Mimesis Law
15 August 2020

Justice Breyer’s Sudden Interest in the Geography of the Death Penalty

June 3, 2016 (Mimesis Law) — We might like to think that the details of who may or may not be executed is not very flexible. This is particularly so if the death penalty is viewed as meting out just desserts. What was fair yesterday is probably fair today and thus should be fair tomorrow. But that’s not the course the Court has generally charted with the Eighth Amendment. In an effort to be more European the Court has progressively narrowed the sorts of crimes and people that may be put to death.

Whether this narrowing the applicability of the death penalty is a good thing depends on your point of view. If you view all state sanctioned killing as bad, then you probably applaud the narrowing. On the other hand, if you think about how you’d feel and what you’d want if your loved one was brutally killed, then you’re probably less in favor of the narrowing.

The high water mark for death penalty abolitionists was 1972 when the Supreme Court of the United States ruled the death penalty unconstitutional in several states. It was a 5-4 per curium opinion, with nine separate opinions. Three of the five making the majority we primarily concerned with the appearance of arbitrariness regarding which defendants faced the death penalty. Justice Brennan, who was for a complete abolition, explained his concern in the following way:

But the tool of capital punishment was used with vengeance against the opposition and those unpopular with the regime. One cannot read this history without realizing that the desire for equality was reflected in the ban against “cruel and unusual punishments” contained in the Eighth Amendment.

In a Nation committed to equal protection of the laws there is no permissible “caste” aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.

In ancient Hindu, law a Brahman was exempt from capital punishment, and, under that law, “[g]enerally, in the law books, punishment increased in severity as social status diminished.” We have, I fear, taken in practice the same position, partially as a result of making the death penalty discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.

The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.

Although the Court expressed continued concern about the evolving standards of decency, the Court backed off and allowed capital punishment to resume:

As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment. * * *

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

Undaunted at the reversal of fortune, counsel for condemned inmates kept advocating for their clients, using the bits and pieces of case law they could usefully assemble. Over the next couple of decades, advocates made progress in making the court tinker with the machinery of death. Somewhere along the line, advocates figured out that you win on narrow arguments and usually only once.

A happy strategy that advanced both the individual client’s interests and narrowed the availability of capital punishment was to define a class that the client was in and argue that this class should be exempt from punishment. The plurality opinion excluding rape from capital punishment is an early example.

Also this case featured the judicial head counting, where the Court would count the number of states engaged in a particular practice, in an effort to provide an objective and mathematical venire to the justices’ decisions. Numbers no longer matter just when passing bill or deciding the majority opinion for the court; they matter for determining the constitutionality of a particular punishment scheme.

The prohibition of imposing death for rape offenses was followed by similar prohibitions some felony murder, other types of felony murder, mentally retarded (intellectually disabled) offenders, juvenile offenders, and most non-homicide offenses. And later much of this reasoning was extended to prohibit sentencing juveniles to life without parole.

Broadly speaking these groups were all fairly discrete, contained a relatively small number of offenders, and were punishments relatively rare in the states. But in the aggregate, these cases represent a significant narrowing of the availability of the death penalty. With a line of attack showing repeated success, the strategy has been modified to go for broke.

In 2011, Libeman and Clark published a paper arguing that the death penalty is applied arbitrarily because of geography. So, this has nothing to do with the type of offender or the offense; rather, it is more or less a random feature of the case. This is the crux of their argument:

More than half of the death sentences imposed nationwide over the twenty-three-year Broken System study period originated in only sixty-six, or 2%, of the nation‘s 3,143 counties, parishes and boroughs. 16% of the nation‘s counties (510 out of 3,143) accounted for 90% of its death verdicts in the period. * * *

In short, county-level data reveal something that state-level analyses do not: notwithstanding broad public and statutory support, the vast bulk of death sentences are imposed by on behalf of a small minority of Americans. A given defendant‘s likelihood of receiving a sentence of death depends greatly on the county in which he was tried.

This argument is probably what gave rise to Justice Breyer’s sudden interest in geography:

Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography.

This comes from Justice Breyer’s earlier dissent in Glossip:

At the same time, use of the death penalty has become increasingly concentrated geographically. County-by-county figures are relevant, for decisions to impose the death penalty typically take place at a county level. See supra, at 12–13. County-level sentencing figures show that, between 1973 and 1997, 66 of America’s 3,143 counties accounted for approximately 50% of all death sentences imposed.

The import of the Breyer’s argument is to abolish the death penalty because the numbers look bad. Math and numbers can be just as confounding as language, and similarly can be manipulated (often wrongly) by skilled advocates. Apparently Justice Breyer has yet to read Fooled by Randomness.

