Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

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Jeffrey Fagan is the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School and a Professor of Epidemiology at the Mailman School of Public Health, Columbia University.

Introduction*

A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a “fatal lottery,”[1] with critical implications for its constitutionality and its future in American criminal law.[2] In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County—the state’s largest county and location of the nation’s fifth largest city—were death-eligible.[3] The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo’s appeal.[4] What the Arizona Supreme Court conceded, and what the evidence showed, was the expansive criteria for death eligibility made it impossible for states to “perform the ‘constitutionally necessary’ narrowing function at the stage of legislative definition” to prevent “a pattern of arbitrary and capricious sentencing.”[5]

Nearly fifty years ago, in Furman v. Georgia, the U.S. Supreme Court cited these same conditions as violating the Eighth Amendment’s cruel and unusual punishment clause to rule the nation’s death penalty statutes unconstitutional.[6] This overbreadth is exactly the opposite of the constitutional requirements set forth over fifty years ago in Furman[7] and four years later in Gregg,[8] seminal U.S. Supreme Court decisions that changed the landscape of capital punishment and created the architecture of the modern death penalty. These cases sought to avoid not only arbitrary but racist outcomes by narrowing capital punishment to a very small subset of cases.[9]

Following the denial by the Arizona Supreme Court but citing its acceptance of the validity of his evidentiary claim, Mr. Hidalgo turned to the U.S. Supreme Court for a review of Arizona’s capital sentencing statute. He again advanced his claim that with so many aggravating circumstances, almost every defendant convicted of first-degree murder would be eligible for the death penalty, a gross violation of Furman’s narrowing requirement and in violation of the Eighth Amendment’s cruel and unusual punishment clause.[10]

Although the Supreme Court declined to take the Hidalgo case,[11] Justice Breyer and three other Justices issued a statement calling for further analysis of whether states have complied with the narrowing requirements set forth in the two core cases of Furman and Gregg.[12] Breyer’s statement noted that “evidence of this kind warrants careful attention and evaluation.”[13] He went on to say that “capital defendants may have the opportunity to fully develop a record with the kind of empirical evidence” that can put these claims to a constitutional test.[14]

Justice Breyer’s Statement signaled that four sitting Justices shared deep concerns about whether “states perform the ‘constitutionally necessary’ narrowing function at the stage of legislative definition” to prevent “a pattern of arbitrary and capricious sentencing.”[15] The Statement went a step further, suggesting a willingness to ask whether statutes, in their operation, are constitutionally suspect, and to apply empirical evidence to address this question. The Furman questions have expanded since the resumption of executions following Gregg. What now matters is not just the statutory architecture of death eligibility—the number of aggravators—but also their scope or reach and their ability to narrow to distinguish “the few cases in which [the death penalty] is imposed from the many cases in which it is not.”[16]

Developing the fact record that Justice Breyer suggests would provide the basis for assessing the constitutionality of a death penalty statute requires a set of thorough, well-designed empirical studies of potentially death-eligible homicides spanning several decades and across several statutory contexts. Determining the breadth of Arizona’s and other states’ statutes requires analyses of the underlying facts of thousands of homicide cases to estimate the rate of death eligibility among them. Because there is no centralized repository of this information, these studies require the collection of records from multiple courthouses and law enforcement agencies, systematic encoding of the information, and analyses tailored to specific statutory eras to determine how broadly the statute operates. It is a daunting challenge, but one that a community of scholars is prepared to meet. The essays in this Symposium are a first step in that direction.

Introduction to the Symposium

This Symposium introduces new research from death sentencing states and local jurisdictions to begin the task of meeting Justice Breyer’s challenge. Researchers and legal scholars convened at Columbia Law School in October 2019 to present empirical and doctrinal scholarship that examines the extent and sources of the overbreadth of capital statutes that was shown fifty years ago in Furman. That overbreadth has re-emerged to show that the failure to narrow is endemic in many of the nation’s death sentencing statutes. These contributions illustrate several features of both statutory design and the institutional practices that replicate the conditions cited by the Furman court to produce regimes of overbreadth, arbitrariness and racial and ethnic disparities.

Professors Catherine Grosso, Barbara O’Brien, and Julie Roberts follow the blueprint designed by Anthony Amsterdam in 2007 in this law review[17] to develop a thick case study of death charging and sentencing practices in Hamilton County, Ohio.[18] The county, which includes Cincinnati, sits on the southern border of Ohio, across the Ohio River from Kentucky. Its history reflects a set of customs and social structures that span both the southern U.S. states and their industrialized northern counterparts. The authors show that over a twenty-five-year period, racial discrimination combines with diffuse statutory eligibility criteria to animate and instantiate the twin concerns of the Furman court: arbitrary death sentences that are imposed in a discriminatory pattern on African-American defendants. Drawing on a historical record and longstanding patterns of discrimination by police and courts, their analysis shows the endogeneity of capital punishment and racial bias in everyday practices in the courts, built on a racially troubled policing regime. Their explanation of the sources and extent of disparate death-seeking follows what Professor Amsterdam envisioned in his call for analyses of death penalty statutes and practices in a rich and deeply contextualized manner.

