Transcript
Aimee Breaux 0:01
Hello, and welcome to discussions with DPIC. I’m Aimee Breaux, DPIC’s current Data Fellow.
Robert Dunham 0:06
I’m Robert Dunham, DPIC’s Executive Director.
Aimee Breaux 0:08
In this episode, we’ll be discussing DPIC’s newest resource, the Death Penalty Census. This resource was launched at the end of June in conjunction with the 50th anniversary of Furman v. Georgia. The Death Penalty Census is the most comprehensive database of death sentences ever assembled. Over the last five years, DPIC has sought to research every death sentence imposed in the US since 1972. We’ve tracked the defendant’s name and race, the state and county where the sentence was imposed, the year of sentencing, and the current status of the sentence. Rob, can you start us off by explaining why DPIC decided to take on this project?
Robert Dunham 0:47
The main mission that DPIC has had is to make sure that decisions about capital punishment are based on facts, not based on myth or propaganda. As we were looking at the data about capital punishment, we realized that there were huge holes that prevented us from doing some pretty significant analyses. We didn’t know how many death sentences had been imposed, and if you don’t know that— you can’t tell how reliably the death penalty is being carried out. So, we decided that what we need to do is track down all the death sentences; I don’t think we knew five years ago, when we started the project, how extensive that project would be. There are more than 9,700 death sentences, so that’s a lot to track down, but I think now that we have it, we’ll be able to do analyses, and academics and others interested in public policy— will be able to do analyses at the county level, at the state level, and based on things like the race of the defendant. I’ve sort of told the audience that this has been a long project. Since you’ve spent the past year working directly with the data every day, why don’t you tell folks what we did to compile the data and how we checked it for accuracy?
Aimee Breaux 2:01
Absolutely. Really, we compiled this dataset in three sort of big stages. And “we” may be a little bit of a fast and loose term there because there’s been a lot of folks working on this throughout the years. We started — first, we compiled what national databases we could find. So that includes our own datasets, our execution database, exoneration and clemency lists, as well some of our internal tracking datasets, and we combined that with three other big datasets. We ironed out any differences, we removed duplicate information, and really, this would be a good time to give a thanks to Ben Cohen, Frank Baumgartner, Brandon Garrett, and the amazing Legal Defense Fund for, for their data. So we compiled these big data sets. And we compared what we had against aggregate information from the government, from the Bureau of Justice Statistics, and we estimated that we were missing about 40% of sentences. So in the second big stage, we really had to roll up our sleeves and get to work plugging in those missing death sentences. Throughout this stage, we turned to a lot of different sources: a lot of academic, governmental, and news media lists across the country. A lot of these are great resources, they’re just not comprehensive. After we found as many missing sentences as we could, in our third stage, we did the work of testing for accuracy — because it’s one thing to compile data, and it’s a whole other thing to verify our nearly 10,000 rows of data are accurate, and we want to feel confident in the information that we’re putting out there. So we came up with a system for spot checking our data. At least 10% of death sentences and each state were reviewed, so this entailed finding two independent sources to verify each data point: two sources to confirm a defendants race, two sources to confirm the outcome of a sentence, and so on. Some states, it’s worth noting, got a little bit more comprehensive review, depending on if we’re finding errors, we wanted to do a deeper comprehensive reviews of those states. I will say as someone who did a lot of this verification work, it was a surprise— it probably shouldn’t have been, but it was nonetheless a surprise — at how difficult it can be to find some source material, especially when you have information that you’re looking for on older sentences. And really, above all, it was the most difficult to find information when people were sentenced to death and then, ultimately re-sentenced to life, but we managed it. We did a huge comprehensive review, and that is really our process in a nutshell.
Robert Dunham 4:38
I think it’s important to stress here, what we want is to have a database that is accurate, that people can use and can have confidence in. Inevitably, there are going to be some omissions and there may be some errors. So we encourage people, if they are using the database and they see something that they think is wrong, or they have additional new information about the status of the case, to let us know. The whole point of this is to ensure that it is as accurate as possible, as reliable as possible, and as usable as possible. And so, Aimee, before we describe some of the findings that we got. Would you tell listeners how they can actually get access to the census?
