Appeared in Lane Nelson and Burk Foster, Death Watch: A Death Penalty Anthology, Upper Saddle River, NJ: Prentice Hall, 2001, pp. 22-31. Originally appeared in The Angolite, July/August 1994, pp. 26-31.
There are many perspectives on the death penalty. Our perspective here is that the death penalty, as it is used in the United States at the end of the 20th century, is a largely symbolic punishment--applied less-than-systematically but using the procedures of the legal system--appropriate whenever the political culture finds the act and the actor so heinous and condemnable that no other form of punishment--including a natural life prison term--satisfies the popular and political imagination.
If the crime must be an affront to whatever is left of universal human values, the offenders singled out for the death penalty, in our perspective, have by definition excluded themselves from the pale of humanity. Their lives are ordered forfeited to the state not only because of the gravity of their offenses and their own blameworthiness--for what they have done and for who they are--but also for what they represent. They are held up in public as the worst humanity has to offer. When it comes to the death penalty, as anyone knows who studies the process, many are called, but few are chosen. There is a vast pool of terrible murders--those which by their features are worse than ordinary murders among friends and relations--and even the most dedicated death penalty opponent will admit that only a handful of even the worst cases actually get the death penalty. The rest, because they have committed their crimes in states that do not use the death penalty, or in jurisdictions where the district attorney does not aggressively pursue the death penalty, or because the victim's family does not seek the death penalty, or because no one really cares about this particular victim (as is the case with many low-life homicide victims), or because of evidentiary problems, or for many other reasons, are never put on trial for their lives.
The ones who do end up going through the now familiar ritual of the first degree murder trial, post-Furman, are testing our standards of public indecency. They have demanded public scrutiny of their conduct, and in the end they have met with our most profound disapproval: they are absolutely guilty. They are given death sentences as examples to the rest of us of the absolute worst the system may do to a deserving criminal offender.
Their eventual deaths, years down the road, are intended to have salutary effects on us, by showing us that their offenses are "off limits." The result is not cause-and-effect deterrence, but rather disavowal. They have, in effect, taken the scale of equivalency into a different plane, one in which normal humane concerns do not apply. What they represent, symbolically, is the ultimate evil, a level of meanness to which only one in a million might aspire.
One in a million is the approximate odds of any American getting a death sentence in a recent year. With an estimated population of more than 250 million, the United States gave death sentences to an average of about 280 inmates each year from 1983 through 1992; the low was 1983, with 256, the high was 1986, with 311.
Of the total of 4,702 state inmates (two federal inmates are not counted here) sentenced to death in the 20 years post-Furman, only 188 have been executed. Over a third of all death-sentenced state inmates (1,697), have had their sentence or conviction overturned on appeal; 117 had their death sentence commuted; 100 died in prison, most of natural causes, and another 26 were removed for other reasons. These dispositions left a total of 2,574 inmates on Death Rows in 34 states at the end of 1992.
We ask our central question, "Who is the meanest of them all?" in looking at how the states impose death sentences. We explain our choice of the term "meanest," in this application, as being a measure of the state's response to criminal homicides. If criminals are mean, in the ways they kill their victims, then states can be equally mean, or determined to exact maximum punishment, as they seek to kill the killers in return.
The three states that we tend to think of as being the meanest, in conventional terms, are Texas, California and Florida, the three states with the largest Death Row populations--344, 332 and 312, as of December 31, 1992. Together these states housed almost a thousand of the 2,575 inmates awaiting execution.
Another way of looking at meanness is to look at who actually executes the most criminals. Here it is not much of a contest. Texas has executed 54 of the 188 persons executed post-Furman (the new era which began with the firing squad execution of Gary Gilmore in Utah in January 1977). Florida has executed 29, and Louisiana 20, through the end of 1992. Over half of the executions have occurred in just these three states, though 17 other states have executed at least one offender during the same period.
Yet another way of considering meanness is to look at the efficiency with which states dispose of their Death Row inmates. Texas has executed 54, but still has a Death Row population of 344, so its efficiency rating is only about 13.6%. California had only executed one man, with 332 others remaining on Death Row, so its efficiency rating is a paltry 0.3%. Utah has done much better, executing four with another 10 remaining, for an efficiency mark of 28.6%, and Louisiana has done even better, executing 20 and leaving 44 more on Death Row, for an efficiency rating of 31.3%. Tops in this category, though, has to be Wyoming. It executed one man in 1992, leaving no one else on Death Row (of Wyoming's other eight capital inmates over the past 20 years, one died in prison and the other seven had their sentences overturned on appeal). Wyoming thus achieves perfection, a startling efficiency rating of 100%: one execution, and Death Row is closed--until the next candidate comes along.