Hannah Gorman and Margot Ravenscroft, each both a litigator and advocate, remind us that Florida has been among the most aggressive death sentencing states since Furman, and also among the most controversial.[19] Its record of legislative activism created a one-way ratchet to expand death eligibility starting almost immediately after the 1972 Furman ruling. Florida’s statute includes twenty-six enumerated aggravators,[20] and it was one of the first states to create death eligibility for drug delivery in a death.[21] Florida’s patterns of death sentencing, exonerations, and Supreme Court interventions set it apart from nearly every other death sentencing state. Florida’s legislature has battled to retain its unrealistic and rigid view of intellectual disability, and delegates the narrowing function to the prosecutor, not the legislature, in a statutory design similar to the defects that Justice Breyer cited in Hidalgo.[22] Gorman and Ravenscroft reveal empirically how the extent of regional disparity, exploitation by prosecutors of the non-unanimity requirement and statutory expansiveness, and the failure to regulate juror misunderstanding of such basic elements of law as mitigation, create a picture of a de-regulated death penalty system and a dense matrix of Furman problems.

Alexis Hoag is a litigator with deep experience in the convergence of race and arbitrariness in regimes of capital punishment in the U.S. Her doctrinal contribution to the Symposium locates the overbreadth of capital punishment with its seemingly endemic racial disparity in Fourteenth Amendment equal protection doctrine.[23] She departs from the robust claims of racial bias in charging and sentencing of Black defendants, empirical claims that have been muted as constitutional bases of discrimination in the three decades since McCleskey v. Kemp[24] shut down such claims absent a smoking gun of intentional bias.[25] Hoag pivots to the robust empirical evidence of bias in charging and sentencing of killers of White victims, and the inattention by prosecutors in charging defendants of all races and ethnicities to justice for those victims.[26] This devaluation of Black life demands a constitutional remedy under Equal Protection, over and above the Eighth Amendment protections against arbitrary and capricious death sentences. This diminution of the value of life is the essence of Equal Protection law. But the rush to balance these scales without a surgical reduction in eligibility would inevitably worsen the problems of arbitrariness that infect the modern death penalty. For Hoag, abolition of the death penalty is the answer to resolve this tension and balance the values of all lives.

Professor Mona Lynch cites two constitutional flaws in California’s expansive list of “special circumstances,” or statutory aggravators.[27] First is the startling overbreadth of the California death eligibility statute.[28] If the legislature is responsible for the narrowing task proscribed by Furman,[29] then California has failed spectacularly.[30] The breadth of these eligibility factors creates an extraordinarily broad and heterogeneous defendant population. This leads directly to the second problem: the “messier” practice assigned to juries to decide whether the presence of one or more of these circumstances merits a death sentence. Lynch shows how jurors are “swamped” by these multiple indicia of death eligibility, and exerts undue influence on the jury’s sentencing decision. The breadth of these factors burdens jurors who then have to weight these expansive and standardless criteria against mitigation evidence. That jurors have a hard time understanding and applying the law, and making life or death decisions, is revealed in startling and troubling results of a unique set of empirical studies.

Professors Scott Phillips and Trent Steidley expand on Phillips’ earlier work on Texas’ “fatal lottery” to develop evidence of a “systematic lottery” where certain victim-offender killings are systematically declared death eligible, while victim-offender cases are often ignored.[31] They restate the Furman and Hidalgo claims of arbitrariness and overbreadth as two sides of the same coin: death sentencing as so rare as to be “virtually random,” and “yet death sentences are patterned by the race and gender of the victim.” Phillips and Steidley make the trenchant insight into the intersection of the Hidalgo and Furman claims: that the death penalty can be indiscriminate and discriminatory at the same time. The work takes on added importance by focusing on Texas, the most active death sentencing and execution state in the U.S. since reinstatement of capital punishment following Gregg.[32]

A critical implication of the Hidalgo litigation is its reliance on a single-county case study of Maricopa County.[33] Despite the limitations in the evidence record in Hidalgo, Justice Breyer’s statement, signed by three other Justices, suggests that a single-county case study can have constitutional weight in the jurisprudence of capital punishment. Professors Steven Shatz, Michael Pierce, and Glenn Radelet provide evidence—from the largest single-county case study to date—of systematic bias in charging and sentencing, patterns that replicate the statewide evidence in McCleskey over thirty years ago showing particular bias in cases of Black defendants killing White victims.[34] Shatz and colleagues point out that the McCleskey court was amenable to “a sufficiently large single-county study” that can reproduce the statewide findings in that case. The patterns of bias and overbreadth in San Diego County align with Professor Lynch’s showing of the potential for bias and error in the capacious death eligibility criteria in California. These discoveries, when viewed along Professor Grosso and colleagues’ showing in Hamilton County (Ohio), begin to form what Amsterdam envisioned in his original blueprint:[35] a link between social contexts and empirical analyses to show an emerging pattern of county-level constitutional as applied defects in the administration of the death penalty.[36]

