Geographic arbitrariness? County court variation in capital prosecution and sentencing in Pennsylvania

• Published date: 01 November 2020
• Author: John H. Kramer,Gary Zajac,Jeffery T. Ulmer
• DOI: http://doi.org/10.1111/1745-9133.12517
• Date: 01 November 2020

DOI: ./- .

SPECIAL ISSUE ARTICLE

TACKLING DISPARITY IN THE CRIMINAL JUSTICE SYSTEM

Geographic arbitrariness? County court

variation in capital prosecution and sentencing

in Pennsylvania

Jeffery T. Ulmer Gary Zajac John H. Kramer

The Pennsylvania State University

Correspondence

JefferyT. Ulmer, Department of Sociology

andCriminology, The Pennsylvania State

University,University Park, PA.

Email:jtu@psu.edu

Thisresearch was funded by the Penn-

sylvaniaInterbranch Commission on

Gender,Racial, and Ethnic Fairness, The

FalkFoundation, and National Science

Foundation,Award # SES--.

Fundinginformation

U.S.National Science Foundation,

Grant/AwardNumber: SES--;

PennsylvaniaInterbranch Commission on

Gender,Racial, and Ethnic Fairness; The

Falk Foun datio n

Research Summary: The death penalty remains one

of the most controversial issues of criminal punishment

not only because of racial/ethnic disparities, wrong-

ful convictions, and inadequate defense representation

but also because of the potential for geographic arbi-

trariness. The key empirical proposition embedded in

the concept of geographic arbitrariness is that localities

react to legally and procedurally equal capital cases in

much different ways. This study assesses whether this

key proposition is observed. We use data on  cap-

ital murder cases, nested in  counties in Pennsylva-

nia from  to , to examine between-county dif-

ferences in (a) prosecutors’ filing of specific aggravating

circumstances, (b) prosecutors’ filings to seek the death

penalty, (c) prosecutors’ decisions to retract a death fil-

ing, and (d) court (judges’ or juries’) decisions to impose

the death penalty. First, we found that counties differed

substantially in their decisions connected to the same

statutory aggravators and murder characteristics. Sec-

ond, propensity score weighting models demonstrated

meaningful and sometimes huge differences between

specific counties in prosecutorial decisions to file to seek

the death penalty, and to retract those filings. We also

found meaningful differences in the likelihood of defen-

dants being sentenced to death across counties, although

differences were not as large as those for the prosecuto-

rial decisions. Little evidence exists that county partisan

Criminology & Public Policy. ;:–. ©  American Society of Criminology 1073wileyonlinelibrary.com/journal/capp

1074 ULMER .

composition accounts for differences between counties

in death penalty outcomes, and some limited evidence

points to county size as a factor that shapes death penalty

outcomes. Overall, however,results point to the idiosyn-

crasy of specific counties in their likelihood of exposing

and sentencing defendants to the death penalty.

Policy Implications: The remedies most connected to

this study’s findings involve local prosecutorial discre-

tion. A key suggestion would be to strengthen the nar-

rowing function that is supposed to be performed by

statutory definitions of aggravating factors. The num-

ber, breadth, and vagueness of aggravating factors give

prosecutors more expansive discretion to select cases for

exposure to the death penalty, as well as judges/juries

wider grounds to potentially impose it. This discretion,

in turn, allows for wide local variations in the interpre-

tation and application of these aggravating factors. Con-

straining this discretion would necessitate reducing the

number of aggravating factors and defining the remain-

ing ones clearly and narrowly. Another possible rem-

edy would be prosecutorial guidelines for the weighting

and use of statutory aggravating factors. The very enter-

prise of capital punishment in the United States, how-

ever, may well have geographic arbitrariness inherently

embedded in it. If so, there would be no practical way

to eliminate geographic arbitrariness short of abolishing

the death penalty.