Given options "A," "B," and "C," then, which did we choose as the best indicator of meanness? Our answer is "D," none of the above--neither Death Row populations, nor executions, nor the efficiency of executions versus inmates remaining on Death Row.
It seemed to us, in considering the death penalty as a symbolic punishment, that it really does not matter whether the sentence is ever carried out or not. We agree that it matters to the person being executed, and his family, and to the homicide victim's family, and to some of the members of the legal system involved in the case, all of whom are often emotionally strung out by the time the execution is carried out, eight or ten years down the road.
But in terms of the death sentence as punishment for extreme evil, it's the pronouncement that matters, and not the execution itself. No matter how many people stack up on Death Row, or how many sentences state Supreme Courts overturn or governors commute, the important act is the labelling itself: the return of the death sentence verdict. In returning the death verdict, the jury (or the judge, in a few states), is telling the defendant that they are washing their hands of him: they have weighed him in the balance and found too few redeeming or mitigating factors to allow him to live. The sentence says: you deserve to die. Symbolically, what could be more conclusive? No matter what track the defendant follows afterward, this judgment of his fellow human beings stays with him for the rest of his life.
Our measure of meanness, in this paper, is the extent to which a state uses the death sentence as a response to criminal homicide.
Since the Gregg and Coker decisions of the 1970s clarified Furman and said that the death penalty is an acceptable punishment, but only for murder, practically everyone sent to Death Row has been convicted of killing another person; in the states, the crime is usually called first-degree or aggravated murder, with a list of circumstances that define the crime.
The trend in the states in recent years has been to expand the circumstances that make up first-degree or aggravated murder. Louisiana, for instance, started with four situations--murder for hire, felony murder, murder of a peace officer and murder while attempting to kill more than one person at a time. In the last ten years, Louisiana has added the murder of a child under 12, the murder of a person 65 or older, murders during drug deals, murders while engaged in Satanic rituals and drive-by shootings to the first-degree category.
Several states continue to carry non-homicide capital offenses on the books, including treason in California, Georgia and Louisiana, capital rape in Mississippi, aircraft hijacking in Georgia and train wrecking in California. Occasionally other states, refusing to take the Supreme Court as the final authority, invoke new death penalty statutes for other non-capital crimes, but these statutes have not withstood legal challenges: no one has been executed for any crime except murder in the post-Furman era.
Our thinking, then, is that the best indicator of the meanness of the intentions of the individual states, in imposing death sentences, is the proportionality of death sentences to criminal homicides. What we did, in Table 1, was to gather population, criminal homicide and death sentence statistics from all 50 states, from 1973 through 1992. We took an average population for each state for the 20-year period. We counted all the criminal homicides, which would include all forms of murder and voluntary manslaughter as tabulated in the FBI's Crime in the United States annual reports, averaged those over the 20-year period, and then calculated a 20-year homicide rate. Each state was then ranked, from highest rate to lowest rate.
Using "Capital Punishment 1992," prepared by Lawrence A. Greenfeld and James J. Stephan of the Bureau of Justice Statistics, we listed the death sentences pronounced in the states since 1973. We then divided the death sentences in each state by the number of criminal homicides in each state for the same 20-year period; this gives us our "meanness ratio," or the probability that any one homicide in this state will result in a death sentence. Finally, we ranked the states from highest to lowest meanness ratios.
What do all these statistical manipulations tell us? Several things of note. First, the 20-year homicide rates were generally higher in the South. Seven of the ten states with the highest homicide rates over this period were Southern states--Louisiana first, Texas a close second, Georgia third, Mississippi fourth, Alabama fifth, Florida sixth, Nevada seventh, New York eighth, California ninth and South Carolina tenth. All of these had homicide rates above 11 per 100,000. (As a sub-note, we would point out that five of the top six touch the Gulf of Mexico, and Georgia almost does, giving rise to a whole new set of subcultural and hydromantic hypotheses for further inquiry.)