Prior to the repeal of Colorado’s death penalty statute[37] in March 2020,[38] research on overbreadth and racial discrimination in charging and sentencing in the state had revealed the pattern of constitutional defects that the Furman[39] Court had warned against nearly 50 years ago.[40] The essay in this volume by Professors Sam Kamin and Justin Marceau, Hidalgo v. Arizona and Non-Narrowing Challenges,[41] reveals not only the presence of the Furman defects of capricious, arbitrary and biased death sentencing in Colorado, but the presence of the same conditions of overbreadth that plagued the Arizona statute discussed by Justice Breyer in his statement in the denial of certiorari in Hidalgo.[42] Kamin and Marceau join the Furman and Hidalgo challenges to provide a blueprint for a state-level challenge highlighting the insurmountable obstacles to resolving the defects cited in Furman and the aspirations of the Gregg[43] design to remedy those flaws. Their focus on the capacity of a death statute to narrow provides the blueprint for the future empirical work, where the fundamental empirical facts about a statute’s inability to narrow are transparent and are blended with the trial facts that draw directly on the defective statute, to provide a record that can only be denied if a court is willing to simply set aside its own constitutional foundations and precedents.

In the final essay in the Symposium, Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing, Joseph Perkovich, a capital defense attorney, revisits the Hidalgo holding in the Arizona Supreme Court[44] and the denial of certiorari by the U.S. Supreme Court.[45] He links Justice Breyer’s call for an empirical assessment of the constitutional weight of statistical evidence to the precedents set in two earlier U.S. Supreme Court precedents that perhaps should have but didn’t turn on statistical evidence: Lockhart v. McCree[46] and McCleskey v. Kemp.[47] In each case, the Court turned a blind eye to evidence that it otherwise accepted as “methodologically valid”: Lockhart on stacking the deck in jury composition with death-inclined jurors[48] and McCleskey on racial discrimination by prosecutors in their decisions to seek the death penalty.[49] Like the evidence in Hidalgo, the facts in these cases carried enormous weight in the constitutional adjudication of capital punishment, but were swept away with some animus by the Court. Perkovich calls for the reversal of the Court’s anti-science hostility toward the types of robust evidence proffered in each of these cases, asking instead for an open-minded and neutral embrace of the types of complex statistical evidence and experimentation that Justice Breyer and the other justices seek to apply in Hidalgo. His solution goes beyond the Hidalgo episode to create a place for carefully empirically crafted adjudicative facts to bear strong weight in resolving colorable constitutional claims on the death penalty. In doing so, Perkovich returns us to Professor Amsterdam’s blueprint not just on claims of race bias, but on the necessity for a rich and deep body of empirical evidence to resolve constitutional challenges to capital punishment.[50]

We are at a unique and critical moment in the future of the death penalty in the United States. Justice Breyer has opened a new path for researchers and legal scholars to assess the constitutionality of the death penalty, and to create a space for empirical facts that speak directly to the doctrinal issues in constitutional adjudication of capital punishment that have occupied the Court since well before Furman.[51] The articles in this Symposium shed light on this path, showing the critical intersection of Eighth Amendment arbitrariness and Fourteenth Amendment equal protection violations in the emerging jurisprudence of the death penalty, including the centrality of race in both constitutional defects. These studies present a new way to challenge the basic architecture of the modern death penalty, building on and merging the existing doctrines. They illustrate a paradigm for empirical constitutional research on the modern practice of capital punishment, and whether Furman’s constitutional design can cure what may be incurable flaws.


*         We thank the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University for its generous support for the Symposium. The Academy for Justice is dedicated to making non-partisan, fact-based academic research available to broad audiences with the goal of creating a criminal justice system in which actual practices reflect best practices.

[1].  Scott Phillips & Alena Simon, Is the Modern Death Penalty a Fatal Lottery? Texas as a Conservative Test, 3 Laws 85, 92 (2014) (describing the pattern of arbitrary and capricious death sentencing as a “fatal lottery”).

[2].  Petition for Certiorari, Hidalgo v. Arizona, No. 17-251, 2017 WL 3531089 at *1 (Aug. 14, 2017).

[3].  Id. Hidalgo’s defense team submitted empirical evidence showing that of the 866 first degree murder cases prosecuted in Maricopa County between 2002 and 2012, 97.8% were capital-eligible. See Cassia Spohn, Aggravating Circumstances in First-Degree Murder Cases, Maricopa County, AZ: 2002–2012 (2018), https://ccj.asu.edu/sites/default/files/death_penalty_report.pdf [https://perma.cc/3TJK-FSNL]. Two different versions of the Arizona statute, one with 10 factors and a second with 14 factors, failed to perform the constitutionally required narrowing.

[4].  State v. Hidalgo, 390 P.3d 783, 791 (Ariz. 2017) (assuming that “Hidalgo is right in his factual assertion that nearly every charged first degree murder could support at least one aggravating circumstance”).

