Intervention – “Can Geography Kill the Death Penalty? A Call for Increased Geographic Scholarship on the Darkest Part of the US Criminal Legal System”

Patrick Geiger (Clark University; patgeiger15@gmail.com)

Radical geographers have long been at the forefront of examining the racist and classist dimensions of America’s carceral state. The spatial perspective has provided critical insights into the politics of prison expansion (Gilmore 2007), the criminalization of homelessness (Mitchell 2003), and many more important criminal justice issues. However, on the topic of capital punishment, perhaps the worst human rights abuse regularly perpetrated by US Federal and State governments, geographers have remained largely silent (Inwood 2015). At the 2020 AAG Annual Meeting, no paper presentations mentioned the death penalty or capital punishment in their abstracts. While there are notable exceptions to the lack of geographic scholarship on the death penalty (Colucci 2019; Harries 1995), including a themed section of the journal ACME (Heynen 2015; Inwood 2015; Inwood and Barron 2015; Kobayashi 2015; Tyner and Colucci 2015), the discipline as a whole still remains disconnected from conversation about how to end capital punishment. This essay aims to bridge this gap by first briefly shedding light on the geography of the death penalty before analyzing the role that geography might play in political and legal efforts to abolish capital punishment. It ends with a call for geographers to leverage our unique perspective to research the perverse dynamics of space and place that produce such an inhumane system and to seek leverage points for ending it.

The Geography of Capital Punishment

The geography of capital punishment is incredibly uneven. When New Hampshire abolished the death penalty last year, it made it such that half of US states have either no death penalty or have a moratorium on executions. Fewer than 2% of counties in the United States are responsible for well over half of the current death-row population and over half of executions carried out since 1976 (Dieter 2013). The state of Texas alone accounts for over a third of all executions carried out since 1976, and the South in general has accounted for nearly 82% of all executions during that time frame. No state west of Texas has carried out an execution in the past five years. And data point to the death penalty becoming even more geographically concentrated over the past decade, a trend that is likely to continue as more and more states abolish the death penalty and place moratoria on executions. In other words, the death penalty is a punishment that is increasingly defined by its reduction in frequency and geographic scope. That means that capital punishment as practiced today is driven by outlier jurisdictions that butt against international, national, and sub-national trends.

Part of the reason for this uneven geography is the immense power that prosecutors have in shaping the outcomes of capital cases (Barnes et al. 2009). Prosecutors have the power to decide whether or not to pursue the death penalty. Right now, a case that results in a death sentence in Los Angeles would not even be considered for a capital trial in San Francisco. This is not because of different laws governing the two jurisdictions (states determine which crimes are eligible for the death penalty), but simply because of the different prosecutors in those counties. Prosecutors can even play a significant role in determining who gets off of death row. In Philadelphia, District Attorney Larry Krasner’s Conviction Integrity Unit has helped exonerate one former death-row prisoner and could soon help exonerate another. Were it not for Krasner’s CIU, those cases may have never received the scrutiny that such a severe punishment should warrant.

Indeed, geography plays a role in shaping nearly every part of a death penalty case, from the initial decision to pursue the death penalty to the execution, exoneration, or other outcome. Prosecutors (or defense attorneys) may try to move cases outside of their county to alter the demographics of the juror pool. The Federal government may even intervene and decide to try a case capitally, which alters the jury pool and sometimes results in a death sentence from a state that does not have the death penalty (Cohen and Smith 2010). At the appellate stage, certain appeals court judges have been found to simply rubberstamp the fact finding and evidence presented by prosecutors and police when ruling on whether or not defendants are entitled to a new trial or sentencing hearing (Steiker et al. 2017). It is no surprise that appellate courts in Texas, the state with nearly five times more executions than any other, are some of the worst with regards to rubber-stamping.

These are just a few of the procedural mechanisms that contribute to the geographic unevenness of the death penalty. The role that place and history, especially the history of racial terror and state-sanctioned violence, play in shaping the politics of death in places where the death penalty is still practiced is another huge factor that shapes the landscape of capital punishment. As the Equal Justice Initiative puts it, the death penalty is a “direct descendant of lynching”. Even the “modern” death penalty seems to more closely resemble the vigilantism of Southern lynch mobs than the supposed impartiality of a functioning criminal legal system. The cases of Walter McMillian and Rodney Reed (to name just a few) demonstrate how these perverse, racist dynamics come to the foreground in cases involving Black men in consensual relationships with white women, calling to mind what Angela Davis (1983) referred to as “the myth of the Black rapist”. Though, as Tyner and Colucci (2015) correctly point out, it is not only people of color who are cruelly executed, systemic racism in capital punishment is evident (more on this below). Rather than being applied to the worst of the worst crimes, the death penalty often appears to be applied to the most vulnerable defendants who receive the worst legal process.