We would note, second, that 38 of the 50 states gave at least one death sentence during this 20-year period, even if it was later invalidated or the death penalty done away with altogether, as in the case of New York. Of the top ten states in giving death sentences, ranging from Florida with 629, down through Texas with 542, to California with 478, to North Carolina with 314, to Ohio with 253, to Georgia with 234, to Oklahoma with 216, to Pennsylvania with 207, to Illinois with 201 and Alabama with 198, five (or six if you count Oklahoma) are in the South.
We would note, third, that the meanness ratio varies substantially among those states that have the death penalty on the books. The states that use the death penalty most, in proportion to the number of criminal homicides occurring, are Oklahoma (4.37 death sentences for every 100 homicides), Idaho (4.34), Nevada (3.85), Delaware (3.55), Arizona (3.40), North Carolina (2.62), Florida (2.54), Utah (2.22), Alabama (2.16) and Mississippi (1.92).
Population Homicides 20 Year Death
in millions (murder/mans.) Av. Hom. Homicide Rate Sentences Meanness Ratio
State 1973 1992 Av. 1973-1992 Per Year (per 100,000) Rank 1973-1992 DS/Homicides Rank
Alabama 3.54 4.14 3.84 9,187 459.4 11.96 5 198 .0216 9
Alaska 0.33 0.59 0.46 967 48.4 10.52 13 0 NR --
Arizona 2.08 3.83 2.96 4,823 241.2 8.15 23 164 .0340 5
Arkansas 2.03 2.40 2.22 4,120 206.0 9.28 19 62 .0150 17
California 20.64 30.87 25.76 57,202 2,860.1 11.10 9 478 .0083 28
Colorado 2.48 3.47 2.98 3,732 186.6 6.26 26 14 .0038 33
Connecticut 3.08 3.28 3.18 2,848 142.4 4.48 36 4 .0014 36
Delaware 0.57 0.69 0.63 705 35.3 5.60 31 25 .0355 4
Florida 7.75 13.49 10.62 24,771 1,238.6 11.66 6 629 .0254 7
Georgia 4.82 6.75 5.79 14,717 735.9 12.71 3 234 .0159 16
Hawaii 0.84 1.16 1.00 1,053 52.7 5.27 33 0 NR --
Idaho 0.77 1.07 0.92 690 34.5 3.75 38 30 .0434 2
Illinois 11.17 11.63 11.40 22,565 1,128.3 9.90 15 201 .0089 25
Indiana 5.30 5.66 5.48 7,518 375.9 6.86 24 76 .0101 24
Iowa 2.86 2.81 2.84 1,215 60.8 2.14 48 0 NR --
Kansas 2.27 2.52 2.40 2,578 128.9 5.37 32 0 NR --
Kentucky 3.32 3.76 3.54 6,008 300.4 8.49 20 53 .0088 26
Louisiana 3.75 4.29 4.02 12,234 611.7 15.22 1 131 .0107 23
Maine 1.04 1.24 1.14 557 27.9 2.45 47 0 NR --
Maryland 4.07 4.91 4.49 8,675 433.8 9.66 17 36 .0041 31
Massachusett5.81 6.00 5.91 4,380 219.0 3.71 39 4 .0009 37
Michigan 9.08 9.44 9.26 19,552 977.6 10.56 12 0 NR --
Minnesota 3.89 4.48 4.19 2,093 104.7 2.50 45 0 NR --
Mississippi 2.32 2.61 2.47 6,101 305.1 12.35 4 117 .0192 10
Missouri 4.77 5.20 4.99 9,308 465.4 9.33 18 104 .0112 21
Montana 0.73 0.82 0.78 651 32.6 4.18 37 13 .0015 35
Nebraska 1.53 1.61 1.57 1,064 53.2 3.39 41 20 .0188 11
Nevada 0.55 1.33 0.94 2,181 109.1 11.61 7 84 .0385 3
New Hampshir0.80 1.11 0.96 472 23.6 2.46 46 0 NR --
New Jersey 7.32 7.79 7.56 8,739 437.0 5.78 30 34 .0039 32
New Mexico 1.10 1.58 1.34 2,863 143.2 10.69 11 22 .0077 29
New York 18.21 18.12 18.17 41,563 2,078.2 11.44 8 3 .0001 38
North Caroli5.31 6.84 6.08 11,969 598.5 9.84 16 314 .0262 6
North Dakota0.63 0.64 0.64 166 8.3 1.30 50 0 NR --
Ohio 10.75 11.02 10.89 14,525 726.3 6.67 25 253 .0174 13
Oklahoma 2.66 3.21 2.94 4,939 247.0 8.40 21 216 .0437 1
Oregon 2.22 2.98 2.60 2,554 127.7 4.91 34 28 .0110 22
Pennsylvani11.85 12.00 11.93 14,077 703.9 5.90 29 207 .0147 18
Rhode Island0.97 1.01 0.99 711 35.6 3.60 40 2 .0028 34
South Caroli2.72 3.60 3.16 7,011 350.6 11.09 10 115 .0164 15
South Dakota0.68 0.71 0.70 297 14.9 2.13 49 1 .0034 19
Tennessee 4.09 5.02 4.56 9,336 466.8 10.24 14 156 .0167 14
Texas 11.83 17.66 14.75 41,414 2,070.7 14.04 2 542 .0131 20
Utah 1.15 1.81 1.48 989 49.5 3.34 42 22 .0222 8
Vermont 0.47 0.57 0.52 271 13.6 2.62 44 0 NR --
Virginia 4.85 6.38 5.62 9,278 463.9 8.25 22 80 .0086 27
Washington 3.44 5.14 4.29 4,120 206.0 4.80 35 21 .0051 30