[5].  Id. See also Hidalgo v. Arizona, 138 S. Ct. 1054, 1057 (2018) (Breyer, J., statement respecting the denial of certiorari) (quoting Zant v. Stephens, 462 U.S. 862, 878 (1983)). The Furman Court stated that narrowing was necessary to avoid a pattern of arbitrary and capricious punishments that would violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Furman v. Georgia, 408 U.S. 238, 295 (1972).

[6].  Furman, 408 U.S. at 295; see David C. Baldus, George Woodworth, Michael Laurence, Jeffrey Fagan, Catherine M. Grosso & Richard Newell, Furman at 40: Constitutional Challenges from California’s Failure to (Again) Narrow Death Eligibility, 16 J. Emp. Leg. Stud. 693 (2019).

[7].  Furman, 408 U.S.at 313 (1972) (White, J., concurring) (stating that a death-sentencing procedure is unconstitutional if it provides “no meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not.”).

[8].  428 U.S. 153, 189 (1976) (plurality opinion) (“Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”).

[9].  The Furman Court linked arbitrary patterns of sentencing with racial disparities in sentencing: “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” 408 U.S. at 242 (Douglas, J., concurring); see also Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David Baldus, George Woodworth & Richard Newell, Death by Stereotype: Race, Ethnicity and California’s Failure to Implement Furman’s Narrowing Requirement, 66 UCLA L. Rev. 1394 (2019) (finding that several of California’s aggravating circumstances are applied disparately based on the race or ethnicity of the defendant).

[10].  Petition for Certiorari, Hidalgo v. Arizona, No. 17-251, 2017 WL 3531089 at *1 (Aug. 14, 2017). Following Gregg, Arizona provided nine statutory aggravators. At the time of Hidalgo’s conviction, the Arizona statute contained 10 aggravators. By the time Mr. Hidalgo filed his petition for certiorari, Arizona had 14. Subsequently, on April 10, 2019, the Arizona Governor signed legislation that removed or significantly modified three of the statutory aggravators: (1) if the defendant created a grave risk of death to another person in addition to the person murdered; (2) if the offense was committed in a cold, calculated manner without pretense of moral or legal justification; and (3) if the defendant used a remote stun gun in the commission of the offense as defined in the statute. See Ariz. Rev. Stat. Ann. § 13-751 (2019).

[11].  Hidalgo v. Arizona, 138 S. Ct. 1054, 1054 (2018).

[12].  Id. (Breyer, J., statement respecting the denial of certiorari).

[13].  Id. at 1057.

[14].  Id.

[15].  Id.

[16].  Furman v. Georgia, 408 U.S. 238, 313 (White, J., concurring); see John Mills, How to Assess the Real World Application of a Capital Sentencing Statute: A Response to Professor Flanders’ Comment, 51 U.C. Davis L. Rev. Online 77, 80 (2017).

[17].  Anthony G. Amsterdam, Opening Remarks: Race and the Death Penalty Before and After McCleskey, 39 Colum. Hum. Rts. L. Rev. 34, 49 (2007).

[18].  Catherine M. Grosso, Barbara O’Brien & Julie C. Roberts, Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992–August 2017), 51 Colum. Hum. Rts. L. Rev. 904 (2020).

[19].  Hannah L. Gorman & Margot Ravenscroft, Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row, 51 Colum. Hum. Rts. L. Rev. 937 (2020).

[20].  Fla. Stat. § 782.04(1)(a) (2019).

[21].  Fla. Stat. §§ 782.04(3), 775.082 (2019).

[22].  Hidalgo v. Arizona, 138 S. Ct. 1054, 1057 (2018) (Breyer, J., statement respecting the denial of certiorari).

[23].  Alexis Hoag, Valuing Black Lives: A Case for Ending the Death Penalty, 51 Colum. Hum. Rts. L. Rev. 985 (2020).

[24].  McCleskey v. Kemp, 481 U.S. 279 (1987).

[25].  See Amsterdam, supra note 17, at 45–47. See, e.g. Randal Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388, 1392 (1988) (discussing in-group bias in black homicides).

[26].  Hoag is careful to locate the devaluation of Black victim lives but never loses sight of the deep and persistent bias toward Black defendants.

[27].  Mona Lynch, Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System, 51 Colum. Hum. Rts. L. Rev. 1010 (2020).

[28].  David C. Baldus et al., Furman at 40, supra note 6 (showing that over 90% of first degree murder convictions are death eligible under California’s “special circumstances.”).

[29].  Hidalgo, 138 S. Ct. at 1054 (Breyer, J., statement respecting the denial of certiorari) (“To satisfy the ‘narrowing requirement,’ a state legislature must adopt ‘statutory factors which determine death eligibility’ and thereby ‘limit the class of murderers to which the death penalty may be applied.’”).

