Where the Death Penalty Still Lives

As capital punishment declines nationwide, a tiny fraction of the country generates an alarming number of death sentences. What this new geography tells us about justice in America.

On a Saturday evening in July 2013, just before 6:30, James Rhodes was recorded on a surveillance camera walking into a Metro PCS cellphone store in Jacksonville, Fla. He was wearing a black do-rag and a blue bandanna, which he pulled over his nose and mouth. Shelby Farah, the store manager, stood behind the counter. Rhodes pointed a gun at her and demanded the money in the cash register. Shelby gave it to him. Then Rhodes shot her in the head. She was 20 years old. He was 21.

Shelby, the oldest of three siblings in a family of Palestinian descent, was working and planning to start college in the fall. Her mother, Darlene Farah, had been nervous when her daughter started as a manager of the Metro PCS branch, which was in a high-crime part of town, miles from their home near the beach. But Shelby told her mother she felt comfortable in the neighborhood; she’d gone to high school nearby, attending a magnet program on criminal justice. She was nicknamed “peacemaker” in middle school because she couldn’t stand to see kids argue. An accomplished cheerleader, she volunteered for two seasons as a coach for a group of girls instead of pursuing a chance to make the cheerleading squad for the Jaguars football team.

Rhodes, who is black, was placed in foster care at age 5 and went to live at a state boys’ home at 6. He reads at a third-grade level and struggles with simple math. At 17, Rhodes moved to an older cousin’s house with his younger half sister. After a couple of weeks, their cousin disappeared, leaving them without money for food or rent. The landlord evicted them. Within 14 months, Rhodes was arrested for petty theft at Sears, Walmart and Kmart and for jumping and robbing a man with four other boys. At 19, he was jailed for brandishing a gun at two women. Rhodes says he was high when he killed Farah. He told his lawyer, the assistant public defender Debra Billard, that he was sorry for what he had done. In early 2014, Billard told prosecutors that Rhodes would plead guilty in exchange for a sentence of life without parole. Instead, the state was determined to seek the death penalty.

In most of the country, it would be very unlikely for prosecutors to pursue death for a defendant like James Rhodes. Execution is supposed to be a punishment for the “worst of the worst,” Justice David Souter wrote a decade ago. With violent crime falling, and bipartisan concerns about the rising costs of capital murder trials increasing — some states spend an average of $1 million more on litigation for a defendant sentenced to death than on one sentenced to life in prison — the death penalty is on the decline in the United States.

Twenty states and the District of Columbia have abolished capital punishment. Four more have imposed a moratorium on executions. Of the 26 remaining states, only 14 handed down any death sentences last year, for a total of 50 across the country — less than half the number six years before. California, which issued more than one-quarter of last year’s death sentences, hasn’t actu­ally executed anyone since 2006. A new geography of capital punishment is taking shape, with just 2 percent of the nation’s counties now accounting for a majority of the people sitting on death row.

The Supreme Court has been trying for more than 40 years to write rules that can fairly determine which murderers live and which die. In 1972, the court came close to abolishing the death penalty — because, as five justices argued for different reasons in five separate opinions, it was being imposed arbitrarily, and thus qualified as the “cruel and unusual punishment” that the Eighth Amendment prohibits.

And yet the court allowed states to try to correct the problem by passing new laws that limited the death penalty to certain types of crimes the state considered most blameworthy. “The idea was to make sentencing decisions turn on the severity of a defendant’s offense instead of random factors, such as where the crime occurred, or insidious factors, such as race,” says Evan Mandery, a professor at John Jay College of Criminal Justice.

It would be a far more sweeping change for the Supreme Court to declare a national consensus for ending the death penalty. Today polls show that more than 60 percent of Americans continue to favor capital punishment, though more than half say they would prefer to impose life without parole if given the option.

What separates the 16 counties where the death penalty regularly endures from the rest of the country, where it is fading away? The 16 counties span seven states in the South and the West. They include major cities, like Los Angeles, Houston, Las Vegas and Phoenix; suburban areas like Orange County, Calif., and San Bernardino, Calif.; and semirural pockets like Mobile County, Ala., and Caddo Parish, La. Some are dominated by Demo­cratic voters, some are dominated by Republicans and a few are evenly split. Many of the counties have high numbers of murders, but so do plenty of other places that don’t use the death penalty.

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