What makes a punishment “unusual?” The 8th Amendment to the Constitution bans “cruel and unusual” punishments, and the Supreme Court in recent years has suggested that a punishment becomes unusual when few states have it in their laws, or, if laws are still on the books, when few jurisdictions choose to actually use the punishment.
So what do we make of the fact that since 2004, only 10% of US counties have actually passed a death sentence? That’s the bottom line of a new set of maps (presented on the Second Class Justice blog) which illustrate US death sentences by county from the years 2004-2009. Counties are where US death sentencing happens (aside from federal death sentences). If 9 out of 10 counties have not issued a death sentence in 5 years, does that make the death penalty unusual?
One of the reasons the high Court struck down capital punishment as “cruel and unusual” back in 1972 was its inconsistent and arbitrary application. “…[C]ruel and unusual in the same way that being struck by lightning is cruel and unusual,” the Court said. In reinstating the death penalty, the Court insisted that death sentences be limited to the “worst of the worst.” But that hasn’t happened. Instead, death sentences, like real estate, are all about location, location, location.
And the maps reveal that the prime real estate for death sentences is no longer in Texas or other parts of the Old South. In recent years, the most enthusiastic death sentencing counties have been further west, in California and Arizona. (These same states, incidentally, are currently embroiled in a controversy over whether or not they acquired execution drugs illegally.)