American death sentences have become just about as rare as hens' teeth--in far less time than the 80 million years it took for our modern-day hens' ancestors to lose the toothy beaks that enabled them to crunch food. In his dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2775 (2015), U.S. Supreme Court Justice Stephen Breyer noted the "dramatic declines" in death sentences, including in states like Texas and Virginia, as supporting his conclusion that the death penalty is categorically unconstitutional. As Justice Breyer also recognized, capital punishment is largely concentrated in a very few counties within those states that still implement it. He noted: "Between 2004 and 2009, for example, just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." Id. at 2761. The frequency and geography of the death penalty in America has indeed radically changed, raising practical and constitutional questions for litigators and judges.
Fewer Death Sentences
The American death penalty today produces the fewest death sentences in three decades. Just over 50 defendants were sentenced to death in 2015. Compare that to the 10,000 or so homicides that occur each year across the country. In the 1990s, several hundred people were sentenced to death each year. This rapid and stunning drop is even more marked at the local level. Even within the biggest capital punishment states, death sentences now come from a shrinking group of individual counties, like Riverside County, California, and Duval County, Florida. While local patterns are less visible, the forces driving down the death penalty are actually working fastest at the county level. The vast majority of current U.S. prosecutors never have sought the death penalty and never will, even in the active death penalty states. This has long been true, but it is even more so in this era of a declining death penalty.
While there are over 3,000 total counties in the United States, each has its own distinct culture in the local criminal courts, where day in and day out, prosecutors and defense lawyers negotiate and litigate criminal cases, and judges and juries convict defendants. Although there were over 5,000 death sentences handed down from 1973 through 1995, the bulk of the nation's counties did not sentence anyone to death. But, during that period, death sentencing counties were more widely dispersed than they are now, so that at least some small rural counties did regularly impose death sentences. There were counties that sentenced five, 10, or more people to death in just a single year--more people than most entire states now sentence. The record for death sentences in a single year goes to Philadelphia County, Pennsylvania, which sentenced 20 people to death in 1983 (followed by Harris County, Texas, which sentenced 17 people to death in 1978, and then 15 people in both 1983 and 1992).
Such county-level data for death sentences had not been as readily available in the mid-1990s, the very time period when the...