Aimee Breaux 5:21
Definitely. The census is available as a database on our website at deathpenaltyinfo.org/database/sentences. That’s deathpenaltyinfo.org/database/sentences. Users can search it to find specific sentences and filter the data. You can also download the dataset as a CSV file. If you have any information you want to share with us, or If you want to correct an error or provide missing information, you can reach out to us at DeathPenaltyCensus@deathpenaltyinfo.org. On our website, while you’re there, you’ll also see that we have a few Tableau visualizations that will let you explore the this dataset through maps and charts. We really see the Death Penalty Census as a resource, as Rob mentioned, really, for the public, for the media, for academics, advocates, government officials, really for anyone working in the death penalty field. It’s a national database, but it gets pretty local. You can use it to understand who has been sentenced to death in your area, what outcomes, what happened with those sentences. And we really just hope that it’s a tool that empowers people to uncover more about the death penalty. So, Rob, let’s discuss some of what we’ve learned from the census. For instances, we discovered that fewer than one out of every six death sentences has resultled in an execution, and we’ve learned that the most likely outcome of a death sentence is that the sentence or conviction is reveresed, and that the defendant is resentenced to life or less. What did those findings say about the death penalty system to you?
Robert Dunham 6:57
Well, in 1972, the United States Supreme Court declared all existing death penalty statutes to be unconstitutional because they were administered in a manner that was arbitrary and capricious. When you take a look at these numbers, there’s now a mountain of evidence accumulated over 50 years, that shows we’re no better at doing it than we were then. The numbers show a system that is rife with error, filled with discrimination, just very, very difficult to fairly administer. When the single most likely outcome of a death sentence is that you end up with something that isn’t a death sentence, that tells you that the system is not very good at doing what it says it’s supposed to be doing. And I think that goes to the overall question about whether we can trust the administration of the death penalty, whether we can have confidence that this is a public policy that can be administered in a way that’s accurate, in a way that’s fair, in a way that’s consistent. The fact is that there have been nearly 10,000 death sentences. And if we think about this, in terms of transportation, if you think of each death sentence as a trip on a train, you realize the most likely outcome is not that you end up at the station that is designed to go to, but that years pass, and after those years pass, you end up exactly where you started. In most of those cases, you won’t even get back on the train. That’s not how a system should work. We also found by comparing the data in the census to other databases that we had, that there are extraordinary, extraordinary problems with capital punishment. It’s not just that you’re three times more likely to have your death sentence reversed than to have an execution, it’s that we can’t reliably determine whether people are guilty, at least not with sufficient reliability. We found that over the course of looking through the census data and researching cases, we found 13 exonerations that we hadn’t previously known about. And that brings the total of people who are wrongly convicted and wrongly sentenced to death, who’ve been exonerated since 1973 up to 189. That translates to one person exonerated for every 8.2 people who are executed — as we tape this today, in the beginning of July 2022, 1,547 executions. We also had another project going on at the same time, in which we were looking at things that could contribute to this extraordinarily high rate of error, the extraordinarily high rate of people being wrongly convicted and sentenced to death. That was prosecutorial misconduct, and we found that there are more than 550 capital convictions or death sentences that have been overturned because of prosecutorial misconduct or resulted in exonerations that involved prosecutorial misconduct. That’s over 5.5% of all death sentences imposed in the United States in the past 50 years. If you take a big picture look, the data show that the system is very, very unreliable. It also tells us two things that should give us additional pause, and that is that the death penalty is arbitrary based on place and time. It depends more on what side of the county line a murder was said to have occurred and what year you were tried. That means that it’s the individual prosecutors and individual counties, who are making the determination whether somebody should live or die, not necessarily the seriousness of the offense. Because if you line up a list of cases and I read you the facts — and one list is cases have ended up in the death penalty and another list would be cases that ended up with a life sentence or less — if I just read you the information on the list, you wouldn’t be able to distinguish between the two of those. So now we have geographic arbitrariness, substantive arbitrariness, and arbitrariness based on time. To give you a sense of how few counties in the United States are responsible for this death penalty policy, we’ve looked at who was imposing death sentences, how often they were imposing death sentences, how many times a year over the course of years, and so forth. What we found was that if you look at death row today, just 34 counties out of the 3,400 counties in the United States — fewer than 1.1% of all the counties in the United States — account for half of everybody who is currently on death row. 2% of the counties account for more than 60% of everybody who is on state death rows. And 82.8% — nearly 83% of U.S. counties — don’t have anybody on death row at all. So rather than having this policy that’s uniformly applied across the country, what we’re seeing is a policy that is decreasing in use across the country becoming even more and more geographically isolated.
