Is the Modern American Death Penalty a Fatal Lottery? Texas as a Conservative Test

In Furman v. Georgia (1972), the Supreme Court was presented with data indicating that 15% to 20% of death-eligible defendants were actually sentenced to death. Based on such a negligible death sentence rate, some Justices concluded that the imposition of death was random and capricious—a fatal lottery. Later, the Court assumed in Gregg v. Georgia (1976) that guided discretion statutes would eliminate the constitutional infirmities identified in Furman : If state legislatures narrowed the pool of death-eligible defendants to the “worst of the worst” then most would be sentenced to death, eliminating numerical arbitrariness. However, recent research suggests that numerical arbitrariness remains, as the death sentence rate falls below the Furman threshold in California (11%), Connecticut (4%), and Colorado (less than 1%). The current research estimates the death sentence rate in Texas. Interestingly, Texas provides a conservative test. In contrast to most states, the Texas statute does not include broad aggravators that substantially enlarge the pool of death-eligible defendants and therefore depress the death sentence rate. Nonetheless, the death sentence rate in Texas during the period from 2006 to 2010 ranges from 3% to 6% (depending on assumptions made about the data). The same pattern holds true in the key counties that send the largest number of defendants to death row: Harris (Houston), Dallas (Dallas), Tarrant (Fort Worth and Arlington), and Bexar (San Antonio). Thus, the data suggest that Texas can be added to the list of states in which capital punishment is unconstitutional as administered. If the death sentence rate in Texas runs afoul of the Furman principle then the prognosis for other states is not encouraging.