court upheld the death penalty in Gregg v. Georgia based on the conclusion that appropriately tailored death penalty statutes could ensure that the death penalty is applied fairly. More than forty years later, the death penalty continues to be unpredictably applied to a small number of defendants. Despite numerous attempts by legislators to craft laws that would reduce arbitrariness, the death-penalty system has failed to meaningfully identify the “worst of the worst” deeds and doers. Instead, many factors other than the gravity of the crime or the culpability of the offender appear to affect death sentences, including race, geography, gender, access to adequate counsel, and jury misperceptions.

Race

Modern studies of the death penalty continue to find a correlation between sentencing and race. The studies consistently show that those who kill white victims are much more likely to receive the death penalty than those who kill black victims. Some studies have also found bias against non-white defendants. Racial disparities in sentencing and executions suggest that race plays a role in the application of the death penalty.

In 96% of the states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination or both. David Baldus, et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical And Legal Overview, With Recent Findings From Philadelphia, 83 Cornell L. Rev. 1638 (1998). For example, a Florida study reviewing over 10,000 cases concluded that “those suspected of killing whites were 3.42 times as likely to receive a death sentence as those suspected of killing blacks.” Shatz & Dalton, Challenging the Death Penalty with Statistics: Furman, McClesky, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1246-47 (2013).

A study in North Carolina found that the odds of a defendant receiving a death sentence were three times higher if the person was convicted of killing a white person than if he had killed a black person. The study, conducted by Professors Michael Radelet and Glenn Pierce, examined 15,281 homicides in the state between 1980 and 2007, which resulted in 368 death sentences. Even after accounting for additional factors, such as multiple victims or homicides accompanied with a rape, robbery or other felony, researchers found that race was still a significant predictor of who was sentenced to death. Michael L. Radelet and Glenn L. Pierce, Race and Death Sentencing in North Carolina 1980-2007, 89 N.C. L. Rev. 2119 (2011).

For more information, see DPIC’s pages on Race and DPIC’s report The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides (1998).


Gender

The number of women on death row is very small and hence it is difficult to draw any statistical conclusions about gender bias. Death sentences and actual executions for female offenders are rare in comparison to such events for male offenders. In fact, women are more likely to be dropped out of the system the further the capital punishment system progresses. Women commit about 10% of murders in the U.S., with the victims typically being an acquaintance. Women currently make up about 2% of those on death row and about 1% of those executed in the modern era of the death penalty.

Several studies have found that the gender of a murder victim affects the likelihood that a defendant will be sentenced to death. For example,

      • A Florida study found that “a defendant was 2.8 times as likely to be sentenced to death for killing a woman as for killing a man.”
      • In South Carolina, “the odds were 2.19 times higher that female victim murders would lead to the death penalty being charged than male victim murders.”
      • In California, “[i]n single-victim cases, factually death-eligible defendants convicted of killing women were more than seven times as likely to be sentenced to death as factually death-eligible defendants who killed men.”

      Source: Shatz & Dalton, Challenging the Death Penalty with Statistics: Furman, McClesky, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1251-53 (2013).


      Geography

        Regional variation in death sentences suggests arbitrariness in application. While one expects to see some variation from state to state, given differences in population, crime rates and laws, one also expects that in a just system, (1) death sentences concentrated in only one region, and (2) the law of a particular state would be applied uniformly in that state. However, whether a person receives the death penalty depends heavily on where the crime was committed.

        In a 2013 report, DPIC found that “just 59 counties (fewer than 2% of counties in the country) accounted for all death sentences imposed nationwide.” These geographic disparities can be explained by prosecutorial discretion, availability of resources to the defense, racial composition of the jury, and political pressure on judges up for re-election. The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All (2013).


        Representation

        The quality of legal representation is related to the arbitrary application of the death penalty in that inadequate representation contributes to mistakes in capital sentencing.

        States vary enormously in the quality of representation they provide to indigent defendants.