And I think geographic isolation, and the fact that a few number of counties engaging in extreme practices really drive the death penalty in the country, I think that is illustrated best when we look at some of the execution numbers: because just five counties in the entire country — Harris County, which is Houston, Texas; Dallas, which is Dallas, Texas; Bexar, which is San Antonio; Tarrant, which is Fort Worth; and Oklahoma County, which is Oklahoma City — those five counties by themselves, account for more than 20% of all the executions in the country in the past 50 years. So when you look at the numbers, they really are remarkable. They tell a tale of just failure after failure, arbitrariness after arbitrariness. Ultimately, they show us that it is a few locations engaging in really aggressive, systemically unfair practices that account for the bulk of the death penalties imposed in the United States.
Aimee Breaux 13:14
Geographic arbitrariness in the death penalty is definitely something that DPIC has been institutionally looking at for years now. We found with the death penalty sentences that that arbitrariness is also reflected in sentences, not just in who’s on death row and executions. Just 76 counties and the federal government account for half of all death sentences. So for context, that’s about 2.4% of counties and the federal government.
Robert Dunham 13:43
Yeah, and there are more counties in Texas than that. So that gives you, if you’re trying to do some comparison, what percentage of the United States that is — it’s a tiny portion that disproportionately accounts for death row. And another thing that we found, not just these are individual outlier counties — other data show that those same counties comprise a disproportionate number of the exonerations. They are disproportionately represented among the counties that have had death sentences overturned because of prosecutorial misconduct. But another thing we found is that it’s outlier practices — things that most of the country don’t agree with — that disproportionately produce death sentences. We found, for example, that counties in Alabama and Florida, which authorized death sentences even if the jury was not unanimous, they accounted for an unusually high percentage of death sentences in the United States. And when we looked at it at the county level and we looked at it compared to other counties the same size as the counties that were imposing death sentences in Florida and in Alabama, we found clustered at the top with the most death sentences per county size, the counties in the states that allowed non-unanimous death sentences, and we looked at death sentences per capita, with all the midsize and smaller counties. Once again, we saw that more people were on death row per person in a county if the county authorized these unusual practices, at least unreliable practices, these practices that essentially deprive defendants of fair trials.
Aimee Breaux 15:23
Let’s talk about what the death penalty census shows us about race.
