Critics of capital punishment have long cited the arbitrary nature of the death penalty as a reason it should be abolished in the U.S. Who gets sentenced to death can depend on a variety of arbitrary factors, including ZIP code.
“Too Broken To Fix,” a report released earlier this month by Harvard Law School’s Fair Punishment Project, highlights 16 so-called “outlier” counties in the U.S. where defendants are disproportionately sentenced to death.
“Of the 3,143 county or county equivalents in the United States, only 16 ― or one half of one percent ― imposed five or more death sentences between 2010 and 2015,” the report states.
The study notes that the 16 counties are exceptional not just for their high rates of death penalty convictions, but also because those rates persist even as the rest of the country is trending in the other direction. Last year, fewer people were sentenced to death in the U.S. than in any year since the 1970s.
As use of the death penalty has fallen in the U.S., many of the 31 states that still have it on the books ― like Kansas and New Hampshire ― haven’t carried out an execution in 50 years or more.
What the 16 outlier counties have in common, the study found, is overzealous prosecution, inadequate defense resources and a pattern of racial bias and exclusion.
In reference to the Harvard report, Austin Sarat, who teaches law and political science at Amherst College, said that because capital punishment is growing more and more concentrated in specific areas, it requires greater precision in the way we talk about it.
“We can say, ‘In a way, the U.S. doesn’t have the death penalty ― Texas has the death penalty,’” Sarat told The Huffington Post. “But even that’s not right. Harris County has the death penalty.”
“There’s no more basic form of arbitrariness in the death penalty than geography,” he continued. “I used to advise my students that if they’re going to murder someone, they should do it in Michigan, not Ohio. If you murdered someone half a mile into Ohio, you could get the death penalty. It’s the same crime, but half a mile north [in Michigan], you’re not eligible for the death penalty.”
Six of the 16 outlier counties are in Florida and Alabama — the only two states in the country that don’t require a unanimous jury decision to give a death sentence. The remaining 10 counties are concentrated in Arizona, California, Louisiana, Nevada and Texas.
Looking at statistics from the various counties, it becomes clear that people of color and people with mental health issues are at especially high risk for death sentences. Some of these people are almost certainly innocent ― in fact, in the eight counties listed in the graphic below, there have been a combined 11 exonerations since 1976.
Even more striking is the small number of individuals behind the death sentences. According to the Fair Punishment Project’s analysis, three prosecutors in particular ― Donnie Myers in South Carolina, the late Bob Macy in Oklahoma and the late Joe Freeman Britt in North Carolina ― have been responsible for a combined 131 death sentences, the equivalent of 1 in every 25 people currently on death row.
Defendants in these outlier counties face not only overzealous prosecution but also inadequate defense. “In too many cases today, defendants are stuck with attorneys who lack the time, resources, or ability to zealously represent their clients as guaranteed by the Constitution,” the report notes. In some of the outlier counties, lawyers spend an average of less than a day on defense mitigation for clients who are ultimately sentenced to death.
“I think there has been growing recognition that the death penalty machinery in the U.S. is broken,” Sarat said. “The situation with capital punishment today is dramatically different than it was 15, 20 years ago.”
Sarat argued that the death penalty is no longer really an aspect of the U.S. justice system. Rather, he said, it’s a feature of “these isolated and rather idiosyncratic counties.”
You can read the full report here.