Race and the Death Penalty: The Legacy of McCleskey v. Kemp 9781626375130

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Race and the Death Penalty

Race and the Death Penalty The Legacy of McCleskey v. Kemp edited by

David P. Keys R. J. Maratea

b o u l d e r l o n d o n

Published in the United States of America in 2016 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2016 by Lynne Rienner Publishers, Inc. All rights reserved

Library of Congress Cataloging-in-Publication Data Names: Keys, David P. | Maratea, R. J., 1973– Title: Race and the death penalty : the legacy of McCleskey v. Kemp / David P. Keys and R.J. Maratea. Description: Boulder, Colorado : Lynne Rienner Publishers, Inc., 2016. | Includes bibliographical references and index. Identifiers: LCCN 2015037573 | ISBN 9781626373563 (hc : alk. paper) Subjects: LCSH: Capital punishment—United States. | Discrimination in capital punishment—United States. | Discrimination in criminal justice administration—United States. Classification: LCC KF9227.C2 R33 2016 | DDC 345.73/0773—dc23 LC record available at http://lccn.loc.gov/2015037573

British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library.

Printed and bound in the United States of America The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5

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To the memory of Albert Cohen, who during his long and productive life never failed to inspire with a smile, met intolerance with bravery, and adored a party

Contents

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List of Tables and Figures Acknowledgments 1 Racial Bias and Capital Punishment, Richard C. Dieter

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Part 1 The Crisis of Race and Capital Punishment 2 McCleskey v. Kemp and the Reaffirmation of

Separate but Equal, David P. Keys and R. J. Maratea

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3 Revisiting McCleskey v. Kemp: A Failure of

Sociological Imagination? Tony G. Poveda

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4 McCleskey and the Lingering Problem of “Race,”

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Ross Kleinstuber Part 2 Race, Class, and Capital Sentencing 5 Overcoming Moral Peril: How Empirical Research

Can Affect Death Penalty Debates, R. J. Maratea

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6 Capital Sentencing and Structural Racism:

The Source of Bias, Gennaro F. Vito and George E. Higgins vii

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7 Capital Case Processing in Georgia After McCleskey:

More of the Same, Jacqueline Ghislaine Lee, Ray Paternoster, and Michael Rocque

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8 Addressing Contradictions with the Social Psychology

of Capital Juries and Racial Bias, Jamie L. Flexon

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9 Nothing Succeeds Like Failure: Race,

Decisionmaking, and Proportionality in Oklahoma Homicide Trials, 1973–2010, David P. Keys and John F. Galliher

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Part 3 Death in the Past, Present, and Future 10 Why Do We Need the Death Penalty? Robert M. Bohm

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11 The Death Penalty’s Dirty Little Secret,

Franklin E. Zimring

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12 Race of Victim and American Capital Punishment,

Franklin E. Zimring Bibliography The Contributors Index About the Book

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Tables and Figures

Tables 5.1

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7.2 7.3 7.4

7.5 9.1 9.2 9.3

Likelihood of Prosecutor Seeking the Death Penalty and Capital Punishment Being Sentenced Based on Race of Defendant and Victim Probability of Prosecutor Seeking a Death Sentence by Offender and Victim’s Race and Offender/Victim Racial Combinations Probability of Prosecutor Seeking a Death Sentence by Location of the Homicide Logistic Regression Results for the Decision of the Prosecutor to Seek a Death Sentence, Case Characteristics Logistic Regression Results for the Decision of the Prosecutor to Seek a Death Sentence, Adjusted Racial and Geographic Factors Covariate Balance Before and After Case Matching on Race of Victim and Urban/Rural Probability of Prosecutor Charging Capital Homicide (Phase 1) Probability of Prosecutor Requesting Death Penalty (Phase 2) Probability of Death Sentence (Phase 3)

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Figure 11.1 Comparing Death Row Populations and Executions in Texas and California ix

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Acknowledgments

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HIS BOOK WOULD NEVER HAVE BEEN POSSIBLE WITHOUT THE

participation of the amazing group of collaborators whose work appears here: Robert Bohm, Richard Dieter, Jamie Flexon, John Galliher, George Higgins, Ross Kleinstuber, Jacqueline Ghislaine Lee, Ray Paternoster, Tony Poveda, Michael Rocque, Gennaro Vito, and Franklin Zimring. We thank each of you for your contributions and help in making this project a reality. Franklin Zimring deserves special merit for providing editorial advice and feedback; we have benefited greatly from your expertise and guidance. Of course, we must acknowledge the work of David Baldus, Hugo Adam Bedau, Charles Pulaski, George Woodworth, and all the other scholars who have made it their life’s duty to study capital punishment and intellectually evaluate the most severe of penal sanctions. Their work inspires everything that follows in this book. Additional thanks go to Isaac Unah, Michael Radelet, John Johnson, David Altheide, Joel Best, John Hepburn, Aaron Kupchik, and Giancarlo Panagia for providing input, feedback, and mentorship along the way. We also wish to acknowledge the late William Chambliss for his influential role as a scholar and, more important, for helping to make so many of us better people. The staff at Lynne Rienner has been tremendously supportive and deserves commendation for their professionalism. Andrew Berzanskis and Lynne Rienner have been exemplary guides through this process; xi

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their flexibility and encouragement have been invaluable even though we undoubtedly tested the limits of their patience. Equally instrumental have been our extraordinary professional colleagues and students, who perpetually reinvigorate our desire to teach and learn. We could not have reached this point without the support of our families and friends. Thank you for inspiring us to pursue our goals and stay true to ourselves as scholars. —D. P. K. and R. J. M.

1 Racial Bias and Capital Punishment Richard C. Dieter

N J ANUARY 17, 1977, G ARY G ILMORE WAS PUT TO DEATH BY firing squad in Utah. Although many people protested the return to executions in the United States after a ten-year moratorium, Gilmore wanted no part of the dissent, dismissing his lawyers and begging the state to carry out his execution (New York Times 1977). The death penalty was back, and there did not seem to be any way to stop it. Despite glaring inequities in its application, the Supreme Court declared the death penalty constitutional, and a large majority of the states had passed new statutes to underscore their support. Although the first five executions after the reinstatement of the death penalty involved white defendants, the nagging issue of racial discrimination simmered as a potential indictment of the system. When the death penalty was struck down in Furman v. Georgia in 1972, the problem of racial bias was on the minds of many of the justices. Justice William Douglas warned that the “Arbitrariness [of the death penalty] is pregnant with discrimination” (Furman v. Georgia 1972). Justice Thurgood Marshall, who had represented capital defendants in the South, cited racial bias as a primary reason to strike the death penalty down: “It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society. It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment” (Furman v. Georgia 1972).

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But for other justices, the proof of racial discrimination in the death penalty was still lacking. Justice Potter Stewart led the way in deciding Furman on the less sensitive ground of arbitrariness. “My concurring Brothers have demonstrated,” he wrote, “that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed” (Furman v. Georgia 1972). Thus it fell to a humble professor at the University of Iowa College of Law to provide the court and the nation with the proof that some still required. David Baldus returned to the battleground state of Georgia—home of the court’s most important death penalty decisions of the century—and planned one of the most comprehensive studies ever conducted on the issue of race and the death penalty. He and his fellow researchers, George Woodworth and Charles Pulaski, compiled data on nearly 2,500 homicides, taking into account 230 variables, and examined the data with a series of rigorous statistical tests. Their conclusion was clear and statistically compelling: Race was a stronger predictor of who would be sentenced to death in Georgia than many of the aggravating factors commonly used to procure the death penalty, such as the murder of a police officer, or murder with kidnapping (Baldus, Pulaski, and Woodworth 1992). As is now well-known, the case bearing this evidence, McCleskey v. Kemp, went all the way to the Supreme Court, where the death penalty in Georgia was upheld by a 5–4 vote. Justice Lewis Powell, the author of the decision, later revealed to his biographer that it was the one decision in which he would change his vote (Jeffries 1994). But the decision stands and continues to define the court’s position on this critical issue. The majority sensed the implications of David Baldus’s findings—not only could this information upset the death penalty nationwide, but it could also affect the criminal justice system in other ways. Justice William Brennan referred to the court’s hesitancy to embrace this new reality as “a fear of too much justice” (McCleskey v. Kemp 1987a). Warren McCleskey was executed in 1991, ushering in a period of steadily rising executions lasting throughout the decade. On two occasions, the US House of Representatives sought to remedy what the court had done by passing a version of the Racial Justice Act that would have allowed consideration of statistical studies in death penalty appeals as evidence of discrimination, but the Senate would not go along (O. John-

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son 2007). Undeterred, David Baldus continued his research in state after state, amassing an even more convincing body of work demonstrating a fundamental flaw in our system of capital punishment: Those who kill white victims have far greater odds of receiving the death penalty than those who kill black victims. This consistent finding, replicated by many researchers in a broad spectrum of states, lends even more credibility to Baldus’s original research. Today, the death penalty is winding down. Death sentences have decreased by almost 65% since 2000, and executions are down by over half. Seven states in the past seven years have abandoned capital punishment altogether. More states are likely to take that step in the near future as the problems of the death penalty prove it to be unworkable within our constitutional standards. In particular, the alarming prevalence of witness misidentification, prosecutorial misconduct, and DNA evidence yielding wrongful and overturned convictions, along with the prohibitive costs associated with capital punishment, are collectively functioning as an impetus for change. The research of David Baldus and many other scholars has demonstrated that the system failed to meet any reasonable standards, and this will likely lead to its final demise. The country and our system of justice owe David Baldus a debt of gratitude for this immense contribution to our collective knowledge of capital punishment in providing an important catalyst for modern death penalty research. The essays in this volume are indeed inspired by Baldus’s research and insights on the relationship between race and capital punishment. In Part 1, David Keys, R. J. Maratea, Tony Poveda, and Ross Kleinstuber explore the missed opportunity that McCleskey v. Kemp presented. Until that case is revisited, racial bias in the death penalty will likely remain cemented within the system. In Part 2, some of the country’s leading criminal justice researchers, including Gennaro Vito, George Higgins, Jacqueline Ghislaine Lee, Ray Paternoster, Michael Rocque, Jamie Flexon, and John Galliher, build on the work of David Baldus through their own research and analysis of capital punishment. These essays reveal that the problem of racial and economic disparity in sentencing is deeply rooted in US history and is not likely to be overcome by mere “tinkering” with the death penalty. Finally, in Part 3, Robert Bohm and Franklin Zimring peer into the death penalty’s symbolism and future to find other symptoms of decay that may eventually lead to the end of capital punishment. Each essay adds to the fundamental debate about the death penalty that David Baldus so aptly brought to the public’s attention.

Part 1 The Crisis of Race and Capital Punishment

2 McCleskey v. Kemp and the Reaffirmation of Separate but Equal David P. Keys and R. J. Maratea

HEN THE US SUPREME COURT UPHELD THE CONSTITUTIONALITY of capital punishment in McCleskey v. Kemp (1987), it did so by overlooking convincing statistical evidence of intense racial disparities in the application of Georgia’s death penalty statute. The High Court saw fit, in denying the petitioner relief, to validate the state of Georgia’s rather unpersuasive assertions that African Americans committed crimes of passion within their ethnic boundaries and, quite improbably, perpetrated aggravated homicides almost specifically when they assailed whites. Georgia’s attorney, Marybeth Westmoreland, presented this reasoning minus the input of any sentencing expert, absent any legal precedent, and entirely without supporting data. It was an extraordinary moment in the history of the Supreme Court. In the ensuing 25 years, McCleskey came to represent a remarkable and decisive moment when the Supreme Court unwittingly institutionalized racial discrimination as an acceptable circumstance in American justice. To understand the significance of the High Court’s ruling, it is important to consider the historical context by which McCleskey reaffirms “separate but equal” legal bifurcations. Warren McCleskey, the petitioner in the case, was born in 1946 into the Jim Crow South and raised in an impoverished, violence-filled Marietta, Georgia, ghetto (Atlanta Journal and Constitution 1991; Curriden 1991). Not unlike most African Americans at the time living in the Deep South, McCleskey confronted

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dire economic, social, and cultural deprivation and was so destitute by 1970 that he committed a string of nine armed robberies in order to achieve some financial stability for his family. Within a matter of weeks, McCleskey was arrested, pleaded guilty, and was sentenced to three life terms for his crimes; he was eventually paroled after seven years. Following his release, McCleskey and three accomplices— Ben Wright, David Burney, and Bernard Dupree—participated in a May 13, 1978, robbery of the Dixie Furniture Store in Atlanta. McCleskey was tasked with securing the front of the store by having anyone present lie facedown on the floor; the others came through a loading dock in the rear of the store, where they searched the premises for cash. Although the robbers tied up all of the employees and customers—even threatening to kill anyone that moved—one of the victims managed to trigger the silent alarm; police were quickly dispatched to the scene. Officer Frank Schlatt, a fiveyear veteran on the Atlanta police force, was the first to respond, entering through the front door and maneuvering his way down an aisle in the middle of the store. At some point, McCleskey allegedly fired two shots in Schlatt’s direction, the first striking the officer in the head and causing his death and the second ricocheting off a cigarette lighter in the left chest pocket of Schlatt’s uniform. All four robbers escaped. After arresting McCleskey a few weeks later on an unrelated offense, authorities quickly pinpointed him as the perpetrator in Officer Schlatt’s murder. Two employees of the Dixie Furniture Store identified McCleskey as the robber entering through the front door. In his own statement, McCleskey never disputed the fact he had participated in the crime, but adamantly denied being the gunman. At trial, however, one of his accomplices, Ben Wright, testified McCleskey admitted to shooting Schlatt; and jurors listened to an inmate named Offie Evans state McCleskey “made a ‘jail house confession’” in which he claimed to be the triggerman (McCleskey v. Kemp 1987b). In addition, the handgun used in the shooting was the same make and model as one stolen by McCleskey while committing a prior crime. Of course, none of the people present at the Dixie Furniture Store could identify McCleskey as the actual shooter; and while the gun used to kill Officer Schlatt was linked to McCleskey, it could have been fired by any one of the four offenders present at the time of the crime. Furthermore, prosecutors never disclosed to jurors that Offie Evans had received a reduced sentence in exchange for his testimony. This proved important because all of the other evidence, including Ben Wright’s identification of McCleskey as the shooter, was insufficient

