Originally appeared in The Angolite, September/October 1995, pp. 22-25.
In Gregg v. Georgia (1975), the United States Supreme Court defined a legal process to impose the death penalty in America. The process approved by the Court requires a separate sentencing hearing, after conviction of capital murder, at which aggravating and mitigating circumstances are considered. The aggravating circumstances must be prescribed by statute; the mitigating factors, as redefined in subsequent cases, can be anything the judge or jury think is relevant and important. So the process of imposing a death sentence, as it has evolved over 20 years, requires, first, proof that the defendant has committed a homicide falling within certain narrow circumstances, and, second, a much more wide-open consideration of aggravating and mitigating evidence to determine if the death penalty is the appropriate sentence.
The question I wish to take up with you today is: From the vast pool of potential death penalty cases, how do we select the few who actually end up sentenced to death? How do we get from 20,000 homicides to 300 death-sentenced inmates each year? Chart 1 traces the levels of the funnel through which offenders pass on their way to the chair--or the table, as lethal injection has replaced electrocution as the most prevalent means of execution in the United States.
In my description of the selection process, I emphasize two types of variables: those within the system, what I call "systemic variables," and those involving the intersection of the offender and the offense, what I call "crime/criminal variables."
The major systemic variables are:
1. Whether the state has a death penalty law on the books. Thirty-eight states have death penalty statutes. Six northern states, from North Dakota to Minnesota to Wisconsin to Michigan to Maine to Rhode Island, have no death penalty and have not executed anyone since at least 1930. Alaska and Hawaii have not executed anyone since statehood. Wisconsin, which has not held a legal execution since 1830, is seriously discussing a death penalty statute: some people there feel terrible that Jeffrey Dahmer had to be murdered in prison to get what he deserved. Three states, Texas, California and Florida, continue to lead the way with almost 40% of the total Death Row population, now numbering well over 3,000 inmates.
2. The breadth of the state's death penalty statute: some are very narrow, and others increasingly broader. Louisiana started with four qualifying circumstances--felony murders, multiple murders (including attempts), contract murders and killings of law enforcement officers. In recent years we have added five more: killing a child under 12, or an elderly person over 65; killings during drug deals, drive-by shootings, and killings during Satanic rituals. I must confess that I get irritated sometimes, that at age 47, my life is worth less than either a child's or an old person's. Someone who killed me would only get life, while someone who killed them might well get death on the basis of the victim's age alone.
3. The prosecutor's attitude toward death penalty cases: "the seriousness of his intentions." The prosecutor's willingness to take the time to prosecute death penalty cases, for whatever political benefits may come to him. DA John Holmes, of Harris County, Texas, who now wears the mantle of deadliest prosecutor in America, has made it clear he will go to whatever trouble necessary to prosecute those offenders he believes ought to get the death penalty. In September 1994, Holmes's office was conducting six death penalty trials at the same time, trying to stick to his promise: "I say without apology that if you murder someone here, the State of Texas is going to kill you."
4. The availability of competent defense counsel with supporting resources, including investigators, expert witnesses and supporting staff. A defense attorney with skills and resources equal to the prosecutor can make it very difficult to get a death penalty case to trial and can reduce at least a portion of the prosecutor's built-in advantage.
5. The attitude of the victim's family. Many prosecutors will not pursue a death penalty verdict if the victim's family does not want them to.
6. The cultural cross-section assembled as the jury; jurors must be willing to impose a death sentence if justified. The system plays to the jury as audience: thumbs up or down? There are sharp differences in jurors' demographics and attitudes in different locales--South vs. North, big cities vs. suburbs vs. small towns. But even in large cities like Houston, for instance, the prosecutor seems able to keep drawing from the jury pool enough death-prone jurors to keep his percentages high.
20,000 Criminal Homicides
Clearance Rate 70-75%
15,000 Homicides Cleared by Arrest
Prosecution Rate 80-85%
12,000 Homicides Prosecuted
For First-Degree Murder:
Delete:
Crimes of passion/single victim
Spontaneous disputes
Ordinary drug killings
Juvenile gang killings
Retain:
Felony murders (robbery, rape)
Multiple victims (including attempts)
Child abuse
Contract killings
Killings of police officers
10,000+ Convicted of Some Crime (65-70% of arrests)
Negligent homicide 5%
Manslaughter 30%+
Second-degree murder 30%+
First-degree murder 20%+
Other/conspiracy/attempts 10%+
5,000 Possible first-degree murder cases
1,500 First-degree murder guilty pleas
1,200 First-degree murder trials
1,100+ Trial convictions (1st, 2nd, manslaughter)
About 2,500 first-degree murder convictions total
About 250-300 Death Sentences
These are variables within the legal system itself. The other variables focus on the criminal event and the two people at its center--the victim and the offender. The most important of these crime/criminal variables are:
1. The victim's race (and class). The defendant is much more likely to get a death sentence if victim was white and middle-class. About 85% of the post-Gary Gilmore executions involve white victims. In only two instances have whites been executed for killing blacks.
