Geographic Arbitrariness in Capital Punishment: Death as an Inhabited Institution

The U.S. criminal legal system is highly localized. This reality extends to what U.S. Supreme Court Justice Stephen Breyer called “geographic arbitrariness” in the implementation of the death penalty. The inhabited institutions perspective, augmented with concepts from Weber’s sociology of law, frames our analysis of how a local process that is not arbitrary—prosecutors’ interpretations of statutory aggravating factors—result in geographic arbitrariness in the aggregate, in which defendants’ exposure to the death penalty is strongly conditioned by locality. We utilize data coded from prosecutors’ office case files and court docket transcripts, as well as interviews with current and former District Attorneys and Assistants in Pennsylvania, to illuminate prosecutorial death penalty decisions and their interpretations of statutory aggravating factors. Our analysis is driven by two sets of questions. First, how do prosecutors differ in the filing of specific aggravating factors in the face of similar factual circumstances? Second, how do prosecutors evaluate the meaning of the aggravators and decide whether to seek the death penalty? We show that prosecutors inhabit death penalty statutory law by (1) defining statutory aggravators, drawing comparisons and contrasts from experience with prior cases; (2) making strategic assessments of how local juries will view evidence; (3) normatively evaluating individual cases, offenders, and—crucially—victims; and (4) subjectively evaluating the legal value of aggravating factors themselves. Because ambiguity in statutory aggravators necessitates differing interpretations by prosecutors, death penalty law ensures geographic arbitrariness.