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to merit a murder conviction without Evans’s corroboration given that Georgia law establishes “an accomplice’s testimony alone in felony cases is insufficient to establish a fact” (McCleskey v. Kemp 1987b). None of this suggests McCleskey was wrongly convicted; he may have, in fact, fired the bullet killing Officer Schlatt. Rather, the crime itself and the state’s decision to seek death reflect the historical bifurcation of justice administration—one for whites and another for nonwhites—inherent to the sentencing system in Georgia, as argued by McCleskey’s appellate counsel John Boger: If the State of Georgia had criminal statutes that expressly imposed different penalties, harsher penalties, on black defendants simply because they were black, or on those who killed white victims, simply because those victims were white, the statutes would plainly violate the Constitution. There was a time, of course, when the State of Georgia did have such statutes, before our nation’s Civil War, when free blacks and slaves alike could be given a death sentence merely for the crime of assault on a Georgia white citizen. With the ratification of the Fourteenth Amendment, such criminal statutes came explicitly no longer to be written. Yet the old habits of mind, the racial attitudes of that time have survived, as this Court well knows, into the current century. Today, we are before the Court with a substantial body of evidence indicating that during the last decade Georgia prosecutors and juries, in their administration of Georgia’s post-Furman capital statutes, have continued to act as if some of those old statutes were still on the books. (McCleskey v. Kemp 1987a)

Boger’s contention is Georgia’s capital system is tasked to simultaneously protect the lives of whites and discipline African Americans in a fashion not dissimilar to how the slave codes, black codes, and Jim Crow laws had functioned in earlier times. Although the segregationist tradition of overt racism was shunned following the sweeping victories of the Civil Rights Movement, many southern whites opposed to reformation defiantly adopted modifications permitting traditional racist principles to flourish without openly visible discrimination from social, cultural, and political institutions. Michelle Alexander (2010) notes the resulting emergence of race neutrality in policy and practice allowed for a new racial caste system without violating the law or the new limits of acceptable political discourse. Attempting to prove this point, Boger presented the High Court with definitive statistical evidence of Georgia’s disproportionate capital

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sentencing of African American offenders and the assailants of white victims. The centerpiece of Boger’s argument was the Baldus study, a comprehensive statistical examination of more than 2,000 Georgia homicide cases from the 1970s showing murderers of white victims were far more likely (11%) to receive a death sentence than those who kill blacks (1%). These data also indicate prosecutors sought death in 70% of cases when the defendant was black and the victim white, more than double any other racial combination. All told, the Baldus study confirmed capital punishment was 8.3 times more likely to be imposed in white victim cases than in black victim cases (Baldus, Pulaski, and Woodworth 1983). Armed with these data, Boger argued Georgia law did not eradicate racism in its administration of justice despite the remedies put in place by Georgia’s capital punishment statute, approved by the High Court in Gregg v. Georgia (1976).

Placing McCleskey in Historical Context The treatment of Warren McCleskey and other defendants degraded by the criminal justice system is only one aspect of a larger and historically momentous process that can be traced back to the years following the Civil War, Reconstruction, and the Supreme Court’s ruling in Plessy v. Ferguson (1896). On one hand, the majority of the nation in the decades following the War Between the States developed, albeit slowly, a national vision incorporating ideas of equality, fairness, and democracy. Where the primary value of the Revolution defined by the Founders was freedom, most recognizable as a “freedom from” the domination of the British Crown, there was a qualitative transition after the Civil War, aiming at a value of equality (Fletcher 2001). The respected and visionary legal scholar George Fletcher (2001) saw that, more importantly, the highest power of the country was transitioning as well, from the power of the living to a concern for the near-divine sway of history in our mission—the notion the United States was a laudable, if not invincible, beacon of equality and democracy. Despite this appearance of progress, the High Court’s decision to uphold the constitutionality of racial segregation in Plessy has been cited as evidence of a pushback against African Americans justified by the seemingly paradoxical premise that equality and division could be possible under the doctrine of “separate but equal.” This was the very posi-

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tion put forth by more moderate African American leaders of the time, such as Booker T. Washington, who deferred to Jim Crow segregation and the disenfranchisement of black voters, while calling for mobilization focusing on economic progress through self-help for African Americans. Washington saw separation as de facto, promoting what became the Atlanta Compromise in his famous 1895 speech: “In all things purely social we can be as separate as the five fingers, and yet one as the hand in all things essential to mutual progress” (Du Bois 1903[1996]:37). A deeply respected representative of the black community, Washington’s decision to promote peaceful coexistence over confrontation was a shrewd tactic to gain the support of white southerners. This “Atlanta Compromise” is by all odds the most notable thing in Mr. Washington’s career. The South interpreted it in different ways: the radicals received it as a complete surrender of the demand for civil and political equality; the conservatives, as a generously conceived working basis for mutual understanding. So both approved it, and today its author is certainly the most distinguished Southerner since Jefferson Davis, and the one with the largest personal following. (Du Bois 1903[1996]:37)

Although some black leaders—W. E. B. Du Bois for one—believed Washington was simply accepting Negro inferiority and thereby ensuring their submission to whites (Lewis 1993), Washington was ultimately able to win both “the admiration of the North” and the “applause of the South” (Du Bois 1903[1996]:37), in part, because the Atlanta Compromise ensured African Americans would relax their demands for integration and accept white political rule in exchange for systemic improvements in social and economic opportunities afforded to people of color. Of course, the reforms instituted by whites were mostly symbolic; the supposed improvements to Negro education and guarantees of due process in criminal proceedings were little more than veneers masking the continued subjugations of blacks. By the time the Supreme Court made its ruling in Plessy, whites had perfected a racial order protecting “their economic, political, and social interests in a world without slavery” (Alexander 2010:32). Southern conservatives were in effect intent on preserving a racial order attained via segregation without any northern or federal interference through constitutional remakes, judicial decisions, and statutory remedies, such as black codes and other segregation laws, which sought to (1) preserve economic arrangements based in racial di-

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vision contrived to mirror slavery as closely as possible; (2) eradicate the possibility of political alliances among disenfranchised blacks and lower-class, populist whites (who, for all intents and purposes, were themselves black);1 and (3) in a macropolitical sense, solidify a southern coalition in the federal government and the Democratic Party providing veto powers in both. The aim of the white southern bloc, in obstructing any reform legislation, was to perpetuate both a racial caste and propagate economic arrangements favorable to traditional privilege in the region, which African Americans were powerless to oppose. In retrospect, trying to understand Plessy in any fashion apart from Washington’s attempt at compromise leaves the Supreme Court looking like a body of racists and segregationists, which they most certainly were not. The real gist of Plessy has to be taken as a stamp of approval on Washington’s moderate bargain, which was neither a permanent endorsement of segregation (or even a marginal approval of Jim Crow) by the High Court, nor one hardened, southern segregationists ever intended to make good on forthwith. While it is clear “separate but equal” outlasted its efficacy by 1954, when the Supreme Court in Brown v. Topeka Board of Education declared racial segregation unconstitutional, it is prudent to view Plessy as a first step in the incremental transition of African Americans to eventual equality, even though entrenched southern resistance to any racial fairness has obscured the High Court’s motives. By 1943, for example, Georgia governor Ellis Arnall had initiated a series of civil rights reforms, which included the abolition of the state poll tax and revocation of the Ku Klux Klan’s corporate charter. Although he personally opposed social equality for nonwhites (Wexler 2003), Arnall’s progressive policies preceded a larger cultural and legal shift away from the impudence of Jim Crow. During that same year, race riots consumed the country in a fashion and intensity not seen again until the 1960s. Furthermore, public disdain of barbaric lynch mobs had already become a rallying point for the antilynching movement, and growing public discontent with overt segregation, both within and outside the South, gradually eased the heretofore ubiquitous threat of racial violence against African Americans. Unwilling to accept the idea of reformation, segregationists like Arnall begrudgingly retrenched and adopted modifications allowing traditional racist principles to flourish without any visible discrimination. With social backlash mounting against “the penal excess of the lynching spectacle” (Garland 2005:817), segregationist states turned to their criminal justice

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operatives. Status quo courts and juries harboring no affection for disenfranchised blacks legitimated criminal prosecutions and sentencing, which traditionally turned on (white) authorities’ initiative and enforcement preferences. What emerged as a manifest system of separate but equal social control quickly became a thinly veiled effort with latent functions fervently seeking to institutionalize black inferiority: “A new race-neutral language was developed for appealing to old racist sentiments, a language accompanied by a political movement that succeeded in putting the vast majority of blacks back in their place” (Alexander 2010:40). The South, in particular, removed itself from any movement toward egalitarianism, no matter how distantly integrated with the evolution of a national image based in universal equality. This reticence was not a matter of tacit resistance, but one of systematic, reactionary terrorism employed against anyone, black or white, who supported an institutional remaking of southern society. Such persistence, historian Eric Foner laments, reflects how “the old view retains a remarkable hold on the popular imagination, including the pernicious idea, of which one hears echoes of today, that expanding [or protecting] the rights and powers of blacks constitutes a punishment to whites” (Foner 2014:11). As US society progressed during the twentieth century and the movement for civil rights attained cultural legitimacy, overt acts of intolerance in the forms of miscegenation laws, restrictive covenants governing residential property, as well as employment and educational segregation, were eventually supplanted by a generalized form of institutional racism. Although explicit references to racial divisions were superficially replaced by official color blindness, race neutrality, and nominal equality, a predominant practice of crypto-segregation continued to thrive in convention and custom, underpinned by a near-unshakable ethos of separation and illusory African American inferiority. Where it became unacceptable for jurisdictions to enforce “black codes” and to disproportionately sanction African Americans and other undesirables through broadly applied, harsh criminal punishments, tactics emerged to effectively produce the same outcomes under the guise of due process and equal protection under the law. On a case-by-case basis, African Americans could be symbolically selected, particularly when linked to a white victim, thus reinforcing the racial order while the process performed was all clean and legal. Similarly, the guise of due process masked other attempts to systematically disadvantage and more harshly sanction African Americans, as well as other people of color. Researchers have definitively pointed out,

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via irrefutable empirical evidence, the devastating effects of a failed war on drugs “mostly directed at African-American and Latino citizens” (Miller 1996:1; see also Zimring and Hawkins 1995). Before declaring and initiating the War on Drugs in 1987, policymakers were well aware of the ruinous price of urbanization exacted on black and Latino communities, as well as the disproportionate effects of such a campaign on minorities (Helmer 1976). The same is true of similar de facto outcomes when one considers stop-and-frisk as a crime prevention policy (see Floyd et al. v. New York City et al. 2008) in urban situations or statewide actions such as stand-your-ground legislation (see State of Florida v. Zimmerman 2012) and their underlying, albeit inexplicit impact on minorities. One only has to recall how public discourse during the case of Florida v. Zimmerman focused on whether Trayvon Martin contributed to his own death by wearing a hooded sweatshirt, while notably absent was any discussion of whether African Americans should be adequately armed (e.g., exercise their Second Amendment rights) to legally defend themselves against aggressive confrontations. Clearly, stand-your-ground in Florida might be accurately interpreted, post–Florida v. Zimmerman, as validation of a well-armed position taken against so-called [black] hoodlums. The general tenor of policymaking and policy interpretations via the courts indicates de facto discrimination is indeed as devastating as Jim Crow.

