The imposition of the death penalty — from prosecution to sentencing — has become a rarity mostly confined to a very small number of counties in America.
This point about counties was highlighted by Justice Stephen Breyer — with maps — in a 2015 dissenting opinion he wrote in a death penalty challenge relating to execution drugs.
"Geography also plays an important role in determining who is sentenced to death. And that is not simply because some States permit the death penalty while others do not. Rather within a death penalty State, the imposition of the death penalty heavily depends on the county in which a defendant is tried," he wrote at the time.
Now, a project out of Harvard Law School is attempting to explain why those counties exist — and how those counties exemplify larger problems that critics of the death penalty have described regarding the punishment.
The Fair Punishment Project has begun analyzing the 16 counties that imposed five or more death sentences between 2010 and 2015 and, on Tuesday, is releasing its first of two reports on its research. "Too Broken to Fix: Part I," about half of those counties, details the common problems it has found throughout the eight counties. Those problems — as detailed and defined by the Fair Punishment Project include: overzealous prosecution, inadequate defense, racial bias and exclusion, excessive punishments, and innocence.
Notably, this county-level diminishment of the death penalty across much of the nation has happened on the front end of the death penalty process while the end of the process — the pace of executions in America — has slowed nearly to a standstill: Only one execution has taken place in the entire country since May 11.
At the other extreme, one county in Arizona — Maricopa County — had 28 death sentences imposed between 2010 and 2015.
The county, according to the Fair Punishment Project's findings, stands out for its stark examples of the problems found across the counties that most often sentence people to death. The county, which includes Phoenix, is one of the largest in the nation and is perhaps best known for its chief law enforcement officer, Sheriff Joe Arpaio. Arpaio's harsh tactics against undocumented immigrants and other groups and support for racial profiling — policies often challenged successfully in court — have kept the county's law enforcement efforts in the national news in recent years.
However, Maricopa's former county attorney, Andrew Thomas, also provided his own share of news coverage during his tenure. Although he left office to run for Arizona attorney general, unsuccessfully, his actions as county attorney — relating to abuse of his power, particularly against political opponents — eventually led to him losing his law license in the state.
Against that backdrop, the Fair Punishment Project found that Maricopa County's death penalty process exhibited extreme examples of all five of the areas examined.
After Thomas was elected in 2004, for example, the report notes that he "began pursuing capital charges at nearly twice the rate of his predecessor" — a move that created a "backlog of capital cases" that "crippled the county's public defender system," according to a New York Times report from the time.
In the wake of that effort, according to Tuesday's report, courts found during the initial appeals that there had been misconduct in more than 20% of death sentence cases in the past decade.
The report also finds that those lawyers on the other side — the defense attorneys representing those now on death row at trial in Maricopa — often spent little time on preparing to present mitigating evidence, evidence that counsels against imposing the death penalty, during the sentencing phase of the trial.
In one case highlighted in the report, the defense lawyer, Herman Alcantar, "billed just 43 hours on mitigation-related activities, and his client ultimately waived the right to put on mitigation evidence at trial." Later attorneys, however, "discovered that [the defendant] was addicted to heroin at birth, endured head injuries from being thrown down flights of stairs and beaten with a broomstick, and had both neuropsychological impairments and symptoms of fetal alcohol syndrome."
The report goes on to note that "[a] striking 70 percent" of the initial appeals heard over the past decade "involve defendants with the type of severe mitigation evidence that strongly suggests excessive punishment" — that being defendants either younger than 21 or those with intellectual impairment, brain damage, or a serious mental illness.
All of this was taking place, the report noted, in a county where the sheriff's office was determined by the Justice Department to aggressively engage in racial profiling. Between 2010 and 2015, "18 percent of the defendants from Maricopa were African-American" — three times the black population of Maricopa County.
Finally, the report notes, the county has had five people exonerated from death row in the modern death penalty era, which began when the U.S. Supreme Court ended a nationwide moratorium on executions in 1976.
Emily Bazelon, writing for the New York Times Magazine, first reported on the new project's work in a story published earlier Tuesday that will appear in the August 28 issue of the Magazine.