Sentencing Class @ OSU Moritz College of Law

Statistical highlights (and queries) concerning US death penalty history

Though I spent probably too much class time Thursday referencing parts of the history of the death penalty in the United States, I do not think it is possible for students of modern sentencing law and policy to spend too much time reflecting on this history.  I encourage all students to read up on the United States' history with the death penalty from various sources, such as the full opinions in Furman or the abolitionist-oriented account provided here by the Death Penalty Information Center or this reader-friendly review of DP history in the US .

One key historical point I sought to stress in class is that, though the US Supreme Court has been very involved in death penalty regulation through interpretations of constitutional law over the past forty years, during the prior 180 years the  Supreme Court had relatively little to say on the topic.  But this reality of Supreme Court relative lac of involvement in this historical story certainly was not a result of a relative lack of use of the punishment, because according to the ESPY File of all US executions, in the United States there were:

• 13 executions in 1790, the year after the US Constitution was ratified
• 8 executions in 1804, the year after Marbury v. Madison was decided
• 39 executions in 1869 the year after the 14th Amendment was adopted
• more than 100 executions in 1906, the year after the famous "activist" Lochner decision
• more than 1500 executions during the 1930s (roughly 3 each and every week)

Notably, when the US Supreme Court during the Warren Court years started getting much more actively involved in regulating state police and prosecution practices, lower state and federal courts did start more actively reviewing state death sentences.  As a result, from 1967 to 1976, the period leading up to and around the McGautha and Furman and Gregg rulings, there were zero executions in the United States.

The Gregg ruling in 1976 is often used to mark and define the start of the "modern" death penalty era in the United States, and the chart from the DPIC reprinted above (and easier to read at this link) details that the US has been averaging more than 50 executions per year over the last two decades, with a recent one-year high of 98 executions in 1999 and a recent one-year low of 37 in 2008.  

Lots of legal and non-legal factors have had an impact on these historical data, and one would struggle to come up with any simple explanation for precisely why our nation has had a roller-coaster, up-and-down experience with executions.  Nevertheless, in addition to being factually interesting, I think there are various sentencing law and policy lessons to be taken away from this history.  I am interested to hear student insights as to these possible historical lessons: do folks think this history suggests it is inevitable that the US will always be a death penalty nation, or that this history shows that the US has and could get along without many or even any executions?

Comments on what lessons we should take away from this history, and on what else is worthy of historical note and discussion here, are highly encouraged.  Also, I encourage thoughts about whether the total number of death sentences or capital prosecutions (rather than just actual executions) would be important data in this historical story.

Racial and gender disparities in death sentencing and federal kiddie porn prosecutions

Issues of race and gender arise throughout the criminal justice system and their impact on sentencing outcomes is often a subject of great debate and controversy.  In addition to encouraging you to consider the linkages between theories of punishment and race/gender issues, over the next few classes we will explore in various ways the relationships between sentencing discretion, disparity and discrimination.

Though there is (too) much to say on all these matters, I thought it useful in this forum to encourage focused consideration of these matter in two distinct contexts: the imposition of the death penalty for murder and the federal prosecution and sentencing of child pornography offenses.  

Death Sentencing: As you may know, the death penalty is often criticized for having a racial skew, and pages here and here from the Death Penalty Information Center provide lots of data and reports on this front.  One of many statistics on these pages I find notable is that out of roughly 1250 persons executed in the US in the modern era, more than 250 black defendants have been executed for killing white victims, but only 16 white defendants have been executed for killing back victims.  

Far less frequently discussed are the apparent gender disparities in the application of the death penalty in the United States, though this page from the Death Penalty Information Center and this report from Professor Victor Streib provides coverage of this issue.  The data from these sources reveals that women account for about 10% of all murder arrests, but that women make up less than 2% of death rows (55 / 3,261) and less than 1% of those executed (12 / 1,250+). Indeed, in the last 8 years, nearly 450 men have been executed, while only 2 women have been executed (0.45%).

Federal Child Porn Prosecutions: Federal sentencing for child pornography offense is a hot topic, in part because the number of prosecutions and the length of sentences imposed for these offenses has increased dramatically over the past decade.  What is rarely discussed, however, is the disproportionate involvement of white men in these cases, especially relative to the the general federal offender population.  The latest federal data from the US Sentencing Commission is in this report which provides a detailed racial and gender breakdown for offenders in each primary federal offense category (Tables 23 and 24 at pp. 44 and 45 of the pdf).  

Roughly speaking, when immigration offenses are excluded (because 90% involve hispanic offenders), the general population of federal defendants sentenced is about 1/3 white, 1/3 black and 1/3 hispanic.  But for child porn offenses, the sentenced defendants are almost 90% white and only 3% black and 6% hispanic.  Similarly, the general population of federal defendants sentenced is about 85% male and 15% female.  But for child porn offenses, the sentenced defendants are over 99% male and less than 1% female.

Do you find these data surprising?  disturbing?  What additional information would you like to have in order to make a judgment concerning these data?