Institutionalized Discrimination and Capital Punishment In some ways, surprisingly little institutional change has occurred since Jim Crow laws placed already disadvantaged African Americans at an outrageous social, economic, and political handicap by advancing the wholesale separation of the races. In place of “whites only” water fountains, separate entrances and seating areas, and segregated swimming pools, today there exists subtler segregation in the forms of all-white private clubs and schools, gerrymandered legislative districts, upscale residential areas pricing out underprivileged populations, and a justice system that disproportionately harms disenfranchised, poor, and racially devalued defendants. None of this is meant to suggest affluent whites are inherently racist and consciously part of some larger conspiracy to preserve black oppression. Rather, as a society we have been socialized to understand the problems of crime and disorder as the fault of poor and

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working-class people. In The New Jim Crow, Marissa Alexander explains how Ronald Reagan’s use of color-blind rhetoric successfully stoked white resentment without ever explicitly referencing race. To great effect, Reagan echoed white frustration in race-neutral terms through implicit racial appeals. His “colorblind” rhetoric on crime, welfare, taxes, and states’ rights were [sic] clearly understood by white (and black) voters as having a racial dimension, though claims to the effect were impossible to prove. The absence of explicitly racist rhetoric afforded the racial nature of his coded appeals a certain plausible deniability. (Alexander 2010:48)

The goal was to prey on racial hostility while disavowing the notion that race had any continuing relevance in US society. Whites have, by and large, accepted this version of reality. A 2013 NBC News/Wall Street Journal poll found that 59% of white respondents (as opposed to 19% of blacks) believe the United States is, to some degree, a color-blind society. Unsurprisingly, 71% of whites believe in the impartiality and fairness of the justice system, while across all ethnic groups confidence in and support for the justice system is approximately 57% (NOARC 2009). Yet, there is ample evidence penal and legal institutions function to protect whiteness by enforcing punitive sanctions on nonwhite offenders, all while Americans are socialized to associate blackness as evidence of criminality. Nowhere is the differential treatment of African Americans more evident than with capital punishment. An abundance of research demonstrates capital punishment applied to African Americans bears an ominous resemblance to Jim Crow–era executions (Zimring 2003), most indicative in the event of an African American killing a white person, which increases the probability of a death sentence more than sevenfold (Baldus et al. 1983). The resemblance is not merely cosmetic: The resulting harms not only affect sentencing of nonwhites and the poor, but point to an insidious array of disparate treatment and extralegal disenfranchisement via police, judicial, and penal institutions, up to and including capital punishment. These abuses have been propagated in the face of super due process and with broad support of white Americans, many of whom “become more supportive of the death penalty upon learning that it discriminates against blacks” (Peffley and Hurwitz 2007:996). Unlike vigilante lynch mobs of the past, state-sanctioned executions offer a legal veneer, in part because they rise out of ritualized legal pro-

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ceedings, while ultimate punishment is removed from public view. Symbolic phrases such as due process and equal protection under the law are used, and by their mere inclusion and association tend to legitimate a process historically flawed by racism and elitism. Yet the thin veil of legal trappings surrounding capital punishment policy, practice, and reform does not mask the persistent overrepresentation of nonwhite and poor defendants on death rows. John DiLulio’s (2005) suggestion that disproportionally high rates of African Americans arrested, prosecuted, convicted, imprisoned, and executed result from African Americans committing more crimes than whites is a striking denial of reality. In his assessment, African Americans are simply more prone to criminality. In truth, the prevailing power structure functions to produce a self-affirming narrative of the criminal justice system as equitable and fair, while doing considerable harm to those most vulnerable, namely racial minorities and the poor. The Baldus study made that fact undeniable. Hence, support for the death penalty cannot fully be explained by a reductionist argument attesting to its practical efficacy as a crime control strategy. An abundance of scholarly research concludes executions neither are a deterrent to crime, nor offer any benefit not already accomplished by long-term incapacitation. Nonetheless, supporters of capital punishment tend to “hold on to these preconceptions about the appropriateness of the death penalty regardless of all of the evidence and information that demonstrates the problems and injustices of this sanction” (Grimes 2010:182). In other words, support for capital punishment reflects powerful symbolic connotations about the appropriate ways to achieve justice and recalibrate the moral order, thereby rendering irrelevant those practical and empirical failings—or, at least, inconsistencies—that plague our death penalty. In his book Peculiar Institution, David Garland (2010) further contends capital punishment has become an emblematic lightning rod for traditional values and the need to uphold states’ rights. Today’s death penalty is deeply embedded in American political culture and casts a long shadow. The dramatic clash between federal courts and state legislatures—and, beyond that, the conflict between elite Northern liberalism and Southern popular conservatism— reshaped the meaning of capital punishment and repositioned the issue in a new political and cultural context. Furman’s unintended effect was to mobilize a pro–death penalty backlash, give new salience to the issue of capital punishment, and transform its polit-

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ical connotations. After 1972, the death penalty ceased to be a matter of public policy and became instead a symbolic battlefield— first in the “law and order” backlash against civil rights and later in the culture wars, functioning alongside issues like abortion, welfare rights, defendants’ rights, and affirmative action as a litmus test of political affiliation and cultural belonging. Support for the death penalty became a marker of respect for states’ rights and traditional authority; a respectable (that is to say, not openly racist) means of asserting that the civil rights movement had gone too far; and a vehicle for Southern resentment about interference by Northern liberals. It came to mean opposition to “moral decay,” to the decline of personal responsibility, and to the erosion of traditional authority that was widely believed to be the social legacy of the 1960s. Above all, support for the death penalty came to be short-hand for a political position that was “tough on crime” and assumed to be in tune with popular attitudes. (Garland 2010:253)

In that any cultural or ideological discussion of executions applies mainly to the southern states of the former Confederacy, the elements of religious and Old Testament values came to dominate. Lost is any appeal to the constitutionality of the state’s taking of human life or the Supreme Court’s mandate to protect and preserve it. Only Justice Blackmun, unlike his conservative contemporaries on the High Court, eventually saw the confluence of empirical fact (statistical analysis) and philosophic truth (the law) as a postulate of rigorous inception pointing to the ultimate mission of the judiciary—protecting the constitutional rights of the people. In articulating this point, the late federal judge and legal scholar Robert Bork noted the fundamental responsibility of courts is to “protect the things the Constitution tells it to protect,” and that “judges should very carefully try to follow the original intent of the Constitution and not be creating new rights or new powers in the Constitution” (Moyers 1987). A political conservative and staunch supporter of capital punishment, Bork believed that ruling on issues of constitutionality should be guided by judicial restraint, which he suggested is “neither liberal nor conservative,” and requires judges to “stick to the law as it was intended to be applied” (Moyers 1987). Bork’s point was clear: Judges are bound to protect the citizenry on constitutional matters, but not overstep their mandate in using the court to make political or ideological judgments, therein skewing the intent of the Constitution and the rights guaranteed therein. Bork viewed the decision in McCleskey v. Kemp as a failure of the High Court to fulfill its solemn duty.

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We may question whether the courts have upheld this directive when considering capital punishment, particularly in the aftermath of the Supreme Court’s ruling in McCleskey. In McCleskey v. Kemp, a five-member majority, including three Reagan appointees, ignored powerful statistical evidence of racial discrimination in death penalty sentencing in Georgia. It provides little solace to say, as Justice Powell did for the majority in the language of judicial restraint, that such “arguments are best presented to the legislative bodies.” The elected branches of government are not designed to be responsive to discrimination against political minorities unless, as developed during the enactment of civil rights legislation in the 1960s, majoritarian interests decide to provide protection for minorities. By contrast, the federal judiciary, with its life tenure and protected salaries for judges, is expressly designed to make independent decisions that uphold constitutional principles, such as Equal Protection, without waiting for majoritarian political interests to recognize and act to correct discriminatory harms. (Smith 1990:412)

In determining that capital punishment statutes should be evaluated by state legislatures despite overwhelming empirical data confirming extralegal racial factors influence sentencing outcomes in death penalty cases, the court vacated its primary responsibility to protect the constitutional rights of Americans. At the same time, McCleskey exemplifies how the use of death reflects a regressive, backward slide to a time when the states were relatively more autonomous and there was little constitutional throttle on their powers.

What Is to Be Done? When the High Court reinstated the death penalty as constitutional in Gregg v. Georgia (1976), it established a statutory template for any other state choosing to reinstitute capital punishment. To ensure only the most appropriate cases yield a death sentence, Georgia introduced trial bifurcation into guilt and penalty phases, statutory aggravating (and mitigating) factors providing jurors sufficient guidance “so as to minimize the risk of wholly arbitrary and capricious action” (Gregg v. Georgia 1976:189), an automatic direct appeal to the state supreme court, and a mandate for periodic proportionality review. Georgia legislators shrewdly

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chose to allay fears of discrimination by exploiting the nearly unregulated powers of circuit prosecutors in charging, penalty requests, and presentation of evidence in capital trials. Prosecutors were backed up by judges standing for popular election and/or appointed in a best-man system with all the attributes of entrenched southern whites in effect. The changes were deemed sufficient enough for Justice Potter Stewart to conclude, “the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance” (Gregg v. Georgia 1976). More than three decades later, the historical record clearly demonstrates Gregg changed the shape of capital litigation in Georgia. However, the state of Georgia has done little to eliminate the reality of institutional discrimination perpetrated against blacks and other devalued populations. The lack of careful regulation increased the likelihood that prosecutors would seek execution in such cases and juries would convict and sentence defendants to death. At this juncture in the legal history of the United States, some momentous decisions are in the offing. The United States has the highest incarceration rate of any nation and it appears imprisoning criminal offenders, even as a last resort, may be unsustainable. Immigration reform is a pressing issue that may require immediate wholesale changes in border protection and citizenship policies. Capital punishment, or the right of the state to deprive its citizens of life, is steadily becoming a vestige of the past, an unpopular and less frequently used sanction. As more and more states abolish capital punishment, whether because of mounting costs, inability to carry out a constitutionally acceptable execution, or the fear of executing an innocent person, one of the major underpinnings of its legitimacy will be gone. In 10 years (2006–2015), New York, New Jersey, New Mexico, Maryland, Connecticut, Illinois, and Nebraska have abolished executions. Never have so many states abandoned capital punishment in so short a duration. Among the minority opinions in Furman, Justices William Rehnquist and Warren Burger cited the fact that state legislatures—bodies they assumed were the most accurate reflections of the people’s will—approved of capital punishment, which by virtue of that endorsement should remain available to the states. As more states abolish executions, the nation will eventually reach a tipping point when it becomes abundantly clear more states are rejecting capital punishment than hoping for its retention. The federal government will be pressed to

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act. In that there are contentious pieces of legislation in New Hampshire, California, and Kentucky, and in 2015, Nebraska became the first traditional “red state” to abolish capital punishment since 1973, the country could reach that tipping point very rapidly.

Note 1. On the issue of political alliance between African Americans and devalued, lower-class whites, Wilson (1978) notes, “as long as poor whites directed their hatred and frustration against the black competitor, the planters were relieved of class hostility directed against them” (p. 54).

3 Revisiting McCleskey v. Kemp: A Failure of Sociological Imagination? Tony G. Poveda

HEN C. W RIGHT M ILLS (1959) WROTE ABOUT THE “ QUALITY of mind” that he designated as the sociological imagination (p. 5), he was theorizing how people learn to objectify themselves “upon an absorbed realization of social relativity” rooted in social structure and “the transformative power of history” (p. 7). Regarding capital punishment, this means people do not need to be African American to recognize that racism is a problem, nor that issues of race infect punishment and the justice system; they simply need to be aware of the structure and history of US society (e.g., black codes, lynching, incarceration rates, and so forth). The task of the sociological imagination, then, is to offer insight into how history and biography intersect with each other and with social structure. Mills therefore clearly would have understood the intellectual dilemma posed for the US Supreme Court by the facts in the McCleskey case and the Baldus study (Baldus, Woodworth, and Pulaski 1990). The dilemma entailed whether to link the discrete facts of Warren McCleskey’s death sentence to broader patterns of capital sentencing in Georgia during the 1970s. The linking of “private troubles” (McCleskey’s case) with “public issues” (Georgia’s capital punishment system), as Mills (1959) famously differentiated these two levels of analysis, is critical to understanding capital punishment as an institution deeply rooted in US history and culture. According to Baldus and his colleagues (1990), Georgia’s death sentencing system demonstrated systemic racial

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discrimination in homicide cases, especially in regard to race of the victim, but intentional discrimination in McCleskey’s case would have to be inferred from the general pattern. How the justices resolved this dilemma in McCleskey would have enduring implications for the issue of race and capital punishment for decades to come and, indeed, more broadly for the future of the death penalty itself. In this chapter, I examine how the Supreme Court justices responded to the statistical evidence of discrimination presented in McCleskey, and then consider the underlying assumptions in the legal theory the majority invoked in the McCleskey ruling. Finally, I consider the lasting impact of this court ruling, particularly how some key justices have revised their opinion of the death penalty, and what clues all of this offers for the future of the death penalty and its constitutionality.