        • In Washington state, one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (Overall, the state’s disbarment rate for attorneys is less than 1%.) (Seattle Post-Intelligencer, Aug. 6-8, 2001).
        • In North Carolina, at least 16 death row inmates, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct. (Charlotte Observer, Sept. 9, 2000).
        • In Texas, about one in four death row inmates has been defended by lawyers who have been reprimanded, placed on probation, suspended or banned from practicing law by the State Bar. (Dallas Morning News, Sept. 10, 2000).
        • In Alabama, about 40 of the approximately 185 death row inmates – some within five months of filing deadlines for state appeals – do not have counsel. (N.Y. Times, July 5, 2001).

        In wrongful conviction cases in which death-sentenced prisoners were exonerated between January 2007 and April 2017, over 23% of them had inadequate legal defense. Moreover, lawyers with inadequate resources are often unable to conduct an adequate investigation into the facts of the crime and regarding mitigation—which is required to explain and humanize their client. Without the mitigating evidence, the jury will be “unable to perform its constitutional obligation to impose a sentence based on ‘a reasoned moral response to the defendant’s background, character and crime,’” and the risk of an unconstitutional death sentence increases. Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835 (1994).

        Even though the legal standard to show that counsel was ineffective is high, death sentences are often reversed due to inadequate counsel. In a South Carolina study published in 2016, over half (26) of the fifty death sentences that were reversed in state post-conviction proceedings were due to ineffective counsel. John H. Blume & Lindsey S. Vann, Forty Years of Death: The Past, Present, and Future of the Death Penalty in South Carolina (Still Arbitrary After All These Years), Duke Journal of Constitutional Law & Public Policy, Vol. 11:1&2, at 199 (2016).

        People who are well rep­re­sent­ed at tri­al do not get the death penal­ty … I have yet to see a death case among the dozens com­ing to the Supreme Court on eve-of- exe­cu­tion stay appli­ca­tions in which the defen­dant was well rep­re­sent­ed at tri­al.” -Justice Ruth Bader Ginsburg (2001)


        Juror Misperceptions

        The Capital Jury Project studied more than 1,200 jurors from 14 states. Based on this research, Professors Bowers and Foglia conclude that the constitutionally mandated requirements established to guide juror discretion and to eliminate arbitrary sentencing are not working. The study identified the following constitutional problems:

        Premature Decision Making - Interviews with jurors found that approximately 50% of those interviewed decided what the penalty should be before the sentencing phase of the trial. This is before they have heard penalty phase evidence or received the instructions on how to make the punishment decision.
        Bias in Jury Selection - Researchers found that jury selection methods resulted in disproportionately guilt-prone and death-prone juries.
        Failure to Understand Jury Instructions - The study found that 45% of jurors failed to understand that they were allowed to consider any mitigating evidence during the sentencing phase of the trial. In addition, two-thirds of jurors failed to realize that unanimity was not required for findings of mitigation.
        Erroneous Beliefs that Death is Required - 44% of jurors said that they believed the death penalty was required if the defendant’s conduct was heinous, vile or depraved, and nearly 37% of respondents said that the death penalty was required if the defendant would be dangerous in the future. The Supreme Court has ruled that no state can require the death penalty solely on the grounds that specific aggravating circumstances have been established.
        Influence of Race - Researchers revealed that the chances of a death sentence in cases with a black defendant and white victim increase when there are five or more white males on the jury, and the chances decrease when there is at least one black male on the jury. These jurors have very different perspectives regarding lingering doubt, defendant remorsefulness, and defendant future dangerousness.
        Underestimating the Death Penalty Alternative - Early findings of the study found that most jurors grossly underestimated the amount of time a defendant would serve in prison if not sentenced to death, and that the sooner jurors believed (wrongly) a defendant would return to society if not given the death penalty, the more likely they were to vote for death.

        William J. Bowers and Wanda D. Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim. L. Bull. 51 (2003). A list of the publications reporting findings from the Capital Jury Project can be found here.