A Systematic Lottery: The Texas Death Penalty, 1976 to 2016

Abstract

Although the Supreme Court denied certiorari in Hidalgo v. Arizona (2018), Justice Breyer recognized that empirical research regarding the arbitrary administration of the death penalty could ultimately be used to strike down capital punishment. However, empirical research would only be efficacious if the data were more rigorous than those presented by Hidalgo. Focusing on Texas from 1976 to 2016, our research answers the call for robust data collected over a long period of time. Our findings indicate that the death penalty was rarely imposed among eligible cases—a trend that has accelerated in recent decades. However, the death penalty was considerably more likely to be imposed if the defendant killed a white female. Such patterns suggest that the modern Texas death penalty is a systematic lottery: death sentences are so rare as to be virtually random, yet death sentences are patterned by the race and gender of the victim. Defying strict logic, the Texas death penalty is indiscriminate yet discriminatory.