Cruel and Spatially Arbitrary Punishment?

Like other aspects of the carceral state, there is a clear intersection between geography and capital punishment. The question then becomes why does this matter and how can abolitionists use this knowledge to advance their cause? To better appreciate the role that geography might play in ending the death penalty, it is important to understand the current legal status of capital punishment and the numerous attempts that have already been made to end and reform it.

In 1972, the death penalty was ruled unconstitutional by the United States Supreme Court. However, in the landmark Furman v. Georgia (408 US 238 [1972]) decision, the court was split as to why exactly that was the case. In a 5-4 decision, the court briefly concurred that the death penalty had violated the 8th and 14th amendment provisions against cruel and unusual punishment, but the five more liberal justices who ruled against capital punishment wrote separate concurring opinions, each elaborating on their own reasoning for their finding. Only two justices found that capital punishment was unconstitutional in all cases (relying on the concept of evolving standards of decency), with the other three concurring justices focusing on the arbitrariness of how the death penalty was being applied, noting racial discrimination in particular.

Furman left the future of capital punishment up in the air until 1976 when the court again took up the issue. In Gregg v. Georgia (428 US 153 [1976]) the Supreme Court gave its stamp of approval to a new death penalty process which separated the guilt phase of a trial from the sentencing phase wherein a jury would weigh aggravating and mitigating circumstances before deciding on a death or life sentence. This two-part process was supposed to reduce the arbitrariness that had made the death penalty unconstitutional.

The separation of guilt and penalty phases of capital trials did not end the arbitrariness of capital punishment. It continues to be applied disproportionately with respect to race. In particular, race of victim has been shown have a strong impact on the outcomes of death penalty trials, with the murder of a white victim being significantly more likely to result in a death sentence than the murder of a person of color (Pierce et al. 2017). In fact, there is evidence that suggests that the death penalty, as applied today, is even more discriminatory than it was in the 1970s. In each decade since capital punishment was reinstated, the percentage of death-row prisoners who are people of color has increased relative to percentage of white prisoners.

The NAACP Legal Defense Fund, who worked on the Furman case, has also attempted to kill the death penalty based on grounds of racial discrimination in the post-Furman or “modern” era. In the case of McCleskey v. Kemp (481 US 279 [1987]), the Supreme Court was presented with statistical evidence (in the form of a study of over 2,000 murder cases in Georgia known as the Baldus Study), which showed that race of victim and, to a lesser extent, the race of the defendant had a significant impact on the likelihood that a murder would result in a death sentence. The study proved systematic discrimination in Georgia’s capital punishment system which, McClesky argued, was a violation of the 8th and 14th amendments. However, despite acknowledging the validity of the Baldus Study, the court ruled that unless McClesky could prove specific incidents of discrimination in his individual case, the death penalty must stand. The McClesky ruling effectively stated that correlation could never prove causation in the eyes of the court, dashing hopes that the abundance of statistical evidence showing the racist nature of capital punishment could ever lead to its demise.

While the McClesky ruling was a blow to the effort to end capital punishment in the Federal court system, the abolitionist movement is not without hope. Individual states have continued to do away with capital punishment either through the courts or their legislatures. In fact, the continued shrinking of the geographic scope of the death penalty, may eventually amount to legally sufficient evidence that the death penalty is cruel and unusual punishment. To understand how, we have to recall the initial decision that struck down capital punishment in 1972.

In Furman, the two justices who ruled that the death penalty was unconstitutional in all cases relied on a standard known as evolving standards of decency. The standard comes from the 1958 case of Trop v. Dulles (356 US 86 [1958]) wherein the court stated that the law must “draw its meaning from the evolving standards of decency that mark the progress of a maturing society”. It is a standard that has already been used to narrow the scope of capital punishment. Justices cited the standard in ending the death penalty for non-murderers (Enmund v. Florida 458 US 782 [1982]), juveniles (Roper v. Simmons 543 US 551 [2005]), and for the intellectually disabled (Atkins v. Virginia 536 US 304 [2002]) just to name a few. The “standards” that courts rely on in these cases are not relative moral standards, but measurable and more-or-less objective ones including existing state legislation, trends in sentencing, and expert views (American Bar Association 2004). Justice Breyer, in his dissent in Glossip v. Gross (576 US __ [2015]), laid out the legal reasoning why the evolving standards of decency framework could and perhaps should look at sub-state level trends as well. Drawing on some the data mentioned in the above section, Breyer notes “within a death penalty State, the imposition of the death penalty heavily depends on the county in which a defendant is tried”. Therefore, with every state that abolishes the death penalty, with every execution that is stayed, and with every prosecutor that disavows capital punishment, abolitionists inch closer to creating a legal geography wherein the death penalty simply cannot stand up to constitutional scrutiny.

