District Attorney Discretion in Criminal Justice System

Deadly Justice, Ch 6 Geography Reminder: Quiz opens Tuesday noon and closes Wed at 11am. February 3, 2025 Baumgartner, POLI 203, Spring 2025 1

One element of Caprice: In what county did the crime occur? The US has about 3,000 counties. Generally, there is an elected DA in each county. (Some small counties are combined.) The DA, an elected official, has AMAZING POWER. They can decide to seek death (or not), accept (or not) a plea agreement, reduce charges, drop charges. Indeed the first thing they have to do is decide which charges are filed in the first place. Was a given homicide premeditated, accidental, self-defence? Recall the Amaud Amery case. No charges were filed; later the state AG got involved, and now those three killers are in prison. But the DA was not going to file any charges at all, ruling it self defense. So that is some power! Baumgartner, POLI 203, Spring 2025 2

DA discretion examples, North Carolina Before 1976: Mandatory death sentence for eligible crimes. Before 2001, Mandatory capital prosecution. Only the Jury was allowed to exercise mercy. In 2001, this rule was relaxed, and the number of death sentences plummeted. NC was the last state in the nation to eliminate mandatory prosecution. No pleas allowed. Baumgartner, POLI 203, Spring 2025 3

DA Discretion (cont.) Orange and Durham Counties: Rare use Eve Carson (2008) Deah Barakat, Yusor Abu-Salha, Razan Abu-Salha (2015) Joe Freeman Britt, Robeson County DA 1974-1988 38 death sentences 1978, Guinness Book of World Records, Deadliest prosecutor in the world, with 23 death sentences in 28 months. He prosecuted Leon Brown and Henry McCollum and complained when they were exonerated 30 years later. Baumgartner, POLI 203, Spring 2025 4

Which jurisdictions execute? Very simple: TX Median number: 3 (in 40 years!) Baumgartner, POLI 203, Spring 2025 5

Which jurisdictions condemn? TX, FL, CA Baumgartner, POLI 203, Spring 2025 6

Which jurisdictions leave people on death row? CA Baumgartner, POLI 203, Spring 2025 7

Which jurisdictions have the highest rates of death sentencing per 100 aggravated homicides? Note low percentages, even in relatively high- use states. Baumgartner, POLI 203, Spring 2025 8

Which states execute a higher percentage of those they condemn? Note low average, about 10-15%, high variation Baumgartner, POLI 203, Spring 2025 9

Which states leave people on death row, not reversing, not executing? Baumgartner, POLI 203, Spring 2025 10

Executions by County: Very concentrated in just a few. Baumgartner, POLI 203, Spring 2025 11

Top executing counties (Note: just 23 counties have 10 or more executions ) Baumgartner, POLI 203, Spring 2025 12

The vast majority of counties have zero or 1 death sentences. A few have 100 or more. Baumgartner, POLI 203, Spring 2025 13

28 counties with 50 or more death sentences Baumgartner, POLI 203, Spring 2025 14

Homicides and executions compared. Huh? Homicides Executions Baumgartner, POLI 203, Spring 2025 15

Rates: Homicides per population, executions per homicide. Still no correspondence Homicides per 1,000 population Executions per 100 homicides Baumgartner, POLI 203, Spring 2025 16

Data from the maps compared Raw numbers Rates Baumgartner, POLI 203, Spring 2025 17

Homicides and death sentences, by state Baumgartner, POLI 203, Spring 2025 18

Lets look quickly at North Carolina Death Sentences Executions Homicides Baumgartner, POLI 203, Spring 2025 19

High users: Robeson, Forsyth, Onslow, Halifax. Low: Orange, Pitt, Durham, Guilford. Baumgartner, POLI 203, Spring 2025 20

Huge variation in use of the DP by county Robeson county DA 2014 New York Times article about the public dispute between Robeson County DA Joe Freeman Britt and his successor, Johnson Britt. The new guy calls the old guy a "bully"; the bully calls the other one a pejorative term you don't usually see in the NYTimes... Other counties see no death sentences at all. All this in the same state. Other states are similar. Baumgartner, POLI 203, Spring 2025 21

Should rates be the same? Maybe not. State by state variation not a constitutional concern. Criminal justice is a state matter, so states can regulate it as they wish. After all, some states don t even have the death penalty. Within a state: Prosecutor is elected Juries reflect values of the local community (but, death qualification) So perhaps there should be local variation. Constitutional questions: State by state: evolving standards of decency what if only 1 state executes, is that now constitutionally unusual ? Within a state: equal protection of the law . Baumgartner, POLI 203, Spring 2025 22

Quick review of two recent articles: Baumgartner, POLI 203, Spring 2025 23

A self-reinforcing death penalty system Some places just never do executions. When the next bad murder happens, was it the one that should lead to a break in tradition: so much worse than every previous murder that it calls, uniquely so far, for death? Some places have already executed 5 or 10 people (or more). When the next bad murder happens, the comparison is different, and more likely to lead to a decision to go for death again. Result: separate out into two groups Never-executors Regular executors Local variation can therefore undermine equal protection, proportionality Counter-arguments: The constitution envisions local decisions made by the community, and judges and DA s are often elected officials, sovereign in their areas and accountable to voters. Baumgartner, POLI 203, Spring 2025 24

A heart attack model of executions If you have 3 heart attacks, your heart muscle is weakened, increasing the odds of another heart attack, over and above whatever other risk factors you have. It becomes a slippery slope increased risk comes from the previous events themselves. rich get richer models: these are compared to random distribution models, and they produce different kinds of distributions: extremely skewed, like the distribution of income or wealth. We showed that for executions by county: If you have never done it, you probably never will. Baumgartner, POLI 203, Spring 2025 25

Increased odds of death sentences (left) or executions (right), based on how many you have already carried out Baumgartner, POLI 203, Spring 2025 26

Then we did another statistical model Predict the number of death sentences in a given county, in a given year, from 1976 through 2019: Things that matter: population size racial dynamics: share of population that is black; historical record of lynchings in the Jim Crow era; Things that don t matter: homicides. One other big predictor: The cumulative number of previous death sentences the county has handed down since 1976. Some counties just get into a habit! Baumgartner, POLI 203, Spring 2025 27

Racial resentment as a driver Take every state from 1972 to 2020 Count the number of death sentences imposed in each year Predict that number using: Homicides, population History of lynchings, black share of population, public opinion conservatism, public opinion on racial resentment Momentum / inertia. What matters? Public opinion, inertia, race, lynchings, racial resentment, conservative ideology. Baumgartner, POLI 203, Spring 2025 28

Racial resentment stems from historical backgrounds, continues to matter Baumgartner, POLI 203, Spring 2025 29

Is racial hostility a constitutional problem? What if you showed that what drives support for the death penalty is an implicit racial bias? At what point would someone say, no, that s unconstitutional? Is this a political issue or a legal / judicial one? Note that the US SC is extremely unlikely to give credence to such an argument Baumgartner, POLI 203, Spring 2025 30

Is the geographic concentration a constitutional problem? Does it violate your right to equal protection of the law to see that the same crime in two different places might, or might not, lead to different punishment? What if all the death sentences in the entire country came only from 5 or 10 counties? What if all the executions were in Texas? At what point would that be a constitutional problem? One thing we do know: We have not gotten there yet. Baumgartner, POLI 203, Spring 2025 31