In 1976 the Supreme Court found capital punishment to be constitutional with the qualification that it be fairly and consistently administered. Twenty five years later it is clear that this goal has not been achieved. Large differences exist in how the death penalty is imposed from state to state and even from county to county. This has been demonstrated in studies conducted by several academic scholars over the last two decades, and by the New York Times, in 1995, and by USA Today in 1999.
Differences in plea bargaining policies and death penalty trial decisions exist even within the same state. In its survey of capital punishment practices in the 38 death penalty states USA Today found that suburban counties, although they have lower murder rates than urban counties, send more murderers to death row. Among many examples they report on San Mateo County, a suburb of San Francisco. It had 17 people on California's death row while San Francisco itself, 20% larger, and with twice as many murders, had only 4.
Three of the six men on New York's Death Row were convicted and sentenced in Suffolk County. The District Attorney in neighboring Nassau County has never sought a capital trial, and describes the capital punishment as almost never needed.
The New York Times reported that 37 of those executed in Texas were from Houston, where the District Attorney is a death penalty proponent; 5 were from Dallas, a city 2/3 as large, where the district attorney is a less committed proponent.
Of those sentenced to death in Pennsylvania, more than half come from Philadelphia county, which accounts for only 14% of the state's population. Although Philadelphia's murder rate is only about 3 times greater than that of Harrisburg, the proportion of those condemned to death is 11 times greater in Philadelphia. While Philadelphia's District Attorney asks for the death penalty in almost all cases that technically qualify for such a prosecution, Pittsburgh's DA does so in about a fourth of such cases.
In North Carolina, the unfairness of the capital punishment system was illustrated by a 1988 study that found the chances of defendants in cases with the same quality of evidence being brought to trial on a first degree murder charge depended on which judicial district processed the case. While most districts brought only 5-15% of the cases to capital trial, in two districts the rates were 42 and 40%. In the latter districts an accused was 2.8 times more likely to be tried on a capital charge than in the county with the lowest rate.
In New Jersey, a proportionality study showed that for 703 homicide cases occurring in 1982-1986, in some counties the capital trial risk was twice as high as in others.
Despite the Supreme Court's hopes of eradicating unfairness in capital prosecution there are significant differences in the capital prosecution and sentencing statutes of different states. First, state statutes differently define a capital crime. In Maryland, for instance, felony murder is a capital crime. But in New Jersey it's not. In Oklahoma a murderer can be sentenced to death if the jury finds one aggravating factor among 8. In New York the odds of death are greater, for the jury can select among ten aggravating factors. In most states a trial jury decides on a sentence of death; in Florida a judge can override a jury's sentencing recommendation.
The Supreme Court has held that the Eighth Amendment does not prohibit the death penalty for crimes committed at age 16. Eighteen states apply this holding. But 18 other states set a minimum age of 17, while 15 states and the federal government set 18 as the minimum age for sentencing a youthful offender to death.
Twenty one states permit the execution of a mentally retarded person. Only 17 states and the federal government prohibit this practice, though the criteria for definition of this condition varies among states.
The federal death penalty system also has geographic unfairness. A U.S. Department of Justice study released in September 2000 showed large geographic disparity in the number of death penalty cases U.S. attorneys submitted to the attorney general for review, and how often the U.S. attorney recommended capital prosecution in those cases. From 1995 to 2000 U.S. Attorneys recommended seeking the capital prosecution for 183 defendants. These recommendations were made by only 49 of the Nation's 94 districts. Ten of these 49 districts submitted only recommendations in favor of seeking the death penalty. They accounted for 31 of the 183 capital recommendations.
Of the more than 700 executions performed in the U.S. in the last 25 years, 82% were carried out by 10 states (AL, AR, FL, GA, LA, MO, OK, SC, TX and VA). Texas and Virginia accounted for almost half of these executions. While Texas executed 321 persons from 1976 to April 2004, twelve other death penalty states performed no, or only one execution in that time.