Sunday, July 12, 2015

Part II, Death Penalty Capital, USA

In my last post, Death Penalty, USA, I wrote about Justice Stephen Breyer's dissent (Justice Ginsburg joined) in Glossip v. Gross, and the statistics cited - particularly those citing 2 percent of counties in America being responsibile for the majority of death penalty sentences and resulting executions. Justice Breyer's larger point was the statistics supported an argument of arbitrariness in application that likely made the death penalty in America unconstitutional.

After reading the data, I wanted to know more about the micro-data. It is well known at the macro-level Texas has executed more, by far, than any other. But which counties that comprise Texas send their citizens to the death chamber at the highest rate per capita? What, if anything, do these counties have in common? In other words, if 2 percent of counties in the USA account for most of America's executions since 1976 ("the modern era"), then what are the common relationships for the counties in Texas that execute at the highest per capita rate?

My previous post ranked Texas counties by executions per 100,000 residents. I also included current death row inmates from those respective counties. The highest ranked county was Potter County (Amarillo), but I discounted that rank on account that Amarillo is shared by both Potter and Randall counties - the Amarillo metro area totals more than 265,000 people. Brazos, Smith, and Jefferson counties were number two, three and four, respectively, on the list of executions per 100,000 in population in Texas.

I have taken those counties and compared them by population (2014 estimates) for the 254 counties that comprise Texas. I also included the demographic breakdown by ethnicity per the Texas Department of State Health Services:

County                    Total               Anglo           Black        Hispanic        Other
1.  Harris                4, 391,445    1,318,226      795,556    1,907,830      369,833

20. Jefferson (4)         257,872      107,286         86,114        50,298         14,174
21. McLennan             242,575     135,727         35,343        63,273          8,232
22. Smith (3)               222,393     131,932         39,507        43,437          7,517
23. Brazos (2)             210,570     118,233         22,575        53,964         15,798

254. Loving                           81             59                 0               18                  4

Pretty remarkable is it not? three of the top four Texas counties that execute their citizens at the highest per capita rate fall within four population slots of one another - and all fall just inside the top 10 percent of counties by population in Texas. They are different demographically, however, with African Americans making up a much larger percentage of total population of Jefferson county than either Brazos or Smith counties.

For perspective, here are is the population trends, in aggregate for these counties by decade during the modern death penalty era, courtesy of the Texas Almanac:        

County                    1970           1980        1990               2000         2010
Jefferson:               244,773      250,938    239,397    252,051      252,273
Smith:                      97,096      128,366    151,309    174,706      209,714
Brazos:                    57,978        93,588    121,862     152,415     194,851

While Jefferson County's population has remained virtually unchanged over the forty year span from 1970-2010, Smith and Brazos counties have experienced large population growth (more than twenty percent for Smith from 2000-2010; thirty percent for Brazos over the same period).

Justice Breyer's dissent listed studies related to prosecutors and their role in seeking the death penalty. The cited research concluded stability, and power in the position as important for death penalty purposes. This is borne out in these counties. Jefferson, Smith and Brazos counties all had long term elected district attorneys. Brazos County had Bill Turner, who served thirty one years (1982-2013) as district attorney, Smith County had Jack Skeen, Jr. who serve twenty one years before becoming a Smith county district court judge in 2003, and finally, like Turner, Tom Maness stepped down as district attorney in Jefferson County at the end of 2013 after twenty seven years in office.

I was also interested in data evidencing how socially conservative each of these counties have been historically. I have lived in Brazos county for nearly 30 years, and both my parents were raised in Jefferson County. Thus, I have a good feel for these places. Texas, however, is a very socially conservative state - so saying these counties are socially conservative begs the question. Instead, the real issue is what makes these counties different for death penalty purposes.

I decided to look at political data. Understanding that voting percentages for a specific election is not necessarily indicative of how a population falls on political or social spectrum, here are the percentages and vote counts for the 2012 presidential elections in each of these counties:

County      Candidate    % Vote     Total Vote       Candidate    % Vote      Total Vote
Jefferson:     Romney(R):  48.8%        (43,214)          Obama(D):      50.4%         (44,626)
Smith:         Romney(R):  73.0%        (61,858)          Obama(D):      26.1%         (22,101)
Brazos:       Romney(R):   66.5%        (37,152)         Obama(D):       31.2 %       (17,440)

Jefferson county is the outlier politically. It was one of only 22 counties (out of a total of 254 in Texas) that went Obama in 2012. Reasons are not so important for this post, but Jefferson county's larger African American population and a relatively high (for Texas) union membership were likely big factors. Note the Smith and Brazos county percentages. Smith county had almost had three out of every four voters go Romney in 2012.

So what does all this data mean? Here are some of my conclusion based on this data and experience in Brazos county, death penalty cases there and Texas law. The stability and concomitant discretionary power of an elected district attorney to seek the death penalty is critical. In Brazos County, until 2014, that decision was ultimately made by Bill Turner. Of the 15 executions originating from Brazos County in the modern era, he played a direct role in virtually all of them. Currently Brazos county has three on death row, with a fourth housed there awaiting a new punishment trial in October, 2015 and another death penalty trial scheduled to start in August, 2015. Turner made the initial decision to seek death for all.

I cannot speak with as much knowledge about Smith and Jefferson counties. My impression is although Jack Skeen, Jr. is no longer the district attorney in Smith county, and has not been since 2003, he still wields significant influence there. Tom Maness' tenure as Jefferson County district attorney spans almost identically that of Turner. Smith and Brazos counties are both politically conservative. Brazos county's current death row census was discussed above. Smith county currently has six on death row. Jefferson county one.

What seems apparent, at least to me, is a death penalty prosecution is not necessarily dependent on the facts of the case. Instead, it requires much more. A combination of facts, a stable, powerful elected prosecutor willing to shoulder the risks of seeking the death penalty, a conservative jury pool the DA anticipates is ready to follow them in the death decision, and a county willing to bear the financial burden. This last piece is also part of the prosecutor's risk - a stable district attorney in a less urban area is more likely to be able to sell a budgeting authority on a death penalty prosecution than a new prosecutor who is not as strong as a budgeting authority quietly discouraging it.

A county's tax base and the resultant ability to finance a death penalty trial has become increasing important as death penalty prosecutions have become increasingly expensive, primarily due to investigating and litigating defendant mitigation facts. This will be a topic of another post. The question then becomes this: If a the same hypothetical capital murder occurs in Harris, Brazos, Smith and Loving counties, would each county seek the death penalty? If not, why? Different elected district attorneys? Financial risks? Conservative enough jury pools? If each of these factors result in a different decision in seeking death, are they arbitrary for constitutional purposes?

Justices Breyer and Ginsburg seem to think so.

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