Is the Modern American Death Penalty a Fatal Lottery?

Texas as a Conservative Test

Released: 27-Feb-2014 2:15 PM EST
Source Newsroom: Dick Jones Communications
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Citations Laws, January 2014

Newswise — Over 40 years after the Supreme Court found that the “harsh, freakish and arbitrary” nature of sentencing made the death penalty unconstitutional, new research suggests that the death penalty in Texas is still a fatal lottery.

In 1972’s Furman v. Georgia, the Court was presented with data indicating that 15-20 percent of death-eligible defendants were actually sentenced to death, leading Justices to conclude that the imposition of death was random and capricious – a fatal lottery. The death penalty was reinstated four years later in Gregg v. Georgia, when the Court approved new sentencing schemes intended to make the death penalty less arbitrary.

“The idea was that if we drastically narrow the death penalty – sentencing only the worst of the worst – there would be so fewer death penalty sentences that this ‘lottery’ will disappear,” says Scott Philips, associate professor of sociology and criminology at the University of Denver. “But we haven’t solved the problem at all. If anything, it’s more of a lottery now than it used to be. That’s worrisome.”

Phillips’ research estimates that 3% to 6% of those eligible to be sentenced to death in Texas between 2006 and 2010 really were. The pattern holds in the key counties that send the largest numbers of defendants to death row: Harris, Dallas, Tarrant and Bexar.

“We already know this is a problem in states such as Colorado, California and Connecticut,” says Phillips. “In a state like Colorado, for example, you know this kind of thing is going on because the statute is written in such a way that it’s hard to find a murder that’s not eligible for a death penalty sentence. But I was surprised to find that Texas is not all that different.”

Texas, he explains, provides a conservative test. In contrast to most states, the Texas statute does not include broad aggravators that substantially enlarge the pool of death-eligible defendants and, as a result, depress the death sentence rate.

Although not the focus of the research, the data also suggests that social arbitrariness remains. “Death was much more apt to be imposed on behalf of white victims and, especially, white female victims,” he says.

A common response to this problem is to call for more death sentences, but that’s not the answer, Phillips says. “The whole point of the state laws passed in the 1970s was to reduce death penalty sentencing,” he says. “For it to even work, you’d have to increase the sentencing by massive amounts. Beyond being implausible, that would increase the risk of executing innocent defendants and would do nothing to address racial disparities.”

“The only solutions appear to be abolition or restricting death-eligibility to a small number of aggravators, such as killing a police officer and killing during a rape,” he says. “The death penalty rate for those aggravators is about 40 percent.”

For now, though, Texas can be added to the list of states in which capital punishment is unconstitutional as administered, he says.

“And if the death sentence rate in Texas runs afoul of the Furman principle, then the prognosis for other states is not encouraging.”


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