Robert Dunham 15:27
People who’ve been watching the death penalty for years have had the sense that it’s racially discriminatory. And we did a large report on this in 2020, where we traced the history of capital punishment, and showed how it is a direct descendant of the colonial and U.S. policies of slavery, lynching, and Jim Crow segregation. But we wanted to look at the numbers to see what they would tell us and this is where we combined a series of databases. First, discrimination in the death penalty occurs initially at the stage in which cases are designated as capital cases. The data indicates that there is a race of victim preference: cases end up capital cases when there are favored victims. In the United States, where well over 90% of the prosecutors who are making the decisions are white males, it isn’t a surprise that disproportionately the cases move forward as capital cases when there’s a victim who is white — particularly when there’s a white female victim. And when you then look at those cases that have advanced into the death penalty system, you see that among these cases, you are disproportionately likely to be sentenced to death if you are a defendant of color. What’s interesting is almost all the murders in the United States are committed by a person of one race against the victim who is of that same race. In a race neutral system, you’d expect death sentences to be imposed and executions to be carried out in proportion to the rate at which people kill each other? Well, what we found is that if you are a white defendant, you are sentenced to death 94% of the time in cases involving white victims. That’s not that much of a surprise. But 60% of black defendants who have been executed, were sentenced to death for killing white victims. So, with white defendants, it is almost always the same race killing that gets you considered for capital punishment and may get you the death penalty, but if you are black, it’s almost the opposite. You are way disproportionately likely to be charged capitally and sentenced to death and executed for an interracial murder.
Aimee Breaux 17:40
I think it’s important to note that with the Death Penalty Census, we do hope to one day add information about victim demographics — easier said than done. But I think some of the analysis that you’re talking about, Rob, really highlights how powerful that can be to add that data point.
Robert Dunham 17:59
I think that’s going to be a critical part of the analysis — and that’s going to be the second stage of the census. Here we’ve assembled nearly 10,000 death sentences. As we go forward, we are going to be conducting analyses of the data that we do have and we are also going to be attempting to add new, new information to that. This part took us five years. The next part is going to take us another another batch of years — and I’m not gonna predict how many it is, but we at that time hope that we’ll be able to have information on the age of defendants and the race and the sex of the victims and the cases. But another thing about race that I think is really important that the data underscored is that if you are a member of a vulnerable defendant population — if you’re innocent, if you are intellectually disabled, if you were young, a juvenile at the time of the offense — you are much, much more likely to be a sentence of death, much more likely to be executed if you are black. When we looked at folks who were intellectually disabled, what we found is that 80% of the people who have gotten their death sentence overturned because of intellectual disability were defendants of color. That’s striking, because these people were all vulnerable to be sentenced to death, but it showed that among those who are intellectually disabled, you are disproportionately going to be a person of color. It’s unconstitutional now to subject individuals with intellectual disability to the death penalty, but that hasn’t stopped states from continuing to carry out executions against people who are intellectually disabled. The states have defined intellectual disability in a way in which it’s impossible to prove; they’ve adopted procedural rules that allowed unconstitutional definitions of intellectual disability to be applied; they then have refused to apply the correct definition to those cases once a claim of intellectual disability has been rejected; and the United States Supreme Court has allowed this to happen. As a result of that, we have almost 30 people who’ve been executed since Atkins versus Virginia was decided, who have extraordinarily strong evidence of intellectual disability. And, again, we have that same pattern where 80% of them are defendants of color. So, the data show that the death penalty is employed in a discriminatory way. And this is particularly the case when you’re looking at vulnerable populations.
Aimee Breaux 20:41
Yeah, and I think it’s important to tell these stories and data is something that allows us to tell the stories. Ultimately, as I said, before, we want the Death Penalty Census to be a tool. I wanted to ask you, Rob, what kinds of analysis do you hope people will conduct using the Death Penalty Census.
Robert Dunham 20:58
Lots of people across the United States, have some information about the death penalty. And what we discovered when we’re looking at the exonerations, when we’re looking at intellectual disability, when we’re looking at juveniles is that by cross-referencing the information we had, we were able to fill in a lot of missing information. And we’re able to do some pretty important analyses.