The Baldus Study The Baldus study, as it was referred to in McCleskey v. Kemp, actually comprised two studies conducted by David Baldus, George Woodworth, and Charles Pulaski in the late 1970s and early 1980s. The Procedural Reform Study was designed to examine Georgia’s capital sentencing system before and after Furman v. Georgia (1972). The second study, the Charging and Sentencing Study (CSS), was undertaken in 1980 at the request of McCleskey’s appellate lawyers (the NAACP Legal Defense and Education Fund) to determine whether Georgia’s death sentencing system had reduced arbitrariness and discrimination in the post-Furman era (Baldus et al. 1990). It was this latter study, the CSS, that provided the primary basis for McCleskey’s claims of discrimination in his federal appeal at the US District Court (1984), the US Court of Appeals for the 11th Circuit (1985), and the US Supreme Court (1987). The principal finding of the Charging and Sentencing Study is that racial disparities existed in Georgia’s death sentencing, especially in relation to race of the victim. In homicide cases, the odds that a defendant would receive a death sentence (after controlling for level of aggravation and some 39 variables) were 4.3 times higher in white-victim cases than when the victim was an African American. These odds were even higher when the defendant was also African American. Moreover, the effect of victim’s race was greatest at the midrange of aggravation level and pros-

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ecutorial discretion was the main source of these disparities (Baldus, Woodworth, and Pulaski 1990; Baldus et al. 2009). The main source of data for the CSS study was records of the Georgia Department of Pardons and Paroles, and this was supplemented with questionnaires completed by lawyers and prosecutors along with other information from the Department of Offender Rehabilitation. The subjects of the study were 2,484 defendants arrested, charged, and convicted of homicide (murder or manslaughter) in Georgia between 1973 and 1979; 128 of these cases (5%) resulted in death sentences, including McCleskey’s case (Baldus, Woodworth, and Pulaski 1990). The findings from the CSS were originally submitted to the US District Court in Atlanta, Georgia, in support of McCleskey’s claim his death sentence was in violation of the 8th and 14th Amendments (McCleskey v. Zant 1984). In August 1983, Judge J. Owen Forrester conducted two weeks of hearings on the statistical studies and the data collection, hearing presentations by Baldus and his colleagues as well as two experts appointed by the state. When Judge Forrester ruled on McCleskey’s petition several months later, in February 1984, he rejected McCleskey’s arbitrariness and discrimination claims, with a lengthy and detailed critique of the Baldus study in his written opinion. Forrester called into question the accuracy of the CSS database, citing problems with coding procedures and limitations of the records themselves. He also concluded that the statistical models were not sufficiently predictive to support McCleskey’s claims. Additionally, Forrester raised the issue of multicolinearity of the variables and, in general, challenged the appropriateness and value of multiple regression analysis to the legal issues at hand. In sum, he found the Baldus study flawed and therefore not sufficient to support a claim of purposeful discrimination (McCleskey v. Zant 1984:94–95). In a subsequent publication, Baldus and his colleagues offered a comprehensive rebuttal to the District Court’s decision and its methodological criticism, maintaining “Judge Forrester either misread the record or simply misunderstood generally accepted standards of research methodology” (Baldus, Woodworth, and Pulaski 1990:450, Appendix B). Unlike the District Court, both the federal appeals court (11th Circuit) and the US Supreme Court assumed the validity of the Baldus study, but nonetheless rejected McCleskey’s claims. I examine more closely how the US Supreme Court responded to the Baldus study and to the challenge posed by its statistical evidence to death sentencing in Georgia.

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McCleskey v. Kemp: “Private Trouble” or “Public Issue”? Warren McCleskey was convicted in 1978 for the murder of a white police officer in Atlanta, Georgia. At sentencing, the trial court considered the aggravating and mitigating circumstances. No mitigating circumstances were offered, but two aggravating factors (murder during the commission of another felony and the killing of a peace officer) were sufficient for the jury to sentence McCleskey to death under Georgia law (McCleskey v. Zant 1984; del Carmen et al. 2005). The Baldus study, as noted earlier, was not offered into evidence until the case reached the federal appeals process, first at the US District Court (McCleskey v. Zant 1984) and then at the US Court of Appeals (McCleskey v. Kemp 1985), and rejected as insufficient to prove intentional discrimination at both levels. McCleskey’s claims of arbitrariness and racial discrimination in his death sentence were heard in oral arguments before the US Supreme Court in October 1986. The Oral Arguments Reviewed The main arguments presented on behalf of McCleskey by his attorney, John C. Boger, pertained to the persistence of race discrimination in Georgia’s administration of capital punishment. Baldus’s research showed a statewide pattern of discrimination in death sentencing in the 1970s. Boger emphasized that these contemporary patterns were a continuation of historical racial attitudes that preceded the Civil War. Although such attitudes were not explicit in statute (as they had been prior to the Civil War), they persisted in the minds of prosecutors and jurors (McCleskey v. Kemp 1986). Another important element of Boger’s presentation was his defense of statistical methods and analysis, which had been harshly criticized by Judge Forrester and the state in the District Court appeal. Boger argued that the state, rather than offering an explanation for racial disparities, attacked the evidence—the data sources and the statistical analysis of the Baldus study. Boger pointed out that the sources of the data were Georgia’s own official files (police reports, prosecutors’ statements, trial transcripts, and the Georgia Pardons and Parole Board). Additionally, he defended the coding procedures that Judge Forrester had challenged, and when questioned by the justices as to whether the District Court had been

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wrong in its appraisal, Boger affirmed, “I think it was clearly erroneous” (McCleskey v. Kemp 1986:3–9). Assuming the validity of the Baldus study, the justices questioned whether the evidence showed intentional discrimination against McCleskey. Boger argued that discrimination could be inferred from the statewide pattern revealed in Baldus’s research. Following up on this line of questioning, Chief Justice William Rehnquist asked, “Well, Mr. Boger, don’t you have to show that this particular jury discriminated?” Again, Boger’s response was that the evidence was indirect—through the wider pattern of racial disparities in death sentencing in Georgia—and that since jurors deliberate in secret and prosecutors do not need to explain their decisions, the reasons for a particular charging decision or death sentence are not a matter of record (McCleskey v. Kemp 1986:12–17). Finally, Justice Sandra Day O’Connor questioned Boger as to the remedy for these racial disparities, and what procedures are necessary to fix the problem. Boger pointed out that in Georgia, relative to other states, there was much more discretion among prosecutors and jurors. Georgia, he suggested, could do a better job limiting the special circumstances of capital crimes and establishing prosecutorial standards. Earlier in his argument, Boger had asserted that the procedures and safeguards approved in Gregg v. Georgia had not worked in Georgia (McCleskey v. Kemp 1986; Oshinsky 2010). Countering Boger’s arguments were those of Mary Beth Westmoreland, assistant attorney general of Georgia. Westmoreland emphasized flaws in the Baldus study, along some of the same lines as Judge Forrester, and questioned the applicability and appropriateness of such statistical evidence to this case. Specifically, she challenged Baldus’s classification of McCleskey’s case as midrange in aggravation level, arguing that the killing of a police officer in the course of an armed robbery warranted a higher level of aggravation (McCleskey v. Kemp 1986; Oshinsky 2010). Additionally, she argued the Baldus study did not show that there were factually similar cases to McCleskey’s in which the death penalty was not imposed. Indeed, Westmoreland maintained that one “cannot come up with two similar cases to compare; because each case is unique on its own individual facts” (McCleskey v. Kemp 1986:37). Westmoreland claimed that white-victim cases were more likely to involve death sentences than black-victim cases because they had more aggravating factors—not because of racial bias. Westmoreland went on to make a larger point in her critique of statistical techniques as they apply to this case: There were too

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many subjective factors in prosecutors’ and jurors’ decisionmaking that could not be quantified and, therefore, their decisions were not subject to multiple regression analysis (McCleskey v. Kemp 1986). In regard to the issue of purposeful discrimination, Westmoreland argued the Baldus study had failed to show intentional racial discrimination in McCleskey’s case: “There has been absolutely no indication that this jury and this prosecutor engaged in any type of intentional discrimination” (McCleskey v. Kemp 1986:39), and thus there had been no violation of the equal protection clause. In conclusion, Westmoreland accused the petitioner (McCleskey) of trying to indict the entire Georgia criminal justice system. Quite the contrary, she argued, “the Georgia death penalty system is working as it should work; is working as this Court anticipated it would in Gregg v. Georgia . . .” (McCleskey v. Kemp 1986:51). The Court’s Ruling In the majority 5–4 ruling, written by Justice Lewis F. Powell (joined by Rehnquist, Byron White, O’Connor, and Antonin Scalia), the Supreme Court rejected McCleskey’s 8th and 14th Amendment claims of arbitrariness and discrimination, as had the US District Court and the 11th Circuit Court of Appeals. Powell begins his analysis with the premise that the burden of proof falls on the defendant to show that decisionmakers (like prosecutors and jurors) in his particular case acted with purposeful discrimination (McCleskey v. Kemp 1987a). Although the court assumed the validity of the Baldus study, it also concluded that any inference of discrimination from statewide statistical evidence was “of doubtful relevance” (McCleskey v. Kemp 1987a:295). There were several reasons that Powell regarded Baldus’s research to be irrelevant. Central to his argument was the distinctive nature of the capital sentencing decision, which was not comparable to other areas of the law (like employment cases or jury selection) where the court had accepted statistics as evidence of discrimination. Capital cases involve many more variables, with each case having a unique combination of factors (McCleskey v. Kemp 1987a) and, therefore, not easily subject to quantification in statistics and to statistical analysis. Moreover, even though Powell conceded that the Baldus study showed “a discrepancy that appears to correlate with race,” he maintained that this did not constitute a “major systemic defect” in Georgia’s death sentencing system (McCleskey v. Kemp 1987a:312–313). Unlike in Furman (1972), the

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court held that statewide racial disparities in death sentences did not show a significant risk of racial bias to establish a constitutional violation (McCleskey v. Kemp 1987a). In support of McCleskey’s claim of purposeful discrimination by prosecutors and jurors, his appellate lawyers developed some historical background to Georgia’s justice system, going back to slavery and Georgia’s dual system of criminal law that differentiated between punishments for blacks and whites. Powell rejected this evidence on the basis that it was too remote to establish current intent: “Unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value” (McCleskey v. Kemp 1987a:298). Thus, Justice Powell and the court majority failed to see the relevance of the Baldus study to the facts of the McCleskey case. Whatever racial disparities existed in Georgia’s contemporary system of capital punishment, they were not of a systemic nature and Georgia’s racial past was too distant in time to be of significance. In the end, the court ruled that the Baldus statistical evidence was insufficient to support an inference of racial discrimination on the part of prosecutors and jurors. The Dissent Although the dissenters (William Brennan, Thurgood Marshall, Harry Blackmun, and John Paul Stevens) varied in their opinions, they opted for a more systemic, historical view of the problems of discrimination and arbitrariness in the administration of the death penalty in Georgia. Justice Brennan, for example, argued that rather than trying to impute motives to jurors or prosecutors in a given case, we should consider the sentencing system as a whole and the risk of arbitrariness or discrimination that it poses for defendants in the justice system—a view that the court had taken in Furman (McCleskey v. Kemp 1987a). Drawing upon data from the Baldus study, the dissenters pointed out that under Georgia’s capital sentencing system blacks who kill whites were sentenced to death 22 times the rate of blacks who kill blacks. Furthermore, prosecutors sought the death penalty for 70% of black defendants with white victims compared to only 19% of white defendants with black victims (McCleskey v. Kemp 1987a). In the dissenters’ view, these racial disparities documented an unacceptable risk of racial bias in McCleskey’s case. In addressing the historical evidence, the dissenting justices viewed Georgia’s heritage of racial discrimination as complementing the statis-

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tical evidence of the contemporary period: “Georgia’s legacy of a raceconscious criminal justice system, as well as this Court’s own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey’s claim is not a fanciful product of mere statistical artifice” (McCleskey v. Kemp 1987a:328–329). Furthermore, the dissenting justices pointed out that Gunnar Myrdal’s study (1944) of US race relations in the 1940s showed a continuing pattern of racism in the not too distant past. And, indeed, the court itself had struck down part of Georgia’s capital statutes three times in the 15 years preceding McCleskey, including in the landmark Furman v. Georgia (McCleskey v. Kemp 1987a). Justice Brennan maintained that “citation of past practices does not justify the automatic condemnation of current ones. But it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey’s evidence” (McCleskey v. Kemp 1987a:332). In their dissent, Justices Brennan and Marshall remained abolitionists, opposed to the death penalty in all circumstances. However, Justices Stevens and Blackmun took a more moderate view, arguing that accepting McCleskey’s claims would not necessarily end capital punishment in Georgia (or elsewhere). They believed capital statutes that targeted the most aggravated murder cases could still be applied in a race-neutral fashion (McCleskey v. Kemp 1987a; Liebman and Marshall 2006). The court, in its 1987 ruling, had moved away from seeing the death penalty as an institutional problem, unlike in Furman, when the majority of justices viewed capital punishment as deeply flawed. The court majority in McCleskey no longer viewed death sentences or executions in the context of a flawed system. The risk of arbitrariness and discrimination had become divorced from social structure and history. It was now rooted in individual decisionmakers in the justice system, not in the death sentencing system itself and certainly not in the history of capital punishment and race. Was this simply a failure in sociological imagination or was it a deliberate reluctance to link the death penalty to wider “public issues” of race and the justice system? Justice Powell and the majority recognized that McCleskey’s claims did have consequences for capital punishment in general and a potential for disrupting the entire criminal justice system, specifically in terms of other unexplained disparities in penalties, capital and noncapital (McCleskey v. Kemp 1987a; Alexander 2010; Baldus, Woodworth, and Pulaski 1990). The court chose not to question Georgia’s death sentencing system and instead limited itself to the facts of McCleskey’s case. The court majority’s sociological blind

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spot and historical amnesia can be attributed to the legal theory it applied in McCleskey. This theory was premised on certain ideological and political biases, reflecting an increasingly conservative Rehnquist court (Graines and Wyatt 2000). As we shall see, the court’s theory included assumptions inherent in the legal perspective, but others were specific to the court’s evolving equal protection jurisprudence.