[30].  See, e.g., Jonathan Simon & Christina Spaulding, Tokens of Our Esteem: Aggravating Factors in the Era of Deregulated Death Penalties, in The Killing State: Capital Punishment in Law, Politics, and Culture 81, 81 (Austin Sarat ed., 1999) (describing the continuous expansion of death eligibility by the California legislature for over a decade beginning with the reinstatement of the death penalty in 1977).

[31].  Scott Phillips & Trent Steidley, A Systematic Lottery: The Texas Death Penalty, 1976 to 2016, 51 Colum. Hum. Rts. L. Rev. 1043 (2020).

[32].  Gregg v. Georgia, 428 U.S. 153, 189 (1976) (plurality opinion); see Death Sentences in the United States Since 1977, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/sentencing-data/death-sentences-in-the-united-states-from-1977-by-state-and-by-year [https://perma.cc/PM3T-4RXW]; Executions Overview, Death Penalty Info. Ctr., https://deathpenalty
info.org/executions/executions-overview [https://perma.cc/3LDL-BLJ8].

[33].  The city of Phoenix in Maricopa County is the fifth most populous city in the U.S., the largest state capital, and the only state capital with a population of more than one million residents. Its land area is greater than New York, Los Angeles, or Chicago. Bernard Goth, Take That, Philly: Phoenix Reclaims the Title of 5th-Largest U.S. City, Republic (May 25, 2017), https://azc.cc/2rSz8W1 [https://perma.cc/JGP2-2JCZ].

[34].  Steven F. Shatz, Glenn L. Pierce & Michael L. Radelet, Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion, 51 Colum. Hum. Rts. L. Rev. 1072 (2020).

[35].  Amsterdam, supra note 17.

[36].  See Baldus et al., supra note 6; Grosso et al., supra note 9.

[37].  Colorado SB20-100 repealed the death penalty for all previously death-eligible crimes committed on or after July 1, 2020.

[38].  Andrew Kenney, Colorado Death Penalty Abolished, Polis Commutes Sentences of Death Row Inmates, Colorado Public Radio (Mar. 23, 2020), https://www.cpr.org/2020/03/23/polis-signs-death-penalty-repeal-commutes-sentences-of-death-row-inmates/ [https://perma.cc/B2GZ-TCS9].

[39].  Furman v. Georgia, 408 U.S. 238, 295 (1972). See Baldus et al., Furman at 40, supra note 6.

[40].  See, e.g., Meg Beardsley, Sam Kamin, Justin Marceau, & Scott Phillips, Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century, 92 Denv. L. Rev. 431 (2015). Prior to repeal, Colorado juries had not handed down any death sentences in over a decade, and the state’s last execution was in 1997. Colorado juries had not imposed any death sentences in a decade, and the state’s last execution was more than 20 years ago, in 1997. In 2013, then-Governor John Hickenlooper imposed a moratorium on executions, calling the state’s death penalty system flawed and inequitable. Colorado Becomes the 22nd State to Abolish the Death Penalty, Death Penalty Info. Ctr. (Mar. 24, 2020), https://deathpenaltyinfo.org/news/colorado-becomes-22nd-state-to-abolish-death-penalty [https://perma.cc/9MY5-GQFE].

[41].  Sam Kamin & Justin Marceau, Hidalgo v. Arizona and Non-Narrowing Challenges, 51 Colum. Hum. Rts. L. Rev. 1101 (2020).

[42].  Hidalgo v. Arizona, 138 S. Ct. 1054, 1054 (2018) (statement of Breyer, J., respecting the denial of certiorari).

[43].  Gregg v Georgia, 428 U.S. 153, 189 (1976) (plurality opinion).

[44].  State v. Hidalgo, 390 P.3d 783 (Ariz. 2017).

[45].  Hidalgo, 138 S. Ct. at 1054.

[46].  476 U.S. 162 (1986).

[47].  481 U.S. 270 (1987).

[48].  476 U.S. at 173.

[49].  McCleskey v. Kemp, 481 U.S. 279, 308 (1987).

[50].  Amsterdam, Opening Remarks: Race and the Death Penalty Before and After McCleskey, supra note 17.

[51].  Frederick Schauer & Barbara A. Spellman, Probabilistic Causation in the Law, 176 J. Institutional & Theoretical Economics 4, 13 (2020) (recognizing and arguing for a larger role of empirical evidence and counterfactual reasoning in resolving legal questions).

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

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Catherine M. Grosso is a Professor at the Michigan State University College of Law.

Barbara O’Brien is a Professor at the Michigan State University College of Law.

Julie C. Roberts is an Assistant Federal Public Defender in the Capital Habeas Unit for the Southern District of Ohio.

Anthony Amsterdam urged litigators and scholars to focus on individual prosecutors’ offices or counties and to identify “a set of local institutions, conventions, and practices which are manifestly the residues of classic Southern apartheid”; to “conduct analyses of the impact of race in the sentencing patterns . . . in those specific counties or venues”; and to “investigate, analyze, and prepare evidence of the legacy of apartheid embedded in the counties’ political, economic, and social life, particularly as it bears on law enforcement, prosecution, and courthouse customs.” The goal, Amsterdam says, is “to build a case not solely on statistical evidence of discrimination but to supplement it with evidence of anecdotes and local custom.”

