Fair and Equal Under the Law? Geography, race, and the death penalty

Just one percent of murders in the United States have resulted in a death sentence over the last decade. But are those individuals truly the “worst of the worst” – or simply those with the worst lawyers, the wrong geographic location, or the wrong skin color?
We all expect justice to be blind. Otherwise it’s not justice at all. Yet geography, poverty, and race continue to determine who lives and who dies. When the public sees this level of disparity in the death penalty, it compromises the integrity of the entire criminal justice system, sending a message that some lives are more valuable than others.
If a law is not applied fairly across racial, social and economic lines, then the law fails to protect the citizens it is meant to serve.

A Lottery of Geography
  • In Colorado, the difference between getting a death sentence and life without the possibility of parole is highly impacted by where the crime is committed. Similar murders might get life without parole in one county and death in the next county over.
  • In the last ten years, one judicial district is responsible for the overwhelming majority of death penalty cases in the state.
  • In fact, Jefferson, Arapahoe and Adams Counties pursue the death penalty at more than twice the rate of the rest of Colorado.
  • Geography plays a role across states and nationally as well. In 2007, for example, nearly three quarters of all executions took place in just three states.
Broad and Arbitrary
  • Individual prosecutors have broad discretion to decide when to seek the death penalty. Such discretion is one of the hallmarks of our nation’s legal system. But the definition of “death eligible” is so broad that there is little guidance for prosecutors to make that determination. That leaves room for other factors to seep into the decision making process, even despite a prosecutor’s best intentions.
  • Many of the nation’s most high-profile murderers or serial killers don’t get the death penalty because they have better lawyers who negotiate deals. Meanwhile poor defendants are executed for robberies “gone wrong” or other murders that were not premeditated. Accomplices have been executed in cases where the actual killer got life.
  • For example, in 2004, Ed Herrera, who admitted binding six people with duct tape and shooting them in the head while a 3-year-old girl watched was permitted to plead guilty to four counts of felony murder in exchange for four consecutive life sentences.
  • All murder is horrible. Yet the death penalty is supposed to be reserved for only the most egregious cases. In reality, human beings have differing opinions on what counts as “the worst of the worst” – making it impossible to create a human system that is objective and consistent in selecting people for death.
  • The death penalty is largely reserved for the poor. Across the country, over 90% of those facing capital charges were too poor to afford their own attorneys, even though theirs weren’t necessarily the most egregious cases.
The troubling role of race
  • Across the country, the race of the victim has a profound effect on which crimes receive the death penalty. Studies in states as diverse as California, Maryland, Ohio, and Georgia have found that people convicted of murdering a white victim were many times more likely to get sentenced to death than those who killed African Americans or Latinos.
  • More than 80% of those executed in the U.S. were convicted of killing a white person, even though African Americans are the victims in about half of all murders.
  • Based on a University of Colorado Law Review, RACE, GENDER, REGION AND DEATH SENTENCING IN COLORADO, 1980–1999 (2006), prosecutorial decisions to seek death sentences in CO significantly vary across the state and are strongly influenced by the race, ethnicity, and gender of the homicide victim.
A jury of your peers?
  • People who do not support the death penalty are excluded from serving on capital juries. The result is that large segments of the population can’t participate in the most serious cases.
  • Prosecutors have taken pains to strike black jurors in murder cases, even though the Supreme Court has expressly prohibited racially motivated strikes. A famous training tape for Philadelphia prosecutors instructed them on how to strike black jurors and get away with it. The tape’s lessons spread across the nation. During one Florida trial, a black juror was rejected for wearing “pointy New York shoes.”

Fairness in the death penalty is a moving target. Tinkering will only make the system more complex – not more fair. After 30 years, we have not found a way to make the death penalty any less arbitrary. And when a life is on the line, good luck simply isn’t good enough.