Wednesday, July 8, 2015

Death Penalty Capital, USA

Justice Stephen Breyer's dissent in Glossip v. Gross has received much media attention, primarily focusing on his call for a review of the constitutionality of the death penalty in America. This post will be the first of two, perhaps three discussing the dissent, some of the research cited in it and speculating about why the research shows what it does.

As part of the dissent Justice Breyer discusses the geography of the death penalty. The research Justice Breyer cites concludes a small percentage of counties in this country are responsible for virtually all death penalty sentences. This supports, according to Justice Breyer, the conclusion that the imposition of the death penalty is arbitrary and thus likely unconstitutional. Justice Breyer relies, in part, on data from the Death Penalty Information Center (DPIC):
[In] 2012, just 59 counties (fewer than 2% of counties in the country) accounted for all death sentences imposed nationwide. DPIC, The 2% Death Penalty: How A Minority of Counties Produce Most Death Cases At Enormous Costs to All 9 (Oct. 2013).
I am a 2 percenter. In other words, I live in one of the 2 percent of counties cited by Justice Breyer and the DPIC study - Brazos County, Texas. I also represent capital/death defendants. Thus I have a unique perspective on the statistics - particularly when the statistics are examined more closely.

The statistics used in the DPIC research are two and half years old. Additionally, to give the statistics proper weight, an apples to apples comparison, or as close to one as possible, is necessary. I wanted to crunch data to reach a per capita number: ranking Texas counties by the number of executions and death row inmates per 100,000 in population. By doing so, population is normed and counties are more effectively compared.

I have used death penalty statistics from Rick Halperin's website on death penalty news and updates. Halperin is Director of SMU's  Embrey Human Rights Program. I have used his statistics, current through June 18. 2015, for executions from each of the Texas counties imposing death sentences. I have used the Texas Department of Criminal Justice website for information concerning which counties account for current death row offenders. I used the Texas Department of State Health Services population and demographic estimate information for 2014. Note, I have rounded statistics for easier reading except for  population totals for Smith and Jefferson County - for reason apparent below.

Here are the top four Texas counties ranked by number of executions per 100,000 residents in the modern era (beginning in 1976), with results current through 2014:

COUNTY/STATE (County Seat)            2014 POP      EXECUTED     DEATHS PER100K/POP

1. Potter County, Texas  (Amarillo)         126,000            10                              7.9
2. Brazos County, Texas  (Bryan)         211,000           13                              6.2
3. Smith County, Texas (Tyler)                222,393           13                              5.85
4. Jefferson County, Texas (Beaumont)   257,872          15                              5.81

Some notes on the statistics. A county must have a population of at least 100,000 residents to rank. With this criteria, Navarro County, with a population of 51,000 does not qualify. However, that county has executed 6 in the modern era (including Cameron Todd Willingham). If included, Navarro would rank first with 11.8 executions per hypothetical100,000 residents.

Potter County shares the city of Amarillo with Randall County (129,000 in population) - the THD stats show Amarillo has a metro area population of over 265,000. I could have considered Randall and Potter Counties together, with both population and executions (Randall County has three), but decided against it. Therefore, Potter County's rate of executions per 100,000 residents is likely inflated.

Compare the figures above with Texas' two largest counties, Harris County, often called the "Death Penalty Capital, USA" and Dallas County:

Harris County, Texas (Houston)                4.2M               123                              2.9
Dallas County, Texas   (Dallas)                 2.4M                54                               2.3

For comparison purposes, here is how States rank for execution of their citizens per 100,000 residents (using population estimates as of July 1, 2014):

1. Oklahoma                                                  3.8M                112                         2.9
2. Texas                                                       27.0M                527                         2.0
3. Missouri                                                     6.0M                 84                          1.4
4. Virginia                                                      8.3M                110                         1.3

For the curious, here are Florida's numbers:

Florida                                                          19.8M               90                           0.45

To give this data more complete context, Potter County has one offender currently awaiting execution on Texas death row. Brazos County has four, but one of that number, Christian Olsen, had his death sentence reversed on direct appeal and is scheduled for a retrial on punishment only - death or life without possibility of parole - in October, 2015. Another Brazos County capital murder/death penalty case is slated to begin in late August 2015. More on that later. Smith County has six attributable to their county on death row. Jefferson County has one on death row.

What does this mean? Well for me, forget Harris County. Brazos County should wear the dubious distinction of "Death Penalty Capital, USA." Given the number of current Texas death row residents, the runner up, with a bullet (no pun intended), is Smith County.

My next post on this topic will consider demographics of various Texas counties where the death penalty is most highly utilized. I will also speculate about prosecutors - their death penalty decisions and how money and tax base have come to the fore in their discretion to seek death. Familiarity with Brazos County, the jury pool, and the prosecutors using that discretion for the last 25 years allow a perspective on the relationship between the numbers and these factors.

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