An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?

• Published date: 01 December 2014
• Author: John J. Donohue
• DOI: http://doi.org/10.1111/jels.12052
• Date: 01 December 2014

An Empirical Evaluation of the

Connecticut Death Penalty System Since

1973: Are There Unlawful Racial, Gender,

and Geographic Disparities?

John J. Donohue III*

This article analyzes the 205 death-eligible murders leading to homicide convictions in

Connecticut from 1973–2007 to determine if discriminatory and arbitrary factors influenced

capital outcomes. A regression analysis controlling for an array of legitimate factors relevant

to the crime, defendant, and victim provides overwhelming evidence that minority defend-

ants who kill white victims are capitally charged at substantially higher rates than minority

defendants who kill minorities, that geography influences both capital charging and sen-

tencing decisions (with the location of a crime in Waterbury being the single most potent

influence on which death-eligible cases will lead to a sentence of death), and that the

Connecticut death penalty system has not limited its application to the worst of the worst

death-eligible defendants. The work of an expert hired by the State of Connecticut provided

emphatic, independent confirmation of these three findings, and found that women who

commit death-eligible crimes are less likely than men to be sentenced to death.

There is also strong and statistically significant evidence that minority defendants who kill

whites are more likely to end up with capital sentences than comparable cases with white

defendants. Regression estimates of the effect of both race and geography on death sen-

tencing reveal the disparities can be glaring. Considering the most common type of death-

eligible murder—a multiple-victim homicide—a white on white murder of average

egregiousness outside Waterbury has a 0.57 percent chance of being sentenced to death,

while a minority committing the identical crime on white victims in Waterbury would face a

91.2 percent likelihood. In other words, the minority defendant in Waterbury would be 160

times more likely to receive a sustained death sentence than the comparable white defend-

ant in the rest of the state.

Among the nine Connecticut defendants to receive sustained death sentences over the

study period, only Michael Ross comports with the dictates that “within the category of

capital crimes, the death penalty must be reserved for ‘the worst of the worst.’ ” For the eight

defendants on death row (after the 2005 execution of Ross), the median number of equally

or more egregious death-eligible cases that did not receive death sentences is between 35 and

46 (depending on the egregiousness measure). In light of the prospective abolition of the

Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the

*Stanford Law School and NBER; email: jjd@stanford.edu.

I am grateful for the support from Yale and Stanford Law Schools; the invaluable assistance of Peter Siegelman,

Patrick Culligan, and an array of Yale, University of Connecticut, and Stanford law students and research assistants, too

numerous to name individually, who assisted in many aspects over the nearly eight years that I have worked on this

project; and the outstanding research assistance on this paper by Vanessa Ohta.

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Journal of Empirical Legal Studies

Volume 11, Issue 4, 637–696, December 2014

637

death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime

“measurably contributes to [the goal of retribution], it ‘is nothing more than the purposeless

and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.”

Apart from Ross, the evidence suggests that the eight others residing on death row were not

measurably more culpable than the many who were not capitally sentenced. Moreover,

Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205). This rate

of death sentencing is among the lowest in the nation and more than two-thirds lower than

the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that

“freakishly rare” sentences of death are likely to be arbitrary.

The U.S Supreme Court launched the modern death penalty era with its 1972 decision in

Furman v. Georgia.1There the Court was concerned that the unchanneled discretion of

prosecutors, judges, and juries led to an arbitrary administration of the death penalty. In its

per curiam decision, the Court held “that the imposition and carrying out of the death

penalty in these cases constitute cruel and unusual punishment in violation of the Eighth

and Fourteenth Amendments.”2Many states, including Connecticut, responded to Furman

by enacting more specific death penalty statutes. Four years later, in Gregg v. Georgia,3the

Supreme Court held that “the punishment of death does not invariably violate the Consti-

tution” and indicated that statutes such as the one enacted in Connecticut were facially

constitutional.