To be sure, this geographical concentration interesting observation. But it could be misleading randomness, such as seeing a pattern in so-called cancer clusters. This is especially true when the authors acknowledge that they cannot control for many of the variables. And if you’re predisposed to see the death penalty as unfair, an uncritical look at the data will confirm what you already knew.

Beyond the issue that the interesting data might be simply the product of randomness, there is the issue that the Supreme Court, in Gregg, has already said that it wants to stay out of policing charging decisions:

First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them.

Further, at the trial, the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.

The existence of these discretionary stages is not determinative of the issues before us. At each of these stages, an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense.

Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards, so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.

The way Breyer is framing it is that some prosecutors are being blood thirsty. But it is just as explainable to say that most prosecutors are being “merciful” for one reason or another.

The solutions to this supposed geographical problem is to get involved in the charging decisions, which not only has the court rejected but would be a slippery slope to getting involved in all charging decisions. Or the other solution is to abolish the death penalty, which is where Breyer landed. But the Furman experiment taught the Court anything, it that is would probably find itself out on a limb that would be sawed off behind them.

8 Comments on this post.

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  • Jay
    3 June 2016 at 10:13 am - Reply

    Getting involved in the charging decision… you mean like having a grand jury requirement for capital crimes? Gosh where have I seen something like that.

    • TMM
      3 June 2016 at 10:52 am - Reply

      Not grand jury, because a grand jury is also local and will likely reflect the same tendencies as local prosecutor and petit juries. Had a grand jury in a rural county and rarely had trouble getting an indictment if the case was strong, only had problems when the case was weak and deserved to be turned down (which was fine with us).

      If you want more “uniformity” in the charging decision, that requires some centralized panel. Of course, a centralized panel at the state level opens its own cans of worms: 1) must a prosecutor refer all homicides or just the ones in which the prosecutor wants to seek the death penalty (if the latter, the proposal does not solve the “too lenient” half of the problem); 2)what about local resources (in most states, the county pays for the prosecutor’s office which can lead to some poorer counties waiving death if they have death eligible cases); 3) how do you stop plea bargaining (must the panel approve any plea offers).

  • Bob
    3 June 2016 at 12:31 pm - Reply

    I think there is another explanation for the geographical clustering. At least in my state (which has capital punishment) the sentences are clustered (almost exclusively) in the two most populous counties. The reason for this is not so much that the most heinous crimes occur in these two counties, it is the fact that these two counties have the greatest amount of resources.

    Capital prosecution is ruinously expensive for a county with a smaller budget. Our local prosecutor almost never asks for the death penalty, because she can try 5 or 6 non-capital murder cases with the same amount of resources.

    • Richard G. Kopf
      3 June 2016 at 3:29 pm - Reply


      Your comment is important. In one small county in Nebraska, a particularly awful series of related murders (involving skinning a man alive and beating a child to death), was so costly the County seriously considered taking bankruptcy under Chapter 9.

      All the best.


      • tmm
        4 June 2016 at 6:45 pm - Reply

        In my state, if a rural county is in financial distress, the State will pick up half of the expense. The real resource problem, however, is the size of the prosecutor’s office. A rural county may have two attorneys in the office. The public defender system will assign two attorneys to a capital defendant(along with investigators, a mitigation expert, etc.) who may have a total of six active cases. Simply put, the rural prosecutor lacks the staff to devote the type of substantial resources it takes to try a capital case. If the case really, really merits the death penalty, the rural prosecutor can ask for help from the Attorney General’s Office, but the simplest solution for the rural county is to waive death in exchange for a plea to the capital offense.

  • Richard G. Kopf
    3 June 2016 at 3:43 pm - Reply


    Another incisive post. Thank you.

    I have a lot of respect for Justice Breyer. Among all the Justices, his writing is normally understandable by common folk, especially those like me.

    That said, the Court would be batshit crazy to take on the death penalty again. In the not too distant future, the cost of the death penalty will cause most states to eschew the penalty. See Bob’s comment below as an example.

    As I keep on harping, the Court, and particularly “living constitutionalists” like Justice Breyer, should remember the passive virtues articulated by Alexander Bickel all those many years ago. This is especially true if the institutional integrity of the Court is to be restored and then preserved.

    The Court should never pull the trigger to shoot down the wishes of the electorate unless it is absolutely necessary. If the Court stays out of it, the death penalty will die of natural causes ’cause most common folks will remember the value of frugality.

    All the best.

    Rich Kopf

  • stevelaudig
    26 June 2016 at 7:55 pm - Reply

    Geography? Only as it encapulates a demography.

  • Not Enough Info To Be alarmed About Geographic Sentencing Disparities
    6 September 2016 at 9:16 am - Reply

    […] concern over geographic disparities in sentencing has diffused out of the academy and then into Supreme Court opinions, first as a way to further narrow the death penalty. But here it was transmuted into a generalized […]