One of the things that I would like to see people do in using the database is to look at the practices of individual counties. Because we now have this database — you can search it by state and by county, and you can see where your county stacks up against other counties. You can see if the death penalty has any reasonable relationship to homicide rates — that’s one of the studies that I think that that we’re going to be taking a look at. The preliminary data indicates that the rates at which death sentences are imposed have little, if anything, to do with the rate at which murders occur. And if we’re interested in creating public policy that makes a difference, public policy that makes the public safer, I think it’s important to understand what works and what doesn’t work. I think it’s important to direct our resources to programs that work and not spend resources on things that don’t.One of the things that we’ve seen in the news a lot recently are the mass shootings, and the preliminary data suggest that the death penalty does not deter mass shootings. But when people are discussing what the public policy response to these shootings should be, we’re hearing a lot of knee-jerk responses, saying, well, let’s bring back the death penalty, or let’s seek the death penalty, as opposed to looking for underlying policies that work. Well, you can take crime data and cross reference it with the death penalty data. You can take data on mass shootings, you can take a whole range of available information, things that tell you what’s going on at the county level, at the state level, and so forth, and run them against these numbers. And then we will be able to much more accurately say the death penalty does deter or it doesn’t. What all the evidence so far in every analysis we’ve done show is that the death penalty does not contribute to public safety. But I think that’s something that other people who specialize in different areas should take a look at. People who are interested in criminal justice reform, criminal legal reform, people who are interested in what policies are cost-effective and what policies are not, should take a look at this data to see how reliable it has been in their jurisdictions. Because when the single most likely outcome of the case is that the death sentence gets overturned, that’s a policy that is systemically inaccurate. It would be much, much cheaper if you instead had a system that the trial’s a lot quicker, the trial’s a lot less expensive, and the cases don’t get overturned with, with nearly the frequency because you don’t have the same rate of error and misconduct.
Aimee Breaux 24:11
Yeah, I’m hopeful that this census inspires researchers to continue doing the work of untangling where we see racial disparities or any disparities and really map out how bias influences those disparities. And anything in that area is a step in the right direction to help direct interventions. I wanted to follow up with are there any other important findings that you you want to share, that you want to talk folks through?
Robert Dunham 24:38
We’ve talked about the arbitrariness and the errors that we see in capital punishment. I think one of the most important things in the data is what it tells us about where we’re going. When you look at it, you see that in the United States, counties were imposing more than 300 death sentences a year in the mid-1990s and executions reached almost 198 executions in 1999. And there’s been this remarkable decline since that. The database tells us a lot about the decline. You can, you can follow it based on how many states have the death penalty in any given year. We’ve been able to calculate how many counties were imposing death sentences. And we’ve gone from — in the mid-1980s, we had a year where more than 200 counties imposed the death penalty. So, now we’re down in the range of 15 or 20 counties imposing death sentences in a given year. In the mid-1990s, we had more than 50 counties that imposed multiple death sentences. And we’re now down to a point in which it’s unusual for a county to impose more than one. So, I think the database tells us a lot about about the decline in capital punishment. No executions in the northeast in more than 15 years and no northeastern state carried out an involuntary execution in 50 years. Only one state west of Texas has executed anybody in more than a decade. The numbers and the maps, I think the combination of the two of them, show us a picture of a penalty that is in not just geographic decline, but is declining in usage even where it had been used aggressively in the past. I think that this message is really important because most of that decline occurred during a time in which murder rates were also going down. We see this picture of the death penalty declining over time, and it’s at a time in which murders aren’t less horrible than they were in the 1990s. Defendants aren’t less morally culpable than they were in the 1990s. What it tells us is that the judgments that were made in the 1990s in the cases where people are now coming up for execution, those judgments are very different from what would happen today, and that the death penalty is now being carried out against individuals, who in most cases wouldn’t even be capitally prosecuted. The data over time, the data about race, the data about geography, all paint a consistent picture of a public policy that’s arbitrarily and discriminatorily employed. And I think I think that’s the key take home message from the census.
Aimee Breaux 27:27
Thank you listeners for joining us for this episode of Discussions With DPIC. As I said, the new Death Penalty Census can be found at deathpenaltyinfo.org/database/sentences. We really hope you find this new resource valuable. For more information about the death penalty, you can visit our website at deathpenaltyinfo.org. To make sure you never miss an episode of Discussions with DPIC, please subscribe in your podcast app of choice.