There has been perennial legal commentary and social science research on disparity in capital

prosecution and sentencing (for early examples, see Johnson, ; Wolfgang et al., ). Most

prominently, empirical research has focused on disparity tied to the race/ethnicityof defendants

and victims (see reviews by Bowers & Pierce, ;Garland,; Paternoster, ;Ulmer&

Hanrath, ; Wolfgang & Reidel, ).Much less research has focused on differences between

local court jurisdictions in seeking and imposing the death penalty. Punishment, including the

death penalty, however, is mainly administered at the state and especially at the county level. As

noted by Garland (): “From its beginning, America’sstate has been less centralized and more

localized, less bureaucratized and more personalistic.. .than the states of other Western nations”

(p. ). This stands out most regarding the death penalty; per Garland (, p. ): “[T]he

most important decisions about capital charging and sentencing remain matters for county-level

decision makers.”

ULMER  . 1075

The death penalty remains one of the most controversial issues of criminal punishment, not

only because of racial/ethnic disparities, the possibility of executing those wrongfully convicted

(Baumgartner,DeBoef, & Boydstun, ), and problems with inadequate defense representation.

There is also the potential for what U.S. SupremeCourt Justice Stephen Breyer (in Glossip v. Gross,

) called geographic arbitrariness, or the widely uneven and disparate application of the death

penalty across jurisdictions. In fact, Justice Breyer argued in Glossip v. Gross that this increasing

rarity of the death penalty makes the issue of geographic arbitrariness even more salient. Breyer

argued that if there are fewer and fewer death sentences, and they are increasingly concentrated

in certain places, this makes any individual death sentence in part an accident of geography. Cur-

rently,  statesretain the death penalty, and  of those have governor-imposed moratoria on exe-

cutions, although not death sentences (Pennsylvania, Oregon, and California), whereas  states

do not allow it (https://deathpenaltyinfo.org/state-and-federal-info/state- by-state). The  execu-

tions in  have been carried out by only  states, with  of those executions occurring in Texas

alone.

Beyond state-by-state variation, death penalty sentences have clustered in a few counties in

the United States. In , % of death sentences came from three U.S. counties (Riverside, CA;

Clark, NV; and Maricopa, AZ). Nor is this localization of capital punishment new (Smith, ).

Only % of U.S. counties have accounted for % of death sentences since , and all inmates

on death rows as of  came from % of U.S. counties (Death Penalty Information Center,

;https://deathpenaltyinfo.org/twopercent; Smith, ). Other research has shown that the

likelihood of prosecutors seeking the death penalty, and death sentences, varies across counties

within states that retain the death penalty (e.g., Baldus et al., ; Barnes, Sloss, & Thaman, ;

Gould & Leon, ). Thus, death sentences, and exposure to them, concentrates geographically.

Thinking of this as a medical analogy, if every case of a disease were found in only a handful of

places, one would suspect that the chance of getting that disease depended very much on where

one lived and that “something” was going on in those places.

Empirical research cannot decide the value question of whether differences in the likelihood of

different death penalty outcomes constitute unjustified geographic arbitrariness. What research

can do, however,is clarify the nature and extent of local differences in death penalty decisions. The

key empirical proposition embedded in the concept of geographic arbitrariness is that localities

react to legally and procedurally comparable capital cases in much different ways. This study

assesses whether this key proposition is observed.

Between-county variation in outcomes may be due to the distribution of capital murder cases

and their various characteristics. Different county prosecutors’, judges’,and juries’ death penalty

decisions may be a result of variations in the distribution of case-level aggravating and mitigat-

ing factors, offense characteristics, evidence, and procedural factors. If controlling for such fac-

tors and characteristics renders between-county differences substantively meaningless, that is, if

counties have substantively similar likelihoods of seeking and imposing the death penalty when

we account for individual case-level factors, then it is difficult to characterize local differences

in these decisions as geographic arbitrariness. County prosecutors and courts would simply be

reacting to similar cases in similar ways, as well as to different cases in different ways. If, how-

ever,substantial differences in prosecutorial discretion and sentencing persist after controlling for

a wide range of potentially relevant individual case factors, this would indicate that different pros-

ecutors and courts react to similar cases in divergent ways. If cases with different death penalty

outcomes are highly similar but for their location, this would be consistent with the key empirical

feature of geographic arbitrariness.