West Virgini1.78 1.81 1.80 2,194 109.7 6.09 27 0 NR --
Wisconsin 4.54 5.01 4.78 3,102 155.1 3.24 43 0 NR --
Wyoming 0.35 0.47 0.41 495 24.8 6.05 28 9 .0182 12
These are states more geographically diverse--four, or five with Oklahoma, in the South--and generally smaller in population. Seven of the ten meanest states rank in the lower half of the states in population, with average populations of less than three million residents each, giving rise to a hint of an inverse ratio between population and meanness: can it be that victims are symbolically missed more (or offenders symbolically despised more) where there are fewer people? Other research has tended to show that victims are more important to the imposition of the death sentence than offenders are.
The states that ranked high on the meanness scale were much more likely to give death sentences than the more populous states that have much larger Death Row populations. Texas, California and Florida may think that they are tough, but Oklahoma and Idaho give three-and-a-half times as many death sentences proportionally as Texas does, over five times as many as California, and almost twice as many as Florida. If Texas gave death sentences at the same rate Oklahoma does, Texas would have 1,200 inmates on Death Row, enough for an entire prison of people awaiting execution.
We noted, fourth, that there is no strong correlation between a state's homicide rate and its meanness ratio. Only four states--Alabama, Florida, Mississippi and Nevada--made both top ten lists, and four of the five meanest states were not even in the top 20 with their homicide rates. Supporters of deterrence might proclaim that this is what they have been saying all along: kill more murderers and the murder rate will drop.
Abolition advocates could respond in kind: abolish the death penalty, and the homicide rate declines. Of the twelve states with no death sentences in our table, the homicide rate rankings were 12, 13, 27, 32, 33, 43, 44, 45, 46, 47, 48, and 50. Seven of the ten states with the lowest homicide rates thus did not even have the death penalty in their arsenal of weapons against crime.
We tend to think that both homicide rates and death sentences are culture-driven, and that neither of them has any direct bearing on the other. In one last calculation not included in the table, we noted that 412,580 criminal homicides were counted in the United States from 1973 through 1992. With 4,704 death sentences meted out in return (state and federal), this gives us a national "meanness index" of .0114, or 1.14 death sentences per 100 criminal homicides. If the criminal were rationally evaluating his chances of getting a death sentence, as he waited to pull the trigger, his odds nationally would only be about 1 in 88.
As we have established here, however, the national odds don't mean a whole lot. The criminal contemplating the murder of a convenience store clerk in Ardmore, Oklahoma, would have done much better to drive south on I-35 a few miles to Gainesville, Texas. He would have done even better to drive north instead, to Wichita, in Kansas, a state that did not make our meanness ranking because it had no death penalty at the time this article was prepared.
But criminals probably do not think that way, and citizens may not think that way either in continuing to support a punishment that is so infrequently pronounced and even less frequently carried out. The entire issue of the death penalty is in the realm of the symbolic, and Americans are apparently most willing to leave it there, even as another 300 people take up residence on Death Row this year, and almost 20,000 more become victims of criminal homicides for reasons that have nothing to do with the use or non-use of the death penalty.