Assumptions of the Court’s Legal Theory The Washington v. Davis Evidentiary Framework Baldus and his colleagues (2009) observed that the court in the 1970s had become less sympathetic to the systemic problems of the death penalty along with a less favorable view of statistical evidence that supports systemic discrimination. In Baldus’s view, the pivotal decision was Washington v. Davis (1976), in which the court rejected the claims of two African American applicants to the District of Columbia police force who had failed a written personnel test. The applicants claimed that the test was discriminatory not only because they failed, but also because a disproportionately high number of black applicants did so. The court, in a 7–2 majority, held that a test (or law) is not unconstitutional solely because it has a racially disproportionate impact. Absent evidence of purposeful discrimination, an inference of discrimination cannot be drawn from the disproportionate impact of the test (Washington v. Davis 1976). It was this evidentiary framework that the court adopted in McCleskey rather than the prima facie approach, in which statistical evidence of systemic discrimination is sufficient to infer intentional discrimination— unless the racial disparities can be explained by the state in terms of legal factors (Baldus et al. 2009). This “smoking gun” approach, as Baldus characterized it, established the court’s legal theory in equal protection cases and, in doing so, set an “unattainable burden of proof” (Baldus et al. 2009:240, 261). In McCleskey, this meant that proof of intentional discrimination required admission of intent on the part of prosecutors or jurors in his case, something that would be extremely difficult to obtain. Underlying the court’s rejection of the Baldus study and its adoption of the “smoking gun” approach in Washington v. Davis is a set of assumptions that work against an institutional view of capital punishment. Central to the court’s assumptions is the idea that the institutional prob-

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lem was fixed in Gregg v. Georgia (1976). In the Gregg ruling, the court backed away from an abolitionist position on the death penalty, holding that statutes that provide some guided discretion to jurors (aggravating and mitigating circumstances), a bifurcated trial procedure, and an expedited appeal process are constitutional insofar as they reduce some of the arbitrariness and capriciousness in sentencing and executions (Banner 2002; del Carmen et al. 2005; Oshinsky 2010). These reformist assumptions proved to be overly optimistic. Emphasis on Legal Procedures The Gregg ruling reflected a broader faith in legal rules and procedures in the tradition of the legal process school of jurisprudence, which became dominant in the Rehnquist court (Graines and Wyatt 2000). It is a belief that by scrupulously following due process we will invariably get the correct results. This faith in legal rules assumes that if criminal defendants are processed by all the appropriate procedures (Miranda warning, right to counsel, right to a fair trial, and so forth), then, in criminal procedure, we will get the correct verdict, guilty or not. Historically, the Supreme Court has focused on regulating criminal procedure, leaving the substance of criminal law to the legislature (Steiker 1997). Nowhere is the emphasis on process more apparent than in capital cases in which the defendant on appeal makes claims of actual innocence based on newly discovered evidence. Typically, in order to appeal a case, there must be some procedural violation; “innocence is not enough” (Dow 2005:116–134; see also Public Broadcasting Service 2000). If there are no procedural issues on appeal, the standard is very high for admitting newly discovered evidence to establish innocence, including time limits on when such evidence can be introduced. In Schlup v. Delo (1995), the court held that for any new postconviction evidence to be considered, it must be “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” (Hoffman 2009:461). This “excessive proceduralism,” as Hoffman (2009:451) called it, and the doctrine of finality—the reluctance to reopen settled cases (Scheck, Neufeld, and Dwyer 2001)—are deeply embedded in the US justice system. Similarly, in Gregg, the court believed the problem of administering capital punishment fairly could be solved by providing additional procedural safeguards, which came to be known as “super due process”

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(Bohm 2007:68). These extra measures in capital cases were consistent with the “death is different” principle first articulated by Justice Brennan in Furman v. Georgia (Bohm 2007:67). The belief that the post-Gregg guided discretion statutes would reduce arbitrariness and discrimination in death sentencing was an untested article of faith. Thus, both Furman and Gregg established the legal parameters for the death penalty in the modern era, but meanwhile the institution of capital punishment remained intact as executions resumed in the United States in 1977 (Banner 2002; Garland 2010; Poveda 2009). Case Law Assumptions and the Mens Rea Requirement Also working against a more institutional view of capital punishment in McCleskey is the traditional case law approach that is involved in judicial review. In case law, unlike statutory law, constitutional issues are applied to the facts of a particular case in order to arrive at a ruling (Inciardi 1987; Rush 2003). Moreover, the judicial ruling itself is always “qualified by the particular facts of the case in which they are used” (Wingersky 1958:54). How the facts of a given case are similar to or different from previous, or subsequent, cases is critical to establishing precedent and the legal principle of stare decisis. As we saw in McCleskey, although the court was confronted with evidence of systemic discrimination (the Baldus study), it opted for a legal theory (the “smoking gun” approach) that viewed that evidence as irrelevant. The relevant factors pertained to what specifically happened in McCleskey’s case, including the actions and intentions of prosecutors and jurors. Neither the outcome of McCleskey’s case (death sentence) nor the outcome of the 2,483 other homicide cases in Georgia, 1973–1979, were relevant to the court’s ruling: “To the Supreme Court, an equal protection violation occurs in the mind and heart of the decision-maker in the process of deciding, not in the effects that decisions have in the world” (Steiker 1997:706). And this brings us to yet another assumption in the court’s legal theory: the intent requirement. Necessity for a mental element, the mens rea, in the commission of a crime is a long-standing requirement of the criminal law, at least going back to common law (Gardner 1985; Wingersky 1958). The basic concept requires a wrongful act must be accompanied by a wrongful intent. The court has extended this principle to its equal protection jurisprudence, requiring a government action with a discriminatory impact must

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also be intentional or purposeful. Evidence of racial disparities in the justice system is not sufficient to demonstrate discrimination under the court’s legal theory, stemming from its Washington v. Davis ruling. Lawrence (1987:318; 2008) challenged this “doctrine of discriminatory purpose,” maintaining race bias is not always at a conscious level of awareness. Drawing upon Freudian theory and cognitive psychology, he argued that the court’s equal protection doctrine should recognize unconscious racism: “Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional . . . nor unintentional . . .” (Lawrence 1987:322). Those decisions are informed by a common culture and history that itself was (is) embedded with racial attitudes and beliefs. By limiting racial discrimination to only intentional or conscious racism, we are adopting a very skewed definition of racism, which in effect legitimizes institutional discrimination. The several assumptions (procedural emphasis, case law approach, and intent requirement) that we have noted, which underlie the court’s legal theory in McCleskey (and Washington v. Davis), do not bode well for restoring a more institutional view of capital punishment and developing a more expansive concept of racism in the justice system. These assumptions favor process over substance (and structure), a case approach over a systems approach, and the intentions of government actors over the impact of their decisions. The McCleskey ruling not only foreclosed on the issue of race by establishing an inordinately high standard of proof for discrimination (Alexander 2010), but also halted legal discussion on the death penalty itself by maintaining a blind spot to systemic problems in the administration of capital punishment. Judicial Second Thoughts In spite of the Supreme Court’s shift away from an abolitionist position on the death penalty, first in Gregg and later in McCleskey, there are indications that some Supreme Court justices have had serious second thoughts about those rulings, including their own positions in those cases (Dieter 2011). An examination of these judicial second thoughts may offer some insight into the evolution of the court on these issues and the future of capital punishment itself. Perhaps most noteworthy was Justice Lewis Powell’s turnabout on the death penalty. Powell, of course, wrote the majority opinion in McCleskey,

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having previously dissented in Furman and sided with the majority in Gregg. In Furman, Powell had argued for judicial restraint and, like the other three dissenters, believed the death penalty was a matter for state legislatures to decide (Oshinsky 2010). In Gregg, Powell occupied the centrist position on the court (along with Justices Stewart and Stevens), accepting the constitutionality of the death penalty but recognizing that it needed some major procedural improvements (Jeffries 1994; Oshinsky 2010). After his retirement from the court, in 1988, Powell was asked by Chief Justice Rehnquist to chair a committee on federal habeas corpus in capital cases. Powell’s committee saw the problem in terms of unnecessary delays in executions, repetitious litigation, and a lack of finality in capital cases (US House of Representatives 1990). Yet three years later, in the summer of 1991, Powell was asked by his biographer whether he would change his vote in any case. His answer: “Yes, McCleskey v. Kemp” (Jeffries 1994:451). In elaborating, Powell said, “I have come to think that capital punishment should be abolished” (Jeffries 1994:451). In the years following Gregg, Powell had become disillusioned with how capital punishment was being administered, that it had brought “discredit on the whole legal system,” and, by 1991, realized that it was “a failed experiment in judicial lawmaking” (Jeffries 1994:452–453). Paralleling Powell’s second thoughts were those of Justice Harry Blackmun, which he voiced in his dissent in a Texas death penalty case, Callins v. Collins (1994). Like Powell, Blackmun had dissented in Furman and joined the majority in Gregg. But, unlike Powell, he had dissented in McCleskey. In his Callins opinion, Blackmun spoke of his 20-year struggle, along with the court majority, to craft rules and procedures to achieve fairness and consistency in the administration of capital punishment. By 1994, he reluctantly concluded that “I no longer shall tinker with the machinery of death,” and that he was ready “to concede that the death penalty experiment has failed” (Callins v. Collins 1994:1145). As a new member of the court in 1976, Justice John Paul Stevens joined with the majority in Gregg, believing that additional procedural safeguards would make for a fairer and more rational system of capital punishment (Liptak 2010). And, as previously noted, Stevens dissented in McCleskey, retaining the belief that the death penalty could still target the most aggravated murders in a race-neutral manner (Liebman and Marshall 2006). By 2008, however, in his concurring opinion in Baze v. Rees (which upheld the Kentucky protocol for lethal injection), Stevens used the opportunity to renounce the death penalty itself. Quoting from an ear-

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lier opinion of Justice White, Stevens concluded that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose,” thereby making that punishment cruel and unusual (Baze v. Rees 2008:86). Stevens’s explanation for his serious misgivings about the court’s evolving capital punishment jurisprudence was expressed two years later, following his retirement. He believed the court had betrayed the promise of Gregg in a series of decisions that reintroduced arbitrariness and capriciousness in capital cases. In these decisions, the court enlarged the category of deatheligible offenses (felony murder), authorized jury selection procedures that were more death qualified, and reversed itself on the admissibility of victim impact statements (Greenhouse 2010; Stevens 2010, 2011). Finally, yet a fourth member of the Rehnquist court publicly expressed serious concerns about capital punishment. In a speech to Minnesota Women Lawyers in Minneapolis in 2001, Justice Sandra Day O’Connor noted, “serious questions are being raised about whether the death penalty is being fairly administered in this country” (Baca 2001:1A). She was concerned about the increase in executions since she joined the Supreme Court in 1981, and with the growing number of exonerations, 90 since 1973 (Baca 2001:1A). O’Connor’s remarks were significant because it is unusual for a sitting Supreme Court justice to speak publicly on such matters (she retired in 2006). Moreover, she was considered to be a moderate on the court, but often sided with conservatives in death penalty cases, including in McCleskey. But, as Justice Stevens pointed out, the overall court shifted to the right during this period with “personnel changes” in which liberal members were replaced by more conservative ones (Stevens 2010). The common denominator in these judicial second thoughts is that of a waning optimism in the promise of Gregg, that procedural safeguards (super due process) could fix the arbitrariness and discrimination that the majority in Furman believed characterized capital punishment in the United States. The American Bar Association’s call for a moratorium on executions in 1997 similarly reflected this realization of the procedural failure of the court’s capital punishment jurisprudence (Sarat 1998). The Future of the Death Penalty in America The judicial second thoughts registered by several former Supreme Court justices suggest that the legal theory in McCleskey, along with the opti-

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mism of the court in Gregg, is vulnerable and subject to reconsideration— at least by more moderate members of the court. Powell, Blackmun, and Stevens explicitly conceded the failure of the court’s experiment with capital punishment in the post-Gregg era. Their concession was also a challenge to the legal process school of jurisprudence. As Blackmun stated in Callins, “It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies” (Callins v. Collins 1994:1145). And, as Sarat (1998) noted, Blackmun’s realization represented a new kind of abolitionism, one that argues that capital punishment is incompatible with fundamental legal values—and not a frontal assault on the morality of the death penalty itself. These judicial second thoughts are also a belated acknowledgment that death sentences and executions cannot be understood apart from the system that administers those punishments or from the history of race and capital punishment. This institutional view of the death penalty was a casualty of the post-Gregg era and, of course, was emphatically rejected by the majority in McCleskey when the court adopted the “smoking gun” approach of Washington v. Davis. In addition to the voices of a few, but influential, Supreme Court justices, a substantial body of evidence has accumulated demonstrating the persistence of racial disparities and arbitrariness in the administration of capital punishment. This research, not unlike the Baldus study, shows this pattern has continued to the present in spite of the super due process of the last 35 years (Amnesty International 2003; Baldus and Woodworth 2003; Bohm 2012; Dieter 2011; Gross and Mauro 1984; US General Accounting Office 1990). In Dieter’s (2011) review of the evidence, he concludes that arbitrariness is still evident and that “race, geography, money, politics, and other arbitrary factors exert a powerful influence in determining who is sentenced to death” (p. 28). And drawing from his experience in defending death row inmates since 1988, Dow (2005) makes a similar point: Arbitrariness is still the norm and it is inherent in the use of the death penalty. Although individual states can legislatively abolish capital punishment, as New Jersey (2007), New Mexico (2009), and Illinois (2011) have done in recent years (Death Penalty Information Center 2011), the death penalty will remain constitutional until a majority of the Supreme Court view it as inherently flawed and as a failed constitutional experiment. This will, however, require a paradigm shift in the court’s equal protection ju-

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risprudence, including a rethinking of legal process theory. Only when the “private troubles” of individual capital cases become linked to the “public issues” of capital punishment and its history will such a transformation occur. If, and when, the court restores an institutional view of the death penalty, the Baldus study may yet be vindicated and evidence of systemic racial disparities will again be considered relevant.