As Parker (2013) notes, a key question remains of exactly how many states must abolish the death penalty for the Supreme Court to take notice. Given the current makeup of the Court, the frustrating reality is that seemingly no amount of empirical data or evidence of the inhumanity of capital punishment will lead to the judicial abolition of the death penalty. However, the legal groundwork has been laid for a more liberal court to abolish the death penalty, and the case can be strengthened through further research and activism at the state and county level.

Where Geographers Can Contribute

In general, the death penalty is not an under-researched subject. As one might expect, the literature on the topic is dominated by political scientists, sociologists, and lawyers. Yet even though geography is so inherent to understanding different aspects of capital punishment, geographers have largely remained absent from the scholarly discussion on it. There are a number of areas where a critical spatial perspective could add tremendous insight to efforts to better understand and eventually end the death penalty.

To begin, there is a breadth of statistical analyses that have shown the arbitrary and racist nature of capital punishment (Baumgartner et al. 2017; Garrett 2017; Liebman et al. 2000). Many of these analyses use mapping techniques already. Spatial analysts could enter into this conversation bringing cutting edge techniques to model and analyze the relationships between death sentences and crime over-time. This would be especially useful in determining how ineffective the death penalty has been in deterring crime in specific areas as well as in identifying jurisdictions where the death penalty is being used disproportionately by aggressive prosecutors.

Furthermore, place plays a key role capital punishment. This is evident not only in myriad data showing the geographic arbitrariness of the death penalty but also in the ways in which death penalty cases maneuver along a variety of scales ranging from the hyper-local (individual jurors or victims’ families) to the international (human rights groups, international law, etc.). Since place is so fundamental to the way the death penalty is carried out, place will also be fundamental in stopping the death penalty. The above section laid out the legal importance of place in capital punishment, but outside of the courts, scholars and activists can intervene across a variety of arenas to stop executions and change laws. Kobayashi (2015) makes an important geographic intervention in this regard by tracing the different notions of place appealed to by both pro- and (ultimately unsuccessful) anti-death penalty activism surrounding the execution of Troy Davis. When the media, local communities, elected officials and lawyers all appeal to a sense of place when dealing with capital punishment, geographers can help explain how.

Lastly, the bourgeoning fields of carceral and legal geographies could add invaluable understanding to the role of capital punishment in American society. Despite attempting to portray itself as an ordinary part of a modern criminal legal system, the death penalty is a fundamentally oppressive tool. Legal scholars and historians have traced the deep linkages between the modern death penalty and racial terror and lynchings in the not-so-distant past (Bakken 2010; Garland 2010; Gonzales-Day 2006). The work that geographers have already done to expand on the idea of biopower (Mendieta 2004; Philo 2001) and shed light on the dynamics of racial-capitalism that shape America’s carceral state (Gilmore 2007; McKittrick 2011) make the death penalty a natural fit for further geographic scholarship. Radical geographers are well-equipped to investigate how the death penalty is a tool of social control. They are also well equipped, as Tyner and Colucci (2015) have begun to do, to explain how the death penalty fits in with capitalism’s valuation of bodies across space, race, and class. Capital punishment is also a unique subject for investigations of “carceral timespace”, which has only recently emerged as a bridge in the prison scholarship of human geography and other social sciences (Moran 2012). Death row typically means permanent solitary confinement for prisoners, with time becoming all the more blurred as legal efforts to get off death row take years if not decades. With respect to legal geography, capital punishment, as evidenced by its spatial arbitrariness, provides fruitful material for showing how space and the law are inseparable. It is also a subject that lends itself well to the exploration of emerging debates in the field regarding the roles of agency and contingency (such as the individual decisions made by prosecutors and jurors) and structure and determination (capitalism’s devaluation of bodies) in the shaping of the law (Orzeck and Hae 2019).

Currently there are around 2,600 prisoners on death row across the country. In comparison to the entire prison population of over 2.3 million, this small subset seems almost insignificant, especially from an abolitionist perspective that rightly does not view Life Without Parole or other lengthy sentences as desirable alternatives to capital punishment. But every execution is a black mark on the world’s humanity and should be treated with appropriate ire and confronted with all of the tools that researchers and activists have at their disposal. Abolishing the death penalty is a goal that is increasingly within reach. Radical geographers are uniquely situated to contribute to that goal while furthering our discipline’s understanding of some of its most groundbreaking theoretical work.

References

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