In 1976, the Supreme Court found capital punishment to be constitutional with the qualification that it be fairly and consistently administered. More than 27 years later, it is clear that this goal has not been achieved. Most people are shocked to discover that the imposition of a death sentence has more to do with where the crime was committed and where the capital trial took place rather than the facts of the actual case. However, large differences do exist in how the death penalty is imposed from state to state and even from county to county.
Some states, such as Florida, have many aggravating factors that make a defendant eligible for the death penalty. Other states, such as New Hampshire, have fewer. In Maryland, felony murder - an unintentional murder that occurs in the course of a serious crime - is not a capital crime, but in New Jersey it is. In 22 states, people who commit homicides while under the age of 18 are eligible for capital punishment, but in 16 other death penalty states juveniles are ineligible for the death penalty. The federal government does not have the juvenile death penalty.
In the fall of 2002, the University of Maryland released a comprehensive report on a study that examined all the death eligible cases in Maryland from 1978 to 1999. The study documented geographic disparities in the prosecution of death cases in Maryland and concluded that prosecutorial discretion was a key factor in determining who receives the death penalty. For example, prosecutors in Baltimore County were 13 times more likely to seek the death penalty than those in Baltimore City, the state's largest city. Baltimore County was also found to be five times more likely to seek the death penalty in an eligible case than was Montgomery County, and three times more likely than was Anne Arundel County; both counties had larger murder rates than Baltimore County.
In addition to the Maryland study, the Nebraska Crime Commission found that prosecutors in the urban counties of Omaha and Lincoln were more likely to seek the death penalty and refuse plea bargains than those in the more rural counties of Nebraska. The study found that over the past 16 years, the odds were 2.4 times as great that prosecutors in a major urban county would seek the death penalty than those in a rural area.
The prevalence of geographic disparity in the death penalty has also been demonstrated in surveys conducted by The New York Times and by USA Today.
Differences in plea bargaining policies and death penalty trial decisions exist even within the same state. In its 1999 survey of capital punishment practices in the 38 death penalty states, USA Today found that suburban counties with lower murder rates than urban counties send more murderers to death row. For example, Hamilton County, Ohio, which includes Cincinnati, had 50 people on death row at the time, but prosecutors in Franklin County had sent only 11 people to death row, even though the county's population was 14 percent larger than Hamilton's and had twice as many murders.
In 1995, 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 percent 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 quality for such a prosecution, Pittsburgh's DA does so in about a forth 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 percent of the cases to capital trial, in two districts the rates were 42 and 40 percent. 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.
Geographic disparity also exists at the federal level. 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 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 183 capital recommendations.
While prosecutorial discretion is appropriate if used fairly, in the federal system, the discretion results in extreme imbalances such that people who commit the same crime will not receive the same punishment. The U.S. States Attorneys who pursue most federal death cases come from the districts located in the states that use the death penalty the most. This means that if you commit a death-eligible crime in Texas or Virginia, you are likely to get the death penalty in a federal case. But, if you did the same thing in New York or Connecticut, you would not receive a death sentence.
Of the 900 executions performed in the U.S. since the reinstatement of the death penalty, 82 percent were carried out by 10 states (AL, AR, FL, GA, LA, MO, OK, SC, TX and VA). Texas and Virginia accounted for more than half of those executions. While Texas has executed well over 300 people since 1976, twelve other death penalty states performed no, or only one, execution in that time.
Regardless of how one views capital punishment, it ought to be imposed in a manner that is fair and consistent. The fact that who receives the punishment of death is based more on where they live than what they did, demonstrates the arbitrariness of capital punishment.