4 McCleskey and the Lingering Problem of “Race” Ross Kleinstuber

N F URMAN V. G EORGIA , THE S UPREME C OURT RULED THAT THE AR bitrary and capricious nature of the death penalty as it was being administered in Georgia at the time violated the US Constitution. In response to this ruling, many states enacted “guided discretion” sentencing statutes that they thought might pass the court’s muster. Although each state structured its sentencing guidelines a little differently, the basic idea is that states limit who is eligible for the death penalty by enumerating certain factors—known as statutory aggravators—that need to be present to make a convicted killer death eligible (e.g., the murder occurred during the commission of a felony or the victim was a police officer). After a defendant is convicted of first-degree murder, the trial progresses to a sentencing phase where the jury first has to determine if any statutory aggravators were present. If none are found to exist unanimously and beyond a reasonable doubt, the defendant is not eligible for the death penalty (Ring v. Arizona 2002). If at least one of these statutory aggravators is present, however, the fact-finder would be given rules for considering both aggravating and mitigating factors to determine if the defendant should be sentenced to death. The rules differ by state, with some states requiring jurors to weigh aggravation against mitigation, and other states determining the sentence based upon jurors’ responses to a specific question or questions. In either case, the goal was to provide sufficient guidance for jurors’ use of discretion. Four years after Furman v. Georgia, the High Court ap-

I

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proved these guided discretion statutes and reauthorized the use of capital punishment because it believed that these laws would eliminate the arbitrariness identified in Furman (Gregg v. Georgia 1976). The McCleskey case exposed the flaws in the court’s logic. Through the sophisticated and detailed statistical analysis of David Baldus, Charles Pulaski, and George Woodworth, Warren McCleskey’s defense attorneys presented compelling evidence that Georgia’s death penalty was operating in a manner that disadvantaged black defendants and those who killed white victims. The court accepted the conclusions of the Baldus study, but determined they were not relevant because McCleskey could not prove that he personally suffered discrimination: “[T]o prevail under the Equal Protection Clause, McCleskey must prove that the decision makers in his case acted with discriminatory purpose” (McCleskey v. Kemp 1987a:292). This “individual actor” view of discrimination reflects a widely held perception of how racism operates in post–Civil Rights America. Yet the findings of the Baldus study are not an anomaly, nor are they restricted to the South. Since the McCleskey decision, racial discrimination in the application of the death penalty has been documented nationwide, suggesting that racial discrimination is systemic, rather than individual, in nature (Grosso et al. 2014), and examinations of capital juror behavior confirm this conclusion (Bowers, Fleury-Steiner, and Antonio 2003).

The Death Penalty: Still Discriminatory Statistical Evidence of Discrimination Since the Baldus study was cited in McCleskey, scholars have documented the systemic and wide-ranging impact of racial discrimination in capital charging and sentencing decisions in the United States. Since 1990, there have been at least 36 empirical studies of discrimination in capital charging or sentencing decisions performed in at least 21 states, the federal system, and the US Armed Forces courts; all but four of them found that death sentences are more likely when the victim is white, the defendant is black, or both (Grosso et al. 2014). These studies demonstrate the widespread nature of discriminatory capital sentencing outcomes and call into question the ability of the death penalty to be administered fairly and without arbitrariness. They highlight the problems inherent in any capital sentencing scheme created in a society that

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remains highly stratified by race, and thus have helped to bolster one of the most convincing empirical arguments against the death penalty. Yet, the McCleskey decision tells us that none of this evidence matters because empirical research, by its very nature, can identify sentencing disparities but is unable to determine if a specific defendant suffered discrimination by specific actors in a specific case. This nearly impossible burden of proof fails to recognize the nature of racial discrimination in the twenty-first century or the disadvantages experienced by typical (but by no means all) minority defendants throughout their lives. The contemporary criminal justice system’s well-documented differential treatment of poor blacks cannot typically be understood as the result of overt discrimination, as in other historical periods, but rather as the function of the dominant group’s normative expectations of poor blacks as dangerous, lawless, or immoral. (FleurySteiner 2004:4)

The problem is not that most people are purposefully racist, but rather that US culture tends to reproduce and perpetuate stereotypical representations of minorities (especially African Americans and Hispanics) as “threatening” (Alexander 2010; Beckett and Sasson 2004; Bonilla-Silva 2010; Giroux and Pollock 2010; Glassner 1999; Scheingold 1984; Shapiro et al. 2009). Consequently, no single individual is immune from being influenced by deeply entrenched and highly racialized cultural labeling of nonwhites as criminals, regardless of whether or not their conscious thoughts or actions reflect an intention to discriminate. This fact becomes particularly salient when the justice system grants actors wide discretion, such as when prosecutors decide to seek capital punishment or when jurors impose a death sentence. Jury Studies of Unequal Application Although it has not been empirically demonstrated why prosecutors are more likely to charge nonwhite defendants and those accused of killing white victims with a capital offense, empirical studies of capital jurors suggest that institutionalized forms of discrimination and subconscious stereotypes are significant in affecting their decisions (and thus probably also play a role in the prosecutors’ decisions). Numerous studies from the Capital Jury Project (CJP), which are based on interviews with former jurors about their experiences serving on a capital jury, have documented

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that institutional impediments and cultural stereotypes affect the outcomes of cases without anyone deliberately intending a discriminatory outcome (Bowers, Fleury-Steiner, and Antonio 2003; Bowers et al. 2014; Bowers, Sandys, and Brewer 2004; Bowers, Steiner, and Sandys 2001; Brewer 2004; Fleury-Steiner 2004). For example, the presence of five or more white male jurors “dramatically increased the likelihood of a death sentence” in cases with a black defendant and white victim, whereas the presence of a single black male juror substantially reduced the likelihood of a death sentence (Bowers, Steiner, and Sandys 2001:193). Furthermore, white jurors are less receptive to mitigating evidence in black defendant/white victim cases, and far more likely than their black counterparts to support a death sentence during the guilt phase, after sentencing instructions, and when casting their first sentencing vote (Bowers, Sandys, and Brewer 2004; Bowers, Steiner, and Sandys 2001). In fact, jurors who are the same race as the defendant are more receptive to mitigating evidence than jurors who are of a different race than the defendant (Brewer 2004). These studies all suggest the racial composition of the jury, defendant, and victim influences sentencing outcomes regardless of whether jurors have any explicit racial animus. Some attribute these findings to culturally constructed images of minorities as menacing; hypersegregation that impedes cross-racial interaction; and the social, cultural, and socioeconomic distance between white jurors and minority defendants or victims, which renders white jurors unable (or unwilling) to understand the lived experiences of the hardships endured by nonwhites (Fleury-Steiner 2004; Haney 2004). Thus, they are not as likely to comprehend the relevance of the most poignant mitigating circumstances poor minorities have to offer (Haney 2004), nor are they likely to feel as personally threatened by the murder of someone who is not white. As Brewer (2004:543) suggests, the “subconscious attributions of behavior and a fundamental misunderstanding of the lives [led] by many capital defendants” may play a greater role than “nefarious forces such as overt prejudice” in determining racial variations in capital sentencing.1

How McCleskey Ensures the Death Penalty Remains Arbitrary Although the Supreme Court ruled in Gregg that guided discretion statutes would eliminate the haphazard application of capital punishment, the stud-

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ies discussed above demonstrate that the death penalty remains capricious and arbitrary. Part of the reason things have not changed is that race is still a salient feature in US society; discriminatory outcomes are the result of numerous social processes in this society—such as media stereotyping and highly segregated neighborhoods—that no single individual is able to control and that existed long before the court issued its ruling in McCleskey. By adopting the dominant cultural narrative of racism as only existing in “individual acts of meanness” (McIntosh 1988:3), and thus requiring an act of overt discrimination to prove the existence of discrimination, the court endorsed what is known as a “color-blind” view of equal protection that denies the relevance of race and assumes that all defendants enter the courthouse on equal footing unless there is some explicit and identifiable act of racial animus. In so doing, the court overlooked race and racism as social processes, and therefore exacerbated the problem of institutional discrimination in the justice system by (1) failing to ensure that mitigating circumstances—which are more likely to be present in the lives of the poor and minorities—receive proper consideration and (2) ensuring that nonwhite defendants are more likely to accumulate legally relevant aggravating circumstances even when their behavior is identical to their white counterparts. These oversights ensure that any judicial effort to reduce discrimination in the death penalty (or in the justice system as a whole) is doomed to failure. Structural Mitigation, Capital Jurors, and Disparate Impact In McCleskey, the court suggested that only individual actions matter and that external social conditions are not relevant for assessing outcomes; as long as no one intended to purposefully discriminate against McCleskey. The fact that he was disadvantaged is not legally relevant. This rationale is especially problematic when it comes to mitigating evidence because some of the most potent mitigating factors that capital defendants have to offer—such as poverty, failing school districts, neighborhoods prone to crime and violence, and so forth—do not result from the identifiable intent of anyone. Although the court has recognized the importance of mitigation when it comes to determining sentences (California v. Brown 1987; Eddings v. Oklahoma 1982; Penry v. Lynaugh 1989; Tennard v. Dretke 2004; Woodson v. North Carolina 1976), the legal reasoning of the majority in McCleskey contradicts these rulings and impedes the ability of courts to ensure that jurors give

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proper consideration to mitigating factors that do not have a direct nexus to the crime. Mitigation has been a lynchpin of capital jurisprudence since the reauthorization of the death penalty in 1976; the Supreme Court has repeatedly held that mitigation is crucial to the rational and fair application of the death penalty. In Woodson v. North Carolina (1976:304), the High Court recognized there are “diverse frailties of humankind” that are relevant to sentencing because they supposedly provide fact-finders with the necessary information to exercise the guided discretion that the court in Gregg v. Georgia argued would alleviate the arbitrariness of the US death penalty. Through the presentation of mitigating factors, capital penalty trials are supposed to offer a “thickly contextual social biography” that can help to show the defendant as a human being acting within a social context that influences his (or, rarely, her) decisions. In other words, mitigation is designed to offer an understanding of how or why factors outside the control of the defendant may have impacted how he or she acted in the given circumstances (Cheng 2010:39). Additionally, in Eddings v. Oklahoma (1982), the court ruled that sentencing juries are not permitted to “refuse to consider, as a matter of law, any relevant mitigating evidence” and that there are “virtually no limits” on what is to be considered relevant mitigation (p. 114). Subsequent rulings specified that relevant mitigation included things like a disadvantaged background (California v. Brown 1987; Penry v. Lynaugh 1989), and in Tennard v. Dretke (2004), the court very explicitly stated that there does not need to be any direct connection between the crime in question and the proffered mitigation. In ruling that institutionalized or systemic bias in Georgia’s capital sentencing did not rise to the level of constitutional relevance in McCleskey, the Supreme Court adopted a highly individualistic view of harm causation, suggesting that harms can only come from specific actors acting with deliberate intent rather than from objective social conditions. Of course, the Supreme Court did not invent this person-centric perspective on human behavior. The idea of “individual responsibility” has deep roots and is widely accepted in American culture and the US legal system (Dunn and Kaplan 2009; Haney 1982; Scheingold 1984). Indeed, this “rational choice” model of human behavior, which posits that people consider the costs and benefits of their behaviors before taking action, is often the default explanation used by most Americans to understand a wide range of social problems (Dunn and Kaplan 2009), including both crime and racial discrimination. It was in this cultural and

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historical context that the court made its decision in McCleskey and thus gave legitimacy to a color-blind worldview of race and equal protection. It is important to understand that this view of behavior is not necessarily wrong. Humans can weigh the pros and cons of their actions and make decisions accordingly. The problem, however, is that a strict rational choice model directly contradicts the court’s jurisprudence on mitigation because it fails to take into account the wide range of social, historical, cultural, economic, and political factors that affect humans’ perceptions of their worlds. Such a perspective impairs one’s ability to think about social problems in a sociologically informed manner. Consider that jurors tend to enter the courtroom with an individualistic worldview that only gets reinforced during the guilt trial, where they are bombarded with evidence of the defendant’s wrongdoing absent any opportunity to humanize him or to place his behavior into the larger context of his life (Haney 2005). Warren McCleskey’s own case was wrought with compelling mitigation, the least of which was his impoverished youth and violent upbringing. The violence was terrifying and never-ending. About every weekend, someone in the neighborhood was shot and killed. Fights all the time. A dog-eat-dog world where only the strong survive. . . . My childhood was very rough. Very, very poor. . . . The hardest was the violence we grew up in as a family. It was a skid-row type neighborhood in Marietta. We sold white lightning out of our house. In 1963, my stepfather threatened to kill my mother. Out of fear, she grabbed a pistol under a mattress in the living room and shot it several times. I walked in the door seconds later, and he was dead. (Atlanta Journal and Constitution 1991:A12; Curriden 1991:A1)

Considering the greater likelihood of poor and minority defendants like McCleskey experiencing “structural mitigation”—that is, mitigating circumstances that are “structured into [defendants’] social histories by the nature of the society into which they have been born” (Haney 2004:1558) rather than directly connected to the specific crime in question—racial minorities and the poor are disadvantaged in a way that ensures the death penalty is more likely to be meted out against them. This outcome does not necessarily occur because jurors are acting with any deliberate racial intent; rather the McCleskey ruling suggests that these disadvantages faced by poor and minority defendants do not matter.2 So, on the one hand, the court has insisted that conditions that are external to the individual are relevant for determining if a defendant lives or dies, but on

