A CULTURE THAT IS HARD TO DEFEND: EXTRALEGAL FACTORS IN FEDERAL DEATH PENALTY CASES.

• Author: Gould, Jon B.
• Position: The Death Penalty's Numbered Days?

Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence. Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory. This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence. Using frequentist and Bayesian methods--supplemented with expert interviews--we empirically assess the processes determining the total allocation of defense resources in federal death penalty trials at the peak of the federal death penalty--between 1998 and 2004. Our findings strongly connect extralegal factors to the lowest levels of defense resources, which in turn correlate with a higher risk of a death sentence. Far from being idiosyncratic discrepancies, these are systemic and systematic extralegal factors that stand between a defendant and his opportunity to defend against a death sentence. Ultimately, we argue for a reconceptualization of extralegal influences and the relationship between local legal culture and capital case outcomes.

TABLE OF CONTENTS I. INTRODUCTION 645 II. PREVIOUS RESEARCH ON THE DEATH PENALTY AND LOCAL LEGAL CULTURE 648 A. Federal Death Penalty 650 B. Local Legal Culture 652 III. THE FEDERAL DEATH PENALTY PROCESS 656 A. Federal Capital Defense 656 B. Disparities in Defense Resources 658 IV. DATA AND METHODS 660 A. Dependent Variable 662 B. Independent Variables 663 1. Case Facts 663 2. Local Legal Culture 665 3. Judges' Backgrounds 667 4. Defense Attorneys' Experiences 668 5. Court Performance 669 6. Defendant/Victim Demographics 669 C. Quantile Regression and the Distribution of "High-" and 670 "Low-Cost" Cases 670 D. Hypotheses for Lower-Cost Cases 671 V. ANALYSIS AND FINDINGS 673 VI. DISCUSSION 678 VII. LIMITATIONS & CONCLUSION 684 I. INTRODUCTION

The U.S. Supreme Court's 1972 ruling in Furman v. Georgia (1) and its subsequent 1976 ruling in Gregg v. Georgia (2) prompted an explosion of scholarship surrounding the death penalty, with particular emphasis on the extralegal factors observed in sentencing patterns. (3) Rather than entertaining whether capital punishment is justified in principle, empirical scholarship has focused primarily on disparities in the death penalty's practice and administration. (4) Contemporary social science research has firmly established "a pattern of evidence indicting racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision." (5) In particular, research indicates that capital defendants are more likely to receive the death penalty if, among other factors, a) the defendant is black, b) the victim is white, c) the victim is a white female, or d) the defendant is poor. (6)

Although these findings are consistent across studies, little work has been able to define and compare the effects of these four factors across jurisdictions and certainly within a federal system that is ostensibly uniform and less subject to the variation and issues observed in state-by-state death penalty systems. While race effects are more salient than geographic effects, we generally know that the risk of a death sentence is higher in some states and regions than others and that charging and sentencing patterns in capital cases vary across urban, suburban, and rural areas. (7) Existing literature has demonstrated that public support for and state-level use of the death penalty is influenced by an interaction of local crime rates and political ideology, (8) but the research has not yet been able to explain why those location effects exist or identify the driving mechanisms behind geographic disparities in capital punishment practices. Certainly, we may have intuitive or anecdotal hypotheses for these differences--why, for example, "suburban counties with lower murder rates than urban counties send more murderers to death row"--but empirical studies accounting for exactly how these location-specific differences in capital case processing operate are nascent. (9)

The present study examines a different disparity in capital litigation--the defense resources provided to indigent suspects--and in doing so expands our knowledge of location effects in the bulk of contemporary capital proceedings. We focus on federal cases at the midpoint of the modern federal death penalty and examine the role of local legal culture (10) and the subcultural elements of the courtroom workgroup (11) that lead to widely differential allocations of defense resources and which, in turn, are closely tied to disparate sentencing at trial. (12) More specifically, we advance a model of local legal culture that relies on composite variables capturing place-based punitiveness, which also reflect the socio-political climate in which federal courtroom workgroups (e.g., the judge, prosecutor, and panel defense attorney) exist.

By focusing on the federal capital process and within a common period, we are able to assess the extent to which there is arbitrariness (evidenced via the influence of extralegal variables) in what should be a standardized, nationwide adjudication process across all ninety-four federal judicial districts. Further, using defense resources as the dependent variable and incorporating multiple measures for location effects in regression analyses, we can more accurately detect the extralegal roles of culture, geography, and courtroom workgroup characteristics in capital litigation, particularly since the governing law is essentially uniform across federal district courts.

Our results suggest that a court's decision to grant defense funding in a federal capital trial turns on multiple extralegal variables reflective of local legal culture and court administration practices. With one significant exception--the type of charge filed--we find that defense resource allocations are not driven by legally relevant case facts, such as the number of defendants, offenses, or victims. (13) By contrast, our research links the level of defense resources to the a) social and political climate in which the local court exists; b) average caseload and processing speed of judges in the applicable district; and c) background of the presiding judge. Even where our research finds a correlation between defense resources and the background and experience of the defense attorney, the relationship evaporates in regression analysis. This finding, then, advances debate over the endogenous "chicken-and-egg" question of which courtroom actor most influences resource decisions--the defense attorney who requests court support or the judge who makes the decision. Inexperienced lawyers may fail to request additional (or even sufficient) defense resources, but our findings suggest that it is judges, operating within the social and political bounds corresponding to the district's local legal culture, that choose to appoint these lawyers and set the expectations and normative practices of representation in the first place.

The result is a system of federal capital litigation that limits the resources that certain suspects receive for their defense based simply on where the case is brought. Even in a unitary legal system with common rules for the provision of defense resources, systematic geographic disparities exist that rest significantly on extralegal factors. When those resource-related disparities, in turn, are strongly correlated with the likelihood of a death sentences at trial, the integrity of the federal death penalty is subject to increased doubt. (14)

In the following six sections, we present our research and discuss the implications of the findings. In the next part, Section II, we describe prior research on the death penalty, highlighting work that has found geographic differences in charging and sentencing at both the state and federal level, while also addressing the limited conceptualization of "location effects." In Section III, we provide background on federal capital litigation, including the procedures by which suspects are provided resources for their defense. We also describe prior research that sets up the question for the present inquiry. In Section IV, we describe our methodology, explaining our dataset and hypotheses. The bulk of the paper is contained within Sections V and VI, where we present the empirical findings and discuss their implications and significance. We also try our hand at expanding the notion of local legal culture, particularly as it relates to capital litigation specifically and social science methodology more broadly. In Section VII, we conclude by delineating the limits and caveats of our work and suggest avenues for additional research. Notwithstanding the significance of the federal death penalty and the troubling implications of our findings, we do not wish to overstate our claims, given the limitations and specific time period of our data.

2. PREVIOUS RESEARCH ON THE DEATH PENALTY AND LOCAL LEGAL CULTURE

   For some time now, socio-legal research has established that capital prosecutions, sentencing, and even executions vary disproportionally based on extralegal criteria. (15) Foremost among these is race, typically conditioned by socioeconomic status. (16) Perhaps the most famous study on this subject was conducted in Georgia by the late David Baldus and colleagues, which was considered by the U.S. Supreme Court in McCleskey v. Kemp. (17) Although the Court refused to halt McCleskey's execution in that case, not one of the justices in the 5-4 majority opinion contested Baldus, et al.'s finding that Georgia's capital system was more likely to charge, and then sentence to death, black defendants who killed white...