Hamilton County, Ohio, lies technically just north of the South, but it is close. Its history reflects the emblematic segregation and overt racism associated with the South. This paper documents this history. It also remains in the top 2% of counties producing a majority of executions nationally. This history and ongoing use of the death penalty made it an ideal candidate for the kind of hyper-localized inquiry that Amsterdam suggested.

This article reports a study of all cases charged with aggravated murder in Hamilton County from January 1992 to August 2017, including controlled analyses on three outcome measures. The model for the prosecutor’s decision to charge a case capitally showed, after taking into account potentially relevant race-neutral factors, that a case with at least one white victim faced odds of being charged capitally that were 4.54 times the odds of a similarly situated case with no white victims. The model of the decision to impose a death sentence overall (combining the charging and sentencing decisions) found that a black defendant who killed at least one white victim faced odds of receiving a death sentence that were 3.79 times those of all other similarly situated defendants. Finally, in a model of the death sentencing decisions limited to death-specified cases (that is, the cases in which the state sought death), a black defendant with at least one white victim faced odds of receiving a death sentence that were 5.33 higher than all other cases.

These findings are both theoretically and statistically significant (p < .01). The local practice and history, bolstered by the statistical analysis, makes a strong case that race has influenced the administration of capital punishment in Hamilton County, Ohio.

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Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

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Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row

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Hannah L. Gorman is the Deputy Director of the Florida Center for Capital Representation at Florida International University School of Law.

Margot Ravenscroft is the Director of Amicus, a fair trials not-for-profit specializing in capital representation and constitutional challenges.

Florida is critical to understanding the modern application of the death penalty in the United States. It has the largest active death row. It sentences more people to death than any other state. It has the worst exoneration record and executes at a rate second only to Texas. The legislative appetite for the continued use of the death penalty has resulted in the re-writing and amending of the law with a haste that has created a state of legal chaos. Florida was the first state to pass a new statute following the finding in Furman v. Georgia that the application of the death penalty was unconstitutional. Forty years on, history repeated itself in response to the finding in Hurst v. Florida that Florida’s system of sentencing people to death was unconstitutional. In less than a year, history repeated once again when the Florida Supreme Court interpreted previous United States Supreme Court decisions by finding the requirement for jury unanimity in the penalty phase of a capital trial in Hurst v. State.

This Article examines Florida’s application of the death penalty today under its new 2016–17 statute. It highlights the dearth of empirical research into Florida’s capital charging and provides an insight into research undertaken by the authors to date. Provisional findings indicate that Florida is arbitrarily and capriciously imposing death sentences, and concludes that Furman remains relevant today in Florida. A review of 1051 first-degree murder cases, in which 347 death cases were identified, indicated significant geographical variance of the application of the death penalty across the state. The variance appears to be a product of prosecutorial discretion, whether that discretion be random and inconsistent, or discriminatory selection of cases in which to seek the death penalty. Similar patterns were identified in a review of 164 death sentences between 2006 and 2016. In addition, 126 of the death cases are resentencings as a result of Hurst retroactivity. A review of the remaining 249 cases on death row revealed the extent of the arbitrary line drawn by the Florida Supreme Court in its retroactivity decisions in Mosley v. State and Asay v. State: 75% of death row was sentenced on the basis of a non-unanimous jury recommendation, yet only 40% will have their death sentences vacated and new penalty phase trials granted. Finally, the authors reflect on the difficulties in data collection and lessons learned before proposing the next steps for future research.

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Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

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Hannah L. Gorman and Margot Ravenscroft
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Valuing Black Lives: A Case for Ending the Death Penalty

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Alexis Hoag is a Practitioner in Residence at the Eric H. Holder Jr. Initiative for Civil and Political Rights at Columbia University and a Lecturer in Law at Columbia Law School.

Since Furman v. Georgia, capital punishment jurisprudence has equipped decisionmakers with increased structure, guidance, and narrowing in death sentencing in an effort to eliminate the arbitrary imposition of death. Yet, these efforts have been largely unsuccessful given the wide discretion built into capital sentencing which allows for prejudice, bias, and racism to persist. Juries continue to sentence a disproportionately high number of defendants who have been convicted of murdering white victims to death. As a result, death sentencing schemes tend to undervalue Black murder victims’ lives. Any effort to eliminate the disparity must center on the undervaluation of Black lives.

This Article suggests that the next challenge to the death penalty should be on equal protection grounds based on the undervaluation of Black lives. It highlights that the Fourteenth Amendment was originally intended, in part, to extend the equal protection of the laws to Black victims of crime. The Article then explores the pitfalls of other race-based challenges to the death penalty. And demonstrates that a challenge based on disparities in capitally prosecuting white and Black victim cases could end capital punishment. The Article concludes with a road map for what a challenge based on the undervaluation of Black lives would look like.

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More H.R.L.R.