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the other hand, it has said those same conditions are not relevant for determining if that same defendant experienced racial discrimination. Institutional Discrimination and the Accumulation of Aggravating Factors Craig Haney notes the scholarship on death penalty discrimination actually understates the problem because bias begins long before capital defendants find their way into a courtroom and rarely takes the form of overtly hostile acts. Rather, discrimination in post–Civil Rights America is more often the result of institutional discrimination and subtle, often subconscious, differences in treatment. Beyond the structural realities that expose the poor and racial or ethnic minorities to more criminogenic social forces and thus lead to more involvement in violent crime, there are also a whole host of other institutionalized disadvantages that ensure they are more likely to accumulate criminal histories and other aggravating circumstances even when their behavior is the same as (or similar to) their white counterparts. In short, racial minorities are more likely to be arrested (even if innocent), charged, and convicted (even if innocent), and upon conviction more likely to be sent to prison and for longer periods of time. For example, the law tends to criminalize the harmful behaviors of the poor and racial minorities while permitting the injurious conduct of wealthy whites (Barak, Leighton, and Cotton 2015; Reiman and Leighton 2013). This phenemonon is probably most obvious in the different penalties that are attached to powder and crack cocaine. From 1986 to 2010, 5 grams of crack triggered the same mandatory minimum penalty as 500 grams of powder; in 2010, Congress raised the limit on crack to 28 grams before the mandatory minimum kicked in, thus reducing the disparity from 100-to-1 to 18-to-1 (CBS News 2010). However, it can also be seen in the policies enacted to deal with drunk driving as compared to “street” drugs (Alexander 2010), or in how the law treats injuries and deaths sustained by unsafe working conditions as compared to assaults or homicides (Reiman and Leighton 2013). The point is that suspected black law violators are more likely to come to the attention of law enforcement, and since police officers are not immune to this racial socialization, they often exercise their discretion in a discriminatory fashion, devoting more resources to uncovering crime in predominantly minority areas, requiring less probable cause to stop or search blacks and Hispanics, and needing less suspicion or provo-

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cation before arresting or using force against them (Alexander 2010; Harris 2002). For example, police are more likely to stop and search black motorists even though they are no more likely to violate traffic laws and are less likely to be found with contraband in their vehicles (Harris 2002), and studies of New York’s stop-and-frisk program have discovered that African Americans—especially young black males—are stopped with greater frequency than whites even though these searches are less likely to discover drugs or illegal weapons (New York Civil Liberties Union 2014; New York State Office of the Attorney General 1999). Furthermore, police in Seattle tend to focus their drug enforcement on a specific downtown drug market that is predominantly black despite the fact that citizen complaints about drug dealing are more frequent in other areas of the city (Beckett, Nyrop, and Pfingst 2006; Beckett et al. 2005). Ultimately, this means more innocent blacks and fewer guilty whites will be arrested. Thus, despite the fact that whites are slightly more likely to use or sell drugs than blacks, black men are sent to state prison on drug charges at 13 times the rate of white men (Alexander 2010). Once arrested, poor and nonwhite defendants face additional burdens. Because being released prior to trial is usually contingent on being able to afford monetary bail and members of minority groups typically have less wealth than whites, they are more likely to be detained prior to trial, a fact that benefits white defendants down the road. Pretrial detention results in greater pressure to plead guilty and renders defendants less able to assist with their defense or to prove they can abide by the rules upon release. Therefore, they are more likely to be convicted (even if they are innocent) and receive custodial sentences, which typically are greater in length than for those who are released awaiting trial (Sacks and Ackerman 2014; Williams 2003; Zeisel 1979). Progressing to prosecutorial decisionmaking, things get even worse for nonwhites. Prosecutors can decide when and against whom to file and dismiss charges, and these decisions are not typically reviewable. Prosecutors have been found to be more likely to file more severe charges and to more often seek the death penalty when the defendant is black and when the victim is white (Davis 1998, 2007; Frohmann 1997; Keil and Vito 2006; Paternoster and Brame 2008). Finally, numerous studies have found that poor, young black and Hispanic men are also treated more harshly at sentencing (Bushway and Piehl 2001; Engen et al. 2003; Kansal 2005; Kempf and Austin 1986; Spohn and Holleran 2000; Steffensmeier and Demuth 2000; Steffensmeier, Ulmer, and Kramer 1998).

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When considering all of these small (and at times imperceptible) differences that accumulate throughout the justice system, it becomes evident that the state exerts its power disproportionately on the poor and on racial and ethnic minorities, especially African Americans and Hispanics. Nearly one in three black men and more than one in six Hispanic men will go to prison at some point during their lives (Bonczar 2003), and according to the most recent figures, 2.8% of all African American males are currently serving at least a one-year prison term (Carson 2014). The sentenced offender rate for African American males is more than 6 times higher than it is for white males, and it is more than 2.4 times higher for Hispanic males than for white males (Carson 2014). In the words of Haney (2004), “unless one is prepared to defend the indefensible proposition that” these groups are somehow innately disposed to crime and violence, these statistics indicate the powerful impact institutional discrimination and exposure to criminogenic social conditions has on members of socially disadvantaged groups (p. 1560).

Conclusion Law professor Anthony G. Amsterdam famously referred to the McCleskey ruling as “the Dred Scott decision of our time” (Liptak 2008). It is hard to argue with this conclusion. By ruling that McCleskey’s attorneys needed to “prove that the decision makers in his case acted with discriminatory purpose” (McCleskey v. Kemp 1987a:292), the court in McCleskey validated the conception that racism only exists when there is an identifiable individual racist and thus dramatically affected the ways by which courts are able (or unable) to grapple with race and racism in the United States. The reverberations of this decision extend well beyond capital sentencing decisions and the criminal justice system. As Michelle Alexander (2010) notes, “once the Court’s opinion was released . . . it became clear the case was about much more than the death penalty. The real issue at hand was whether—and to what extent—the Supreme Court would tolerate racial bias in the criminal justice system as a whole” (p. 107). In McCleskey, the Supreme Court effectively reasoned that equal protection of the law is not denied unless an overtly racist actor has been identified and personally tainted a case. However, the discriminatory out-

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come of the death sentencing process is not necessarily the work of racist judges, jurors, prosecutors, or police officers. Rather, as this chapter has shown, the underlying problems with capital punishment are systemic; they are inherent in the death sentencing process (and in the larger justice system) and cannot be cured. By refusing to acknowledge discrimination as a social process that can be caused by external social conditions beyond the control of any one individual, the McCleskey decision inherently endorsed a view of human behavior that contradicts the court’s own jurisprudence on mitigation and thus makes it difficult for courts to ensure that jurors understand, utilize, and apply the concept of structural mitigation. The McCleskey ruling tells us that only individual actions and purposeful discrimination matter (see Washington v. Davis 1976 for discussion of purposeful discrimination and equal protection), but mitigating circumstances often involve environmental influences and preexisting social circumstances (American Bar Association 2008; California v. Brown 1987; Cheng 2010). Considering that judges and capital jurors are overwhelmingly affluent whites and have little direct experience with the pernicious influence of institutionalized disadvantage, the failure of courts to ensure that structural mitigation receives proper consideration disadvantages poor and minority defendants. Beyond capital sentencing, the impact of race in the criminal justice system can be felt at all stages of the process, from the moment of initial police contact until sentencing has been determined and punishment enacted (Alexander 2010). These cumulative effects add up to create a system that disproportionately exerts its control power on blacks and Hispanics. These structural realities further contribute to a racialized death penalty system because they ensure nonwhite defendants are more likely to accumulate legally relevant aggravating circumstances even when their behavior is identical to whites’ behavior. Yet, these differences are not enough to demonstrate racism, according to the McCleskey decision. So, although the McCleskey decision was based upon an already existing and widely understood view of race and racism, its validation of that viewpoint has had a wide-reaching effect on the ability of courts to appropriately grapple with and reduce racial inequality in the US justice system as a whole. Therefore, continuing to use the death penalty in and of itself is an indication of discriminatory purpose and, consequently, the death penalty will continue failing “to deliver the fair, consistent, and reliable sentences of death required by the Constitution” (Callins v. Collins 1994:1145–1146).

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Notes 1. Black defendants and those who kill whites are also likely to be disadvantaged because the death-qualification process eliminates more potential black jurors than prospective white jurors (Fleury-Steiner 2004; Young 2004). 2. As it turns out, capital jurors are reluctant to consider any mitigating factor that is not directly related to the crime in question, such as lingering doubt or mental and psychological defects (Bentele and Bowers 2001; Bowers, et al. 2014; Garvey 1998; Kleinstuber 2014; Sandys and McClelland 2003).

Part 2 Race, Class, and Capital Sentencing

5 Overcoming Moral Peril: How Empirical Research Can Affect Death Penalty Debates R. J. Maratea

HE LATE S UPREME C OURT ASSOCIATE JUSTICE T HURGOOD M AR shall argued in Furman v. Georgia (1972) that capital punishment is debated as much, if not more so, on philosophical grounds than on pragmatic merits of executions. The Marshall hypothesis assumes most people reach forceful and resolute conclusions about the efficacy of capital punishment even though they lack sufficient comprehension of the nature, process, and consequences of executions. Noting the death penalty is “no more effective a deterrent than life imprisonment, that convicted murderers are rarely executed,” and that people do not support “purposeless vengeance” on moralistic grounds (Furman v. Georgia 1972:361), Marshall recognized popular support for capital punishment results from a populace lacking sufficient knowledge to draw reasonable conclusions about state-sanctioned executions (see Bohm 2007). Marshall himself never specified a necessary minimum of death penalty information needed for an average citizen to be properly informed about capital punishment (Bohm, Clark, and Aveni 1991; Kennedy-Kollar and Mandery 2010). He did, however, stipulate executions should “shock the conscience and sense of justice” of any decent person (Furman v. Georgia 1972:361), and said so knowing the majority of Americans were supportive despite strong empirical evidence executions were flawed by bias and bigotry. Extralegal factors such as disproportionate sentencing based on race and class negatively affect disenfranchised and otherwise powerless defendants, and

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capital punishment is one of the few post-segregation–era institutions where unvarnished sentiments on race remain common parlance among whites who “become more supportive of the death penalty upon learning that it discriminates against blacks” (Peffley and Hurwitz 2007:996). Students of capital punishment tend to recognize public opinion on the death penalty is inexorably embedded in individual notions of morality and emotion, which often deviate from reasoned or logical analysis of justice. Consequently, scholars have sought to understand the types of dialogues that most effectively mold and maintain social understandings of capital punishment. This chapter focuses on two of the most prominent modes of death penalty discourse: the philosophical and the empirical. The former emphasizes moral and religious issues—the sanctity of life and scriptural mandate for retribution—while the latter turns on a scientific interpretation of experiential data. Whereas empirical research does not directly address the theoretical morality of the death penalty, it does seek to understand its application by imperfect decisionmakers and, in doing so, confirms the moral and ethical failings of capital punishment.

Morality and the Death Penalty Debate The question of whether the state has the right to kill its citizens is philosophically bound to a long-standing moral, ethical, and legal conundrum: Is the right to life absolute or are there instances when a given offender’s conduct is so heinous that it results in a forfeiture of social protection? Our own individual interpretations of appropriate punishment are in many ways dependent on our personal conception of “the basic purposes and principles of liberal society, including the recognition and protection of individual rights to life and liberty and to security of person and property” (Bedau 2004:146). Justice Marshall spoke to this idea when he noted most people do not favor purposeless vengeance enacted without just reason and thoughtful consideration (Furman v. Georgia 1972). His assertion was axiomatic in that decisions to punish reflect our shared humanism; they compel us to discipline those who violate the welfare of others, but not necessarily sentence offenders to death simply because their crime elicits sufficient moral outrage to infer they deserve to die. From a consequentialist perspective, moral indignation is an insufficient justification for supporting executions. Instead, a punishment’s utility should be evaluated by the social goals it helps to achieve:

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• Punishment ought to contribute to the reduction of crime; accordingly, the punishment for a crime ought not be so idle a threat or so slight a deprivation it has little or no deterrent or incapacitative effects; and it certainly ought not to contribute to the increase of crime. • Punishments ought to be “economical”—they ought not to waste valuable social resources in vain or be unnecessarily costly endeavors. • Punishment ought to rectify harm and injustice caused by crime. • Punishment should serve as a recognized and legitimate channel for the release of public indignation and anger at the offender. • Punishment ought to make convicted offenders into better persons rather than leave them as they are or make them worse. (Bedau 2004:148–149)