2. The innocence of the victim--children and the elderly preferred. The victim's non-involvement in the circumstances leading up to the homicide are a definite plus for the prosecutor. If he or she had it coming, as in the cases of drug dealers or gang members discussed on Chart 1, it will likely not be a death penalty case.
3. The number of victims--the more victims, the more likely the offender is to get a death sentence.
4. The heinousness of the crime--unusual cruelty or depravity. If a victim was tortured or mistreated before being murdered, this perversity may well come back to haunt him when the jury is deciding his fate.
5. The criminal's prior criminal history, particularly felony convictions and prior homicides. Two-thirds of all death-sentenced inmates have prior felony convictions; 10% have a prior homicide conviction.
6. The absence of mitigating factors in the criminal's background--mental retardation, mental illness, documented history of drug or alcohol abuse, dysfunctional family history, physical or sexual abuse. The factors not only have to be there, they have to be brought out in court and explained to the jury in a way that persuades the jury members that the defendant is deserving of a mitigated sentence.
7. Clarity of the evidence pinpointing guilt. Who do we blame this one on? Strong evidence of absolute guilt will work to the defendant's disadvantage; uncertain evidence may make it impossible for anyone to get a death sentence, even if the crime seems to deserve it.
8. In cases involving multiple offenders, which one is most to blame, and is he willing to take the fall for the others? Since most people are on Death Row for felony murders, typically robbery and rape, all participants can legally be given death sentences, but many times co-participants who were less involved will be spared if one defendant acknowledges greater guilt.
9. Remorse (or the lack thereof). "He looked cold." This notion considers the defendant's demeanor after the crime, while in custody and during the trial, including what he says if he chooses to take the stand. A defendant who adamantly maintains that he didn't do it, that he is the victim of a frame-up, in the face of incontrovertible evidence to the contrary, may convince his fellow convicts that he is a real man. He will also probably convince a jury that he really belongs with the other sub-humans on Death Row.
10. Where the defendant is from. Transients don't do well in capital trials, particularly when they kill locals who are well thought of. Death Rows are full of people who were "just passing through." Of course, being a local boy is not always an asset. A bad local reputation can get a defendant a "get-even" death sentence--one in which the sentence is based more on deserved punishment for past offenses he has gotten away with than on the instant offense.
All of these variables, systemic and crime/criminal-based, combine together to influence the probability that a death sentence will be given to a particular defendant in a first-degree murder trial. In other research I have calculated what I call the "meanness ratio" (the rate of death sentences per 100 homicides) by states. This research showed that the meanest states, in their frequency of using death sentences, are not necessarily the populous states of Texas, California and Florida. In the meanness ratio, it is the states of Oklahoma, Idaho, Nevada, Delaware and Arizona that are most likely to impose death sentences for murder.
What makes some states much meaner than others (Oklahoma and Idaho are four times more likely to give a death sentence for murder than Texas and Louisiana are)? I am not yet fully prepared to say, though I think there is an inverse ratio between population and meanness. Perhaps it is "the fewer the meaner." Or the more small-town and rural the state's population (which is to say how strongly people identify with small-town values and oppose the conditions of big-city life), the greater the likelihood of a death sentence.
In explaining the selection of death-penalty offenders in America today, I can offer a difficult-to-quantify but fundamentally simple legal equation: PS x PE = PDS. In this formula for determining the likelihood of a death sentence, PS is public sentiment, PE is prosecutorial enthusiasm, and PDS is the probability of a death sentence. If public sentiment and prosecutorial enthusiasm are present to a high degree and other variables (systemic and crime/criminal) are supportive, over time there will be plenty of cases to offer a reasonable chance of getting a death penalty verdict from a sympathetic jury. Legal equations are not the same as mathematical equations: mathematical equations should always yield the same result; legal equations, even in cases of life and death, remain imprecise.