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Deon Brock, Nigel Cohen, Jonathan Sorensen

excerpted from: Deon Brock, Nigel Cohen, Jonathan Sorensen, Arbitrariness in the Imposition of Death Sentences in Texas: an Analysis of Four Counties by Offense Seriousness, Race of Victim, and Race of Offender , 28 American Journal of Criminal Law 43-71, 64-70 (Fall 2000)

We compared the percentage of homicide arrests to the percentage of death sentences from each of the major jurisdictions in Table 1. This overall comparison illustrates the geographical disparities across jurisdictions. In all of the jurisdictions except Houston, arrests are under-represented among sentences. While not statistically significant, the ratio of homicide arrests to death sentences is .78 in both Fort Worth and San Antonio, meaning that there are approximately one-quarter fewer death sentences than would be expected given the statewide percentage of arrests from those jurisdictions. The figures showed only one-half as many death sentences as expected for Dallas, given the percentage of arrests from that jurisdiction.

Houston was the only jurisdiction with more death sentences than expected. While Houston accounts for just over one-fourth of the homicide arrests, nearly one-third of the death sentences issued statewide were from that jurisdiction. Both proportionately and in the overall volume of death sentences, Houston murderers are over-represented among death-sentenced inmates. This disparity, however, could be due to legitimate case characteristics. If the offenses occurring in Houston were generally more severe, then the higher ratio of death sentences to arrests within that jurisdiction may be justified. In order to test this possibility, it is necessary to control for the level of case seriousness when examining death sentencing rates.

In an effort to control for the levels of case seriousness within the studied jurisdictions, we had to find those case characteristics that were predictive of death sentences throughout the state. In Table 2, arrests are compared to death sentences on all variables available in the SHR. As expected, given the statutory definition of capital murder, the presence of a contemporaneous felony was the best predictor of a death sentence, with sexual assaults being over-represented among death sentences by a ratio of twenty-five to one. The cause of death was also consistently related to a sentence of death. Gun- related murders were the least common among death sentences and murders resulting from strangulation of the victims were over-represented by a ratio of ten to one. The weapon used in inflicting death appears to be an indicator of the brutality of the offense. Crimes committed by strangers and men were more common among death sentences, as were those involving multiple offenders and multiple victims. These case characteristics point to a more premeditated or instrumental form of homicide. Characteristics conveying innocence or physical weakness on the part of the victim were also more likely to result in death sentences, with offenses perpetrated against females, children, youths, and the elderly over-represented.

From the relationships discovered in Table 2, we constructed a simple additive scale of case seriousness. First, the significant predictors were grouped into categories by their common features. Second, the presence or absence of these features was determined for each case. Third, the cases were scored based on the number of the following features they possessed: (1) contemporaneous felonies/murders committed by strangers; (2) deaths resulting from weapons other than guns; (3) deaths of multiple victims; and (4) helplessness of the victim as indicated by the sex and age of the victim, or the presence of multiple offenders.

The results, presented in Table 3, show that the scale is very good at predicting death sentences. Less than 1% of the death sentences scored "0" on the scale as compared to 28% of arrests. As the levels of seriousness, the ratio of death sentences to arrests steadily increases. Nearly 8% of the death sentences scored in the highest range of severity, compared to less than 1% of the arrests.

In Table 4, the scale is used to compare the ratios of death sentences to arrests by the seriousness of offenses among jurisdictions. Other than some seemingly anomalous findings in the highest level of severity, such as the zero ratio in Fort Worth or the extreme of twenty-one to one in Dallas, which may have resulted from unreliably small cell sizes, the overall patterns among jurisdictions was quite similar to the statewide pattern. Of particular concern was Houston, whose arrests were found to be over-represented among death sentences in earlier comparisons. Once level of seriousness was considered, the ratio of death sentences to arrests in Houston appeared similar to, or even lower than, those of other jurisdictions. Rather than being attributable to arbitrariness in sentencing practices within the jurisdictions, the higher ratio of death sentences to arrests found in Houston in earlier comparisons may be indicative of the seriousness of murders in Harris County.

Another possible source of arbitrariness may result from the consideration of inappropriate criteria in the sentencing process within jurisdictions. In Table 5, the ratios of death sentences to arrests are presented for racial categories across the entire state of Texas. Regarding the race of the defendant, Whites appear to be over-represented, while Hispanics are under- represented. Regarding the victim's race, cases involving Whites are over- represented at a rate exceeding two to one, while cases involving Blacks and Hispanics are under-represented by as much. The combination of offender/victim racial categories reveals a more insidious portrait of racial disparities within the state. Killers of whites are always over-represented among death sentences, but the extent of over-representation depended on the race of the offender. While the ratio was one and a half to one for Whites who killed Whites, the ratio for Hispanics who killed Whites was nearly two and a half to one and exceeding four to one for Blacks who killed Whites. In contrast, killers of minorities were under-represented. Killers of Blacks were under-represented, especially if the killer was White. Killers of Hispanics were over-represented among Blacks, but severely under-represented when the offenders were also Hispanic.

The nature of these killings may account for much of these apparent disparities. Inter-racial crimes involving White victims are likely to be of a more serious nature than those involving intra-racial murders among minorities. In Table 6, the level of seriousness is controlled to determine if racial disparities still exist statewide. Because of the consistency of findings and due to relatively small cell sizes within jurisdictions, comparisons are limited to those based on the race of the victim. Also due to small cell sizes that make comparisons unreliable in the extreme levels of severity, the scale is collapsed into three categories, the least serious and most serious categories being combined into their closest respective categories. As shown in Table 6, disparities based on the race of the victim remain regardless of the level of case seriousness. The amount of disparity, however, decreases as the level of seriousness increases, from about two and a half to one in the lowest levels to about one and a half to one in the highest levels of offense seriousness.

In Table 7, the ratio of death sentences to arrests involving White victims across different levels of seriousness is presented for each of the selected jurisdictions. With some exceptions, the results show that racial disparities in death sentencing based on the race of the victim follow the overall pattern for the state shown in Table 6. In general, as the level of seriousness of the crime increases, the disparities decrease. Dallas and Houston display similar patterns, with levels of disparity decreasing from nearly three to one in Houston and three and a half to one in Dallas in the lowest level of seriousness to under one and a half to one in the highest level. The results for San Antonio are somewhat unexpected in that the ratios remain at about two to one regardless of the level of seriousness. Compared to the other jurisdictions, Fort Worth displays the greatest disparity in the mid- level cases, with less disparity in the lowest and highest levels of seriousness.

Initial geographical disparities among jurisdictions appear to be related to the level of case seriousness, and not to result from arbitrary sentencing practices across these jurisdictions. Across the state, and within each of the major jurisdictions, however, the prevalence and consistency of disparities based on the race of the victim indicate a pattern of arbitrary sentencing. These findings are consistent with other studies performed in Texas and elsewhere, and represent one of the most enduring and tragic consequences of capital punishment in the United States--prospective candidates for execution are screened and selected to a large extent on the basis of race.

. Assistant Professor of Criminal Justice, University of Texas at Brownsville; B.S. 1987, M.S. 1991, Central Missouri State University; Ph.D. 1998, Sam Houston State University College of Criminal Justice

. Assistant Professor of Criminal Justice, The University of Texas- Pan American; B.A. 1992, Brandeis University; J.D. 1995, University of Pittsburgh School of Law; M.A. 1998, Rutgers-The State University of New Jersey, School of Criminal Justice, Campus at Newark.

. Associate Professor of Criminal Justice, Fitchburg State College; B.S. 1986, Pan American University; M.A. 1987, Ph.D. 1990, Sam Houston State University College of Criminal Justice.