To the extent that legal and penal sanctions are mechanisms for achieving a greater social good, consequentialists argue it is inherently moral to punish another human being—criminal or otherwise—if the sanctions against them produce a positive social outcome. Furthermore, they suggest punishment must be rigorous enough to deter crime and protect the social welfare, while also being sufficiently minimal in severity to be “morally proportionate to the crime” (Schwarzschild 2002:11). To this point, Hugo Adam Bedau (2004) recognized the value in using punishment as a tool for crime reduction, but argued the existing research undermines the argument that execution achieves any desired social goals. Consequently, he argued it is morally impossible to justify the use of capital punishment when lesser sanctions are at least equally effective in securing public safety. Bedau’s longtime philosophical adversary, Ernest van den Haag (1997), rebutted this point by arguing the actual deterrent value of capital punishment lies in the possibility it may save the lives of innocents: “Even though statistical demonstrations are not conclusive, and perhaps cannot be, I believe that capital punishment is likely to deter more than other punishments because people fear death more than anything else” (p. 450, emphasis added). He further argued abolitionism fails for purely moral reasons regardless of whether the death penalty can be statistically proven to have a significant deterrent effect: “I should favor the death penalty for murderers, if probably deterrent, or even just possibly deterrent. To me, the life of any innocent victim who might be spared has great value; the life of a convicted murderer does not. This is why I would not take the risk of sacrificing innocents by not executing murderers” (van den Haag

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1997:450). While it is clear van den Haag felt capital punishment morally proportionate because protecting the lives of innocents is paramount— and deterring even a small number of crimes is socially beneficial—his position assumes abolitionists “tolerate the murders of hundreds rather than execute any convicted murderers even if [they] know that by doing so [they] could have prevented those murders” (Bedau 1997:463). Moral opposition to the death penalty, however, often proceeds from a position that capital punishment should be abolished irrespective of whether certain offenders may actually deserve death (Davis 1990; see also Reiman 1985). On what basis do we attach any moral legitimacy to the idea that death is what murderers deserve, when we do not embrace (except in moments of extreme and thoughtless anger) the obvious parallels under the retributive principle that would require rapists to be raped, torturers to be tortured, and so on through the list of crimes and their matching retaliatory punishments? I suggest that the appeal to desert in order to decide how to punish a murderer is largely a delusion; instead of constituting an appeal to a truly independent principle (a principle of retributive justice, presumably), asserting (5) murderers deserve the death penalty really differs only verbally from asserting (6) murderers ought to be executed despite the fact that assertion (6) looks like the conclusion derivable from (5) as the premise. (Bedau 2004:172–173; emphasis in original)

Even though most people may believe more severe crimes merit greater punishment, the question remains whether our collective attempts to achieve retribution are clouded by the need or desire to obtain revenge. Van den Haag (1997) conceded vengeance may indeed be a motive for capital punishment, but suggested this was morally irrelevant given that executions do not impose suffering on offenders exceeding what was inflicted on their victims.1 Murderers are punished, as are all offenders, not just for the suffering they caused their victims, but for the harm they do to society by making life insecure, by threatening everyone, and by requiring protective measures. Punishment, ultimately, is a vindication of the moral and legal order of society and not limited by the Lex Talionis, meant to limit private retaliation for harms originally regarded as private. (van den Haag 1997:453)

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There is considerable irony in rationalizing the termination of one person’s existence—however vile they might be—in order to protect the sanctity of life. Bedau (1997) aptly noted van den Haag’s disavowal of lex talionis meant he would support the death penalty for particularly vile offenders while ignoring “the inapplicability and absurdity of [employing an eye for an eye] for a wide range of crimes” (p. 465). Despite Bedau’s dismissal, rebutting van den Haag’s premise requires more than simply arguing that the state should not respond to a criminal transgression by committing the same wrong against the offender. There is, after all, a patent moral contrast between the murder of an innocent victim and the state executing her killer (see van den Haag and Conrad 1983). Of course, these distinctions become muddled when we consider that some offenders are sentenced to death for crimes that deserve a lesser punishment and, more disconcertingly, others are actually innocent of the crime for which they have been executed. In addressing this point, Reiman (1985) asserts that the fear of wrongful execution is not as morally reprehensible as abolitionists might suggest. There is invariably some cost that is prohibitive such that if, for example, capital punishment were necessary to save the lives of potential murder victims, there must be a point at which the number of saved victims would be large enough to justify the risk of executing an innocent—particularly where trial and appellate proceedings are designed to reduce this risk to a minimum by giving the accused every benefit of the doubt. Since we tolerate the death of innocents, in mines or on highways, as a cost of progress, and, in wars, as an inevitable accompaniment to aerial bombardment and the like, it cannot convincingly be contended that, kept to a minimum, the risk of executing an innocent is still so great an evil as to outweigh all other considerations. (Reiman 1985:117)

It is indeed challenging to contend that the execution of someone like Ted Bundy is unjustified, regardless of whether everyone else sentenced to death is equally deserving of capital punishment. Van den Haag never actually formulated any scale or measurement to systematically identify the offenders most suitable for death. Rather, he simply argued that the death penalty for murder is just because killers like Bundy deserve to die irrespective of whether the undeserving or innocent become casualties in pursuit of the greater good: “Whether one sees the benefit of doing justice by imposing capital punishment as moral, or as material, or both,

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it outweighs the loss of innocent lives through miscarriages, which are as unintended as traffic accidents” (van den Haag 1997:451). Still, the very risk of executing the innocent or undeserving does present a moral conundrum that is not easily rectified either in theory or in practice. The Supreme Court in Lockett v. Ohio (1978) establishes that the legitimacy of capital punishment as a legal response is only attained when its use is morally appropriate (see Bilionis 1991).2 In Lockett, the High Court ruled that capital statutes violate the 8th and 14th Amendments if they narrowly limit a sentencer’s discretion “to consider and give effect to mitigating evidence relevant to a defendant’s background, character, and crime” (Penry v. Lynaugh 1989). The Lockett ruling remains vital to the capital process because it “is the primary legal tool for ensuring that each decision to employ the death penalty is well grounded in morality” (Bilionis 1991:286). Realizing moral appropriateness in practice has proven to be problematic. Empirical research consistently indicates capital punishment is applied in a capricious and arbitrary manner. If there is, as critics suggest, no readily identifiable and legally valid rhyme or reason for why some defendants are sentenced to death while others are not, then it becomes difficult to argue that capital punishment is employed in morally appropriate ways. Perhaps for this reason, Justice William Brennan argued in Furman that the death penalty is widely supported because of its disuse: “When an unusually severe punishment is authorized for wide-scale application but not, because of the society’s refusal, inflicted save in a few instances, the inference is compelling that there is a deep seated reluctance to inflict it” (Furman v. Georgia 1972:114). Whether or not most people would continue to support capital punishment if it was more broadly applied is unknown, although Bedau argues that the suffering and agony inflicted on a defendant during the execution itself are calculated outcomes by “which the state’s overwhelming power is on display against the helplessness of the prisoner” (Bedau 1997:468). The consequence of this, as articulated by Justice Brennan in Furman, is the state’s permanent denial of a condemned offender’s right to have rights. Whereas prison inmates retain their constitutional rights when behind bars, executed persons lose any possibility of redemption and the ability to regain their humanity (see Furman v. Georgia 1972). The resulting “moral albatross” obliges us to consider how the “death penalty symbolizes unlimited impersonal power over the individual, with dramatically final and irreversible results whenever it is expressed” (Bedau 1997:469, emphasis in original).

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From the Moral to the Empirical: Using Data to Evaluate the Efficacy of Capital Punishment In being the primary definer of the moralist perspective for abolition, Bedau articulated more than anyone else how and why capital punishment fails to achieve the social goals supposedly justifying its use. Lacking an ethical basis for supporting the death penalty, Bedau’s opposition was absolute: He argued that lesser forms of punishment could achieve the same goals as executions without violating our moral principles. Yet while Bedau’s work has been widely cited by other scholars and is often referenced by judges in appellate decisions (see Radelet 2012), consequentialist arguments about the immorality of punishment are not necessarily persuasive with the wider public. Lay citizens are far more likely than death penalty scholars to believe that capital punishment is justified because it falls within the boundaries of their personal moral compass. Of course, individual morality is shaped over the life course by a variety of social forces that extend beyond one’s immediate family and close friends. Oftentimes, cultural narratives espoused by politicians, civic leaders, and professional journalists play a central role in molding our perceptions about social phenomena like the death penalty, while also blurring the ethical limitations intended to guide the use and degree of punishment. For example, consider a politician that champions the need to “get tough” by enforcing harsh sanctions as a deterrent for future crimes, or a district attorney who advertises a victim’s family during a homicide trial, publicly pronouncing she will pursue the death penalty so that the offender feels the wrath of justice. The political capital to be gained by endorsing a tough-on-crime stance is a compelling reason for public officials to promote the need and value of capital punishment to their constituents. In truth, most people are only confronted with the idea of executions during high-profile murder cases when news reports convey the sordid details of crimes so heinous that prosecutors, victims’ families, and sometimes even journalists contend capital punishment is the only mechanism to achieve justice. By contrast, the public may also learn about death row exonerations when someone like Troy Davis is put to death despite insufficient evidence to confirm guilt. In these highly evocative moments— when vile offenders are facing execution or when the wrongly convicted are absolved—the media tend “to cover the death penalty’s popularity without caveats, limitations, or mention of support for alternative sentences” (Niven 2002:672). This sort of coverage tends to stoke outrage

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and provoke “public outcries for executions” (Vollum and BuffingtonVollum 2010:18), and it also fails to contextualize the underlying moral and ethical dilemmas inherent to such a uniquely severe sanction. It is perhaps unsurprising, then, that most Americans continue to support capital punishment despite strong empirical evidence that race and class disproportionately affect disenfranchised and otherwise powerless defendants. Although even the most ardent death penalty supporters might be troubled by the prospects of wrongful convictions and executions, their adherence to capital punishment may result from its standing as a “morality policy” that invokes passionate responses about deeply rooted principles: “With little technical information and with high salience, citizen involvement will be increased in all phases, from paying more attention to the debate, to having informed opinions, to actually speaking out and participating actively in the policymaking process” (Mooney 1999:676; see also Mooney and Lee 1999). Consequently, decisions to support and oppose the death penalty are recurrently established on moralistic judgments reinforced by opinionated and avowedly shallow news coverage (Mooney and Lee 1999; Zeisel and Gallup 1989). Bridging the schism dividing personal notions of morality and emotion from reasoned critical analysis of capital punishment has compelled scholars to employ an array of empirical data and statistical analyses to interpret how capital punishment functions in practice. The most notable of these efforts comes from David Baldus, Charles Pulaski, and George Woodworth (1983) in their seminal “Comparative Review of Death Sentences” in Georgia (better known as the Baldus study). As Tony Poveda discussed in Chapter 3, the Baldus study is an astonishingly comprehensive example of statistical research, and actually reflects the findings of two separate research studies: the Procedural and Reform Study (PRS), which used over 200 variables to evaluate 156 pre-Furman and 594 postFurman defendants tried, convicted, and sentenced for murder in Georgia between March 1973 and July 1978, and the Charging and Sentencing Study (CSS), which “covered the period from 1973 through 1979, one year more than the PRS, and embraced a much larger universe of cases— 2484 defendants arrested and charged with homicide who were subsequently convicted of murder or voluntary manslaughter” (Baldus, Woodworth, and Pulaski 1990:45). For the CSS, a stratified random sample of 1,066 cases was drawn from the 2,484 total defendants to produce the final data set, which was then statistically analyzed using more than

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400 nonracial aggravating and mitigating variables. The goal of the CSS was to determine whether racial and other extralegal factors influenced the movement of cases through the system, including “grand-jury indictment decisions, prosecutorial plea-bargaining decisions, jury guilt-trial decisions, prosecutorial decisions to seek a death penalty after the guilt trial, and jury penalty-trial sentencing decisions” (Baldus, Woodworth, and Pulaski 1990:45). Among the most prominent findings of Baldus and his colleagues, only 128 defendants (out of the 2,484 CSS sample) of eligible Georgia defendants were given a death sentence, accounting for only 5.15% of the sample. Table 5.1 indicates there were profound capital sentencing disparities identified, which were largely determined by a race-of-victim effect, whereby the killers of whites confront the death penalty at a much higher rate than those who murder blacks.3 All told, Baldus et al. (1983) discovered the death penalty was meted out at a rate 4.3 times higher in white victim than in black victim cases; they also found the effects of race were most prominent in cases placing wide discretion in the hands of the jury or judge when determining death sentences. Such cases often involved interracial homicides, murders in the commission of other felonies, and complex amalgamations of aggravating or mitigating circumstances. The implications and legacy of the Baldus study have been profound, in part, because the research itself empirically indicates the practice of capital punishment in post-Gregg Georgia is strikingly similar to the pre1972 system deemed unconstitutional in Furman v. Georgia (see Zimring 2003). Yet Baldus et al. (1983) note their research is merely “a point of

Table 5.1 Likelihood of Prosecutor Seeking the Death Penalty and Capital Punishment Being Sentenced Based on Race of Defendant and Victim

Race of Defendant

Race of Victim

Death Sentences/Total Number of Cases

Black White White Black

White White Black Black

50/233 58/748 2/60 18/1,443

Source: Baldus, Pulaski, and Woodworth (1983).

Percentage of Cases Where Prosecutor Sought Death

Percentage of Cases Resulting in a Death Sentence

70 32 19 15

22 8 3 1

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departure,” through which scholarly inquiry could help distinguish “the frequency of death sentences among cases deemed to be similar and will free individual jurists from the burden of subjectively deciding whether individual death sentences are justified by the facts of the case” in order to “enhance the rationality and consistency of the sentence review process, thereby ensuring greater consistency in the entire death-sentencing system” (Baldus et al. 1983:732–733). Their purpose was not to determine the morality of capital punishment in theory, but rather to explicate the imperfections of its application in practice. Following in the footsteps of Baldus, other scholars have evaluated the efficacