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• W2528441497 abstract "We review statistical patterns of the geographic distribution of US executions, compare them to homicides, and demonstrate extremely high degrees of concentration of executions in the modern period compared to previous historical periods. We further show that this unprecedented level of concentration has been increasing over the past 20 years. We demonstrate that it is virtually uncorrelated with factors related to homicides. Finally, we show that it corresponds to a statistical distribution associated with “self-reinforcing” processes: a power-law or exponential distribution. These findings stand whether we look at individual counties within death-penalty states, across the 50 states of the United States, or look at the international distribution of executions across countries in recent years. The substantive conclusion from the statistical patterns observed is that these cannot be explained merely by random variation around some general average. Rather, localities start down a path, then are reinforced in their pathways. There appears to be little to no logic about why certain counties are the high-use counties, whereas the vast majority have never executed a single individual in 40 years of experience with the modern death penalty, often in spite of thousands of homicides. Our research indicates that a main determinant of Copyright © 2016 Frank M. Baumgartner, Woody Gram, Kaneesha R. Johnson, Arvind Krishnamurthy, and Colin P. Wilson. *Corresponding author, Frankb@unc.edu. Baumgartner is Richard J. Richardson Distinguished Professor of Political Science at UNC-Chapel Hill. Gram is a 2014 graduate of UNC and currently attends the University of Richmond School of Law. Johnson, Krishamurthy, and Wilson are current students at UNC. BAUMGARTNER (DO NOT DELETE) 9/23/2016 9:58 AM 2 DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY [VOL. 11:1& 2 whether an individual will be executed is not the crime they commit, but the jurisdiction’s experience with executing others. This is not acceptable—legally, morally, or constitutionally. INTRODUCTION A small number of jurisdictions in the US generate most of the executions. This high level of geographic concentration is not explained by the number or the rate of homicides. Many of the jurisdictions with the greatest number, or the greatest rates of homicide per population, are not among the highest executing ones. The extreme concentration of jurisdictions using the death penalty can be seen whether we compare the 50 states, over 3,000 counties across the country, counties within states, or even the countries of the world. The high level of concentration we observe in the modern death penalty has been growing in the past 15 years, as the death penalty has been in decline. Indeed, it is higher in the modern period than it was in any period in US history from colonial times. Not only has the geography of execution become more focused, but it has taken on a “southern” character which it did not previously exhibit in other historical periods. Finally, the level of geographic concentration is so great that it satisfies the statistical requirements to be classified as a “power-law” distribution, suggesting a self-reinforcing process in which the best predictor of the next execution in a jurisdiction is not the number of homicides, but the number of previous executions already carried out. 1. See infra Table 2. 52% of the executions since 1976 have come from just 57 counties. See also infra Figure 4. 2. See infra Table 2. The 57 counties generating 52% of the executions have just 24% of the homicides occurring in death-penalty states. 3. See infra Figures 1–3. 4. We use the term “modern” to refer to the post-Furman (1972) death penalty. Furman v. Georgia, 408 U.S. 238 (1972). Executions were halted by this 1972 decision and went forward again under more restrictive rules after the 1976 Gregg decision. Gregg v. Georgia, 428 U.S. 153 (1976). Over 1,400 executions have now occurred in the 40 years following the Gregg decision. Because the Court mandated different standards in Gregg than those rejected as insufficient in Furman, we focus on the “modern” or post-1976 executions throughout this article. 5. See infra Figure 8. 6. See infra Figure 7. 7. We will explore the concept of a power-law distribution in greater detail below. See generally PETER BAK, HOW NATURE WORKS: THE SCIENCE OF SELF-ORGANIZED CRITICALITY (Copernicus 1996) (discussing the power-law distribution); DUNCAN J. WATTS, SMALL WORLDS: THE DYNAMICS OF NETWORKS BETWEEN ORDER AND RANDOMNESS. (Princeton Univ. Press 1999) (same) [hereinafter Small Worlds]; DUNCAN J. WATTS, SIX DEGREES: THE SCIENCE OF A CONNECTED AGE (Norton 2003) (same) [hereinafter Six Degrees]; ALBERT-LASZLO BARABASI, LINKED: THE NEW SCIENCE OF NETWORKS (Penguin 2005) (same). BAUMGARTNER (DO NOT DELETE) 9/23/2016 9:58 AM 2016] GEOGRAPHIC DISTRIBUTION OF EXECUTIONS 3 The US has “self-organized” into a large majority of jurisdictions that do not execute in spite of high numbers of homicides, and a small number which execute at rates many times greater than others, but which are not particularly affected by high homicide rates. The differences that we document below are not small local fluctuations around an average value and attributable to random fluctuations. Rather, they have the characteristics of completely different systems of justice based on local norms developing independently and building on their own historical momentum to generate radically different outcomes which call into question the equal protection of the law. In Part II, we explain the sources of our data. In Part III, we document the distribution across states and counties where executions have occurred in the modern period. Part IV compares these data with homicides, showing a low correlation between homicides and executions, even in death-penalty states. Part V demonstrates that this pattern of high concentration is true across counties within states just as it is across states. Part VI compares the modern period with previous historical periods, displaying increased concentration and a greater focus on the US South in the modern period. Part VII discusses the “power-law” aspects of the data. We conclude in Part VII with a discussion of the implications of these findings, which are all presented in simple graphical, mapping, and tabular forms, except for the powerlaw demonstration, which by its nature requires some algebra, but which we explain in simple terms as well. We focus here on executions, not death sentences, for several reasons. First, we have a comprehensive database on executions for the entire modern period, which can be compared to an existing database for the earlier historical period. No such database exists for the question of death sentences. Second, a recent report has shown that death sentences and executions show similar levels of concentration. In both cases, just two percent of the counties produce a majority of the cases. Our focus on executions allows us to assess those cases where the death penalty has been fully carried out, and also allows a comprehensive assessment of the entire record of the death penalty since its modern re-establishment. 8. Richard Dieter, The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases At Enormous Costs to All, DEATH PENALTY INFORMATION CENTER (Oct. 2013), http://www.deathpenaltyinfo.org/documents/TwoPercentReport.pdf. BAUMGARTNER (DO NOT DELETE) 9/23/2016 9:58 AM 4 DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY [VOL. 11:1& 2 I. DATA SOURCES We use the following sources of data throughout this analysis." @default.
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