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row

Hannah L. Gorman and Margot Ravenscroft
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Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System

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Mona Lynch is Professor and Chair of Criminology, Law & Society and Professor (by courtesy) in the School of Law at University of California, Irvine.

Legal scholars have argued that relying solely upon the eligibility decision in capital case processing to reduce arbitrary outcomes contravenes the underlying goal articulated in Gregg v. Georgia. This Article adds to this line of scholarship by illustrating how eligibility and selection are not easily distinguished as discrete decisions when capital juries are tasked with doing both in the course of their duties. To the extent that most sentencing schemes rely upon capital juries to do both jobs—determine eligibility and make the selection decision—the consideration of aggravating evidence for the purpose of eligibility, and its use as something to be weighed in determining sentencing, is messier in practice. Specifically, the Article focuses on California’s death penalty scheme to illustrate how its overbroad eligibility criteria “bite twice,” first by failing to narrow the pool of defendants who may face the death penalty (the “eligibility decision”), and then by swamping the selection decision by exerting extraordinary influence on the jury’s sentencing decision, relative to mitigating evidence. The Article first details California’s death penalty process including its narrowing mechanism. Then the Article presents evidence from empirical research that offers insight into how death-eligible Californians understand and consider statutory aggravation (“special circumstances” in California’s statutory scheme), especially in relation to mitigating evidence. The Article concludes by outlining next steps for further research on how eligibility and selection determinations work together to produce the twin failures of California’s current death penalty machinery: a failure to narrow eligibility and a failure to ensure coherence in sentence outcomes.

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More H.R.L.R.

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row

Hannah L. Gorman and Margot Ravenscroft
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A Systematic Lottery: The Texas Death Penalty, 1976 to 2016

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Scott Phillips is a Professor in the Department of Sociology and Criminology at the University of Denver.

Trent Steidley is an Assistant Professor in the Department of Sociology and Criminology at the University of Denver.

Although the Supreme Court denied certiorari in Hidalgo v. Arizona (2018), Justice Breyer recognized that empirical research regarding the arbitrary administration of the death penalty could ultimately be used to strike down capital punishment. However, empirical research would only be efficacious if the data were more rigorous than those presented by Hidalgo. Focusing on Texas from 1976 to 2016, our research answers the call for robust data collected over a long period of time. Our findings indicate that the death penalty was rarely imposed among eligible cases—a trend that has accelerated in recent decades. However, the death penalty was considerably more likely to be imposed if the defendant killed a white female. Such patterns suggest that the modern Texas death penalty is a systematic lottery: death sentences are so rare as to be virtually random, yet death sentences are patterned by the race and gender of the victim. Defying strict logic, the Texas death penalty is indiscriminate yet discriminatory.

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More H.R.L.R.

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row

Hannah L. Gorman and Margot Ravenscroft
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Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion

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Steven F. Shatz is Professor Emeritus at the University of San Francisco School of Law.

Glenn L. Pierce is the Director of the Institute for Security and Public Policy (ISPP) and a Principal Research Scientist for the School of Criminology and Criminal Justice at Northeastern University.

Michael L. Radelet is a Professor of Sociology and Faculty Affiliate in the Institute of Behavioral Science at the University of Colorado, Boulder.

Two Supreme Court cases, Furman v. Georgia (1972) and McCleskey v. Kemp (1987) provide the framework for the study discussed in this essay, the largest single-county death penalty study. In Furman, although the issue of race discrimination in death sentencing was central to the litigation and was discussed by several of the justices, the “holding” addressed the issue only indirectly. The Court held that the discretionary death penalty schemes at issue were unconstitutional under the Eighth Amendment because death sentences were imposed so infrequently as to create too great a risk of arbitrariness. The Court’s subsequently developed remedy was to require state legislatures to “genuinely narrow” death penalty schemes and state courts to engage in “meaningful appellate review” of death sentences. In McCleskey, the Court rejected a death sentence challenge based on a statistical showing of racial discrimination in the state’s administration of the death penalty, but left open the possibility that a sufficiently large single-county study finding such racial discrimination could establish an equal protection violation. Our study of capital case charging in San Diego County, California, under California’s 1978 Death Penalty Law is just such a study. That law produced a death penalty scheme giving prosecutors the discretion to seek death in the vast majority of murder cases, resulting in a death sentence rate among death-eligible defendants even lower than that of Georgia at the time of Furman. Our study, covering a fourteen-and-ahalf-year period and using data from 1081 cases in which San Diego prosecutors charged an adult defendant with murder and obtained a homicide conviction, examines whether the race or ethnicity of defendants and/or victims affects how that broad prosecutorial discretion is used. We found that race/ethnicity is a significant factor in whether a defendant is charged capitally and whether the death penalty is sought, with the most substantial disparities occurring in cases with black defendants and white victims.

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More H.R.L.R.

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row

Hannah L. Gorman and Margot Ravenscroft
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Hidalgo v. Arizona and Non-Narrowing Challenges

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Sam Kamin is the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver’s Sturm College of Law.

