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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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Tuesday
Jan312006

62. Death penalty rates

There is little difference between the reported property crime rates of developed Western nations.  England and Wales are higher than Australia in car damage, but lower in burglary.  And so on.  The U.S. is right in the middle of the pack.

Homicide is different.  The United States' homicide rate is consistently much higher than that of any other developed Western nation.  But when you dig a little deeper, you discover that the American homicide rate varies greatly among the individual states.  Our northern states, generally speaking, are comparable to Canada, Australia and Western Europe.  It's the southern states that raise our national average.

The difference between the states is made stark by the Centers for Disease Control injury maps service.  Follow the link and hit "Create national map", then change the default "Cause of death" to "homicide", and click on the blue map-and-arrow icon.

What you'll see is a startlingly vivid map.  Counties that have a homicide rate at or above the 90th national percentile (i.e., in the top 10%) are shaded in red.  Counties with a homicide rate at or above the 75th percentile, but below the 90th percentile, are shaded in blue.  Most of the color is found in counties below the 37th parallel,  the slightly ragged line that runs along the tops of Arizona, New Mexico, Oklahoma, Arkansas, Tennessee and North Carolina.

A map of states that have the death penalty is not particularly revealingA map of the states that  carried out the most executions during the years 1997-2003 tells us a little bit more.  By the time we get to a map of the states identified by the percentage of inmates on death row, a pattern is beginning to emerge.

Below are two columns.  The column on the left gives the 15 states with the highest homicide rates per 100,000 inhabitants, using 1997 figures.  In the right-hand column are the top 15 ranked by death sentences imposed (which is to say, ordered, but not necessarily carried out) per 100,000 inhabitants. 

Homicide Rate (1997)                                     Death Penalty Rate (1997)

1. Louisiana (15.7/100,000)                       1. Nevada (5.18/100,000)

2.  Mississippi (13.1)                                        2.  Oklahoma (4.13)

3.   Nevada (11.1)                                              3.  Alabama (3.68)  

4.  Alabama (9.9)                                             4. Arizona (2.64)

5. (tie) Arkansas (9.9)                                    5.  Florida (2.52)

              Maryland (9.9)                                    6. North Carolina (2.37)

7.  Tennessee (9.5)                                          7.  Mississippi (2.34)

8.  Illinois (9.2)                                                 8.  Texas (2.26)

9.  Alaska (8.9)                                                  9.  Delaware (2.04)

10.  South Carolina (8.4)                            10.  Tennessee (1.92)

11.  North Carolina (8.3)                             11.  South Carolina (1.80)

12.  Arizona (8.2)                                           12.  Pennsylvania (1.78)

13.  California (8.0)                                      13.  Idaho (1.57)

14.  Missouri (7.9)                                        14. Missouri (1.63)

15.  Michigan (7.9)                                       15.  Louisiana (1.61)

 

Nine states appear on both of the above lists.  Others don't miss by much.  Oklahoma and Florida, near the top of the right-hand column, tied for the 20th highest homicide rate in 1997. 

Here you can find 2003 homicide figures in Excel spreadsheet format.  (Click on table 5.)  The most interesting change from 1997 to 2003 involved Texas, the state notorious for sheer number of executions.  In 1997 its homicide rate ranked it at # 22.  Six years later, it was tied for # 10.   All the states I looked at (22 in all) saw a drop in the homicide rate from 1997 to 2003.  Texas was tied for the second-smallest drop.

The rough correlation between homicide and death penalty rates can be interpreted many ways.  For instance: the more murderous the state, the more that drastic measures such as the death penalty are needed, and the more popular support capital punishment will have.

But I think a more convincing interpretation looks at regional culture.  In some areas of the United States, the flash point (see post59) is lower than in other areas.  As Bertram Wyatt-Brown showed in his Southern Honor: Ethics and Behavior in the Old South (also available in abridged form as Honor and Violence in the Old South), there's a long historical tradition of violence in the defense of honor in the South.  That is, there's a long tradition of deciding that a person deserves to die for what he's done.  The South has long had a lower flash point than the snowy wastes of the north.

I think the states below the 37th parallel tend to have high murder rates and high death penalty rates because both rates reflect the low flash points of cultures that don't question the premise that a person can, by his behavior, forfeit the right to live.  Some individuals find that standard satisfied at a relatively low level of provocation ("he cut me off") while the state requires a much higher level ("especially cruel and atrocious").  But the moral impulses are unmistakably related.

Reader Comments (2)

Mr. Jacobsen,

I just wanted to say that I have enjoyed your postings--much deeper fare than usual, even on the law blogs.

In reference to your death penalty piece, I looked for my home county in Eastern Kentucky and sure enough it [Clay County], and several adjoining counties, cut a bloody swath through the aprt of Southern Appalachia were I was raised.

February 6, 2006 | Unregistered CommenterKyProsecutor
Engineering, architecture
Engineering, architecture
January 14, 2008 | Unregistered CommenterGeonoRawesodo

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