But over time, evidence has amassed that the procedural changes adopted in the

wake of Furman have not fundamentally altered the problems that they were designed to

address. Yet despite impressive work by David Baldus and his co-authors establishing

systematic discrimination by race of victim in the administration of the Georgia death

penalty, a controversial 5-4 decision of the U.S. Supreme Court in McCleskey v. Kemp held

that this evidence does not pose a federal constitutional problem unless one can show

purposeful discrimination in a specific case.4

But while McCleskey stands as an impediment to charges of racial discrimination

under the U.S. Constitution, not all state courts have adopted a similar approach for

challenges based on state constitutional protections against racial discrimination in capital

outcomes. Five years after McCleskey, the New Jersey Supreme Court made it clear that it

would not tolerate such discrimination.

[W]ere we to believe that the race of the victim and race of the defendant played a significant part

in capital-sentencing decisions in New Jersey, we would seek corrective measures, and if that failed

1408 U.S. 238 (1972).

2Furman, 408 U.S. at 239.

3428 U.S. 153, 169 (1976).

4McCleskey v. Kemp, 481 U.S. 279, 282 (1987). Justice Powell, who wrote the majority opinion in McCleskey, later

considered his decisive vote to be an incorrect decision.

638 Donohue

we could not, consistent with our State’s policy, tolerate discrimination that threatened the

foundation of our system of law.5

Consistent with the New Jersey approach, evidence of racial disparities in the opera-

tion of the Connecticut death penalty regime was brought to the attention of the Connecti-

cut Supreme Court in 1995 by death row inmate Sedrick Cobb. Acknowledging the

potential seriousness of the claims of racial bias, the Connecticut Supreme Court mandated

a study of the administration of capital punishment in the state to determine whether the

stark racial disparities shown in the preliminary data could be explained by legitimate,

neutral reasons.6Although the summary data that were presented to the Connecticut court

were insufficient to definitively establish the presence of arbitrary or discriminatory charg-

ing and sentencing patterns, the goal of the Connecticut study was to remedy these

evidentiary shortcomings by collecting detailed, case-specific data about the crime, defend-

ant, victim, and criminal justice treatment of every death-eligible case in Connecticut from

the time of the adoption of its post-Furman statute through 2007 (when the extensive data

collection ended). This article discusses my evaluation of the operation of the Connecticut

death penalty over this period, and the results of my regression analysis of the capital

charging and sentencing decisions that occurred.7

I will also discuss some of the statistical work offered by the state’s expert during a

bench trial held on death row at Connecticut’s Northern Correctional Institution from

September through December 2012. The trial involved extensive expert testimony address-

ing whether the capital sentencing regime of the State of Connecticut has been unconsti-

tutionally marred by arbitrariness involving discrimination on the basis of race, gender, and

geography, as well as arbitrariness in failing to limit the application of the death penalty to

the worst of the worst defendants within the class of death-eligible cases. The state’s expert

conceded the gender and geographic disparities in capital outcomes as well as the fact that

both his own and my measures of the worst (most awful) cases did not explain capital

charging or overall sentencing. The state’s expert contested my finding that cases in which

minority defendants killed white victims were capitally charged and sentenced at substan-

tially higher rates.

In October 2013, the trial judge rejected the claims of the petitioners. Despite the fact

that the Connecticut Supreme Court had mandated the statistical study and a motions

judge had rejected the state’s pretrial motion to dismiss on McCleskey grounds,8the trial

judge ruled that the Connecticut constitutional claims of race discrimination were barred

5State v. Marshall, 130 N.J. 109, 209 (1992).

6The court ruled that Mr. Cobb should develop the necessary factual record in a special postappeal habeas action.

State v. Cobb, 234 Conn. 735, 762–63 (1995).

7In September 2006, I took over as the expert witness for the Connecticut death row inmates in the state court

litigation globally challenging the operation of the Connecticut death penalty regime.

8State v. Cobb, 234 Conn. 735, 762–63 (1995); In re: Claims of Racial Disparity v. Comm’r of Corr., Conn. Super, Ct

R. 9-11 (2008).

The Connecticut Death Penalty System 639