The Death Penalty Information Center recently released a report showing that a majority of executions in the United States since 1976 have been carried out by just 2 percent of the nation’s 3100+ counties. Among the ten most punitive counties, seven are in Texas.
Missing in DPIC’s report is an explanation for why such a small number of counties imposes such a large percentage of the nation’s death sentences. Perhaps more heinous crimes occur there. Maybe residents are more retributive; they elect prosecutors who seek the death penalty more often and fill juries that are more willing to choose the death sentence over life in prison. After all, we live in a federal, not national, legal system. Different communities are allowed to express their will through varying sentences, and the U.S. Supreme Court has ruled that the death penalty does not offend the Constitution or Bill of Rights so long as it is limited to adults and is not applied discriminately on the basis of race.
But what if the federal death penalty shows geographic disparities, and what if those differences are linked to the resources made available to capital defendants? In 2010, the Administrative Office of the U.S. Courts released a report I co-authored showing significant geographic variation in the resources provided to defendants in federal capital cases. “Resources” here mean lawyer time, investigators, and other experts, including psychologists and mitigation specialists. Although capital defendants received a median $465,000 for their defense at trial, the amounts varied by location. In federal court in Connecticut, for example, the average defendant received $1.2 million (yes, that’s a lot of money, but capital cases are expensive—in fact, the prosecution costs more), whereas the federal court in Georgia provided only $132,000 in defense resources. More troubling, those levels were linked to case outcomes. Defendants within the lowest third of case costs had twice the risk of a death sentence than others receiving greater defense support.
At the time the report was released, these findings passed through the federal judiciary without much comment. We’re used to seeing geographic disparities in the death penalty. States like Michigan and Massachusetts prohibit capital punishment, whereas Texas and Florida regularly execute defendants.
But that’s not the same in a unitary federal system, where federal statutes delineate capital-eligible crimes and a common set of standards is supposed to govern the resources made available to capital defendants. Federal judges make those calls. Why would federal judges in Georgia routinely limit defendants to one-fourth of the resources available to federal capital defendants in other jurisdictions?
Our study ruled out multiple explanations involving case facts, so it’s not the case that judges in the low cost jurisdictions are limiting funds when a defendant’s guilt is obvious. More to the point, what does it say that a defendant’s resources at trial are related to the imposition of the death penalty? Forty-four percent of the federal defendants tried in states with low cost trial defense received a death sentence, whereas only 19 percent of the federal defendants tried in other states were sentenced to death.
Even more than DPIC’s list of counties, the troubling jurisdictions are those in which resources in federal capital trials are low and defendants face a heightened risk of a death sentence. In our study, those places included federal courts in Georgia, Texas, and North Carolina.
If the Constitution is to mean anything, a federal defendant should have the same chance at a quality defense in one federal court as he does in another. Furthermore, the resources he receives at trial should not predict his sentence. The late David Baldus opened our eyes to disparate treatment in state capital sentences. Justice Powell said one of his greatest regrets was failing to recognize this pattern as a constitutional violation. Are today’s federal judges missing a constitutional problem right in their own house?
Jon Gould is a professor at American University.