Justin Marceau is a Professor of Law and the Brooks Institute Faculty Research Scholar of Animal Law and Policy at the University of Denver’s Sturm College of Law.

On March 23, 2020, Colorado repealed its death penalty statute for all crimes committed after July 1, 2020. Prior to this repeal, the two of us, along with other researchers, conducted a multi-year empirical investigation of the extent to which Colorado’s death penalty statute complied with the Eighth Amendment requirement of statutory narrowing. Litigants introduced our study in support of more than a dozen non-narrowing challenges to the Colorado statute, and we testified regarding what we believe was the failure of Colorado’s statute to do the narrowing work required by the Constitution. In this article, we build on this experience to discuss how a Hidalgo claim can best be framed in other state courts for eventual adjudication in the United States Supreme Court. Obviously, what is needed is a robust empirical study demonstrating that the discretion and arbitrariness that concerned the Furman Court remain present in a state’s modern capital punishment statute. But more than that, we discuss here how to structure lower court litigation of capital studies so as to foreground legal issues and to keep the focus on the relevant constitutional law rather than the credibility or motivations of the researchers.

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More H.R.L.R.

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row

Hannah L. Gorman and Margot Ravenscroft
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Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing

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Joseph J. Perkovich  is a founding Principal Attorney of Phillips Black, Inc., a nonprofit public interest law practice providing direct representation in capital habeas corpus litigation, and an Adjunct Associate Professor of Law at the Washington University School of Law.

In the denial of certiorari review in Hidalgo v. Arizona, 138 S. Ct. 1054 (2018), a four-Justice statement commented on the petition and the underlying litigation challenging, on the basis of empirical evidence, whether the Arizona capital sentencing statute sufficiently narrows the pool of defendants eligible to receive the death penalty. The Hidalgo Statement observes that the Arizona Supreme Court erred in its application of the Federal law and the petition raised an “important Eighth Amendment question” based on research into the operation of the sentencing statute. In declining the case, the four Justices encouraged similar future challenges and urged the development of trial court records examining any such statistical proof of alleged constitutional deficiencies.

Since the landmark decision McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court has essentially sidelined empirically developed challenges to criminal statutes. Hidalgo offers noteworthy guidance to the potential restoration, after three decades, of a former avenue for constitutional redress premised upon statistical and historical analyses.

This article addresses the present implications of the Burger and Rehnquist Courts’ foreclosure of this means to constitutional scrutiny and suggests steps to restoring the evidentiary salience of empirical proof reflecting the actual operation of the death penalty.

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More H.R.L.R.

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row

Hannah L. Gorman and Margot Ravenscroft
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Let Them Eat Paint: Childhood Lead Paint Poisoning as the Denial of Constitutional and Civil Rights

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Hope Kerpelman is a member of the Columbia Law School Class of 2020.

Over forty years ago, the United States federal government banned the use of lead-based paint in residences. Yet, tens of millions of American homes still contain lead paint today—exposing huge numbers of children to a grave risk of irreversible brain damage. While most Americans are familiar with the devastating 2014 crisis caused by lead-contaminated water in Flint, Michigan, few realize that Flint is only a small piece of a much larger lead poisoning problem. In thousands of towns across the United States today, children suffer elevated blood lead levels at even greater rates than those observed in Flint. In many cases, the cause of lead exposure for these children is not water, but paint.

A child living in a home with deteriorating lead paint can easily suffer life-long harm—just by breathing in invisible lead dust or touching lead-contaminated surfaces and later putting their hands in their mouth. Despite clear evidence of the serious consequences of lead since the early 1900s, however, the lead paint problem has festered in America’s shadows for over a century. Most recently, in the decades since the residential ban, landlords and sellers have refused to adequately test for and remove lead paint from their properties—and governments and regulatory agencies have failed to enact effective laws and enforce regulations.

Why has this crisis been allowed to continue for so long? History, empirical data, and anecdotal evidence all strongly suggest that America has ignored the issue largely because lead poisoning mainly affects low-income communities and people of color.

This Note argues that the current legal remedies used to address the lead paint epidemic are inadequate and have failed to fix a completely preventable public health crisis. In addition, it demonstrates that all of the existing approaches to lead poisoning—legislative reform, regulatory action, lawsuits sounding in common law negligence, and the use of market share liability and public nuisance doctrine—do not address the underlying issues of racial and economic discrimination that have perpetuated this problem for decades.

In order to ensure enforcement of federal and state laws, to legitimize the experiences of children who have suffered at the hands of discriminatory policies, and to garner national attention to the issue, this Note argues that advocates should expand their response to lead paint by pursuing claims under constitutional and civil rights theories. In particular, this Note analyzes how litigators can bring successful lead poisoning claims under the Fourteenth Amendment to the U.S. Constitution, the Fair Housing Act, and Title VI of the Civil Rights Act of 1964.

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More H.R.L.R.

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017)

Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row

Hannah L. Gorman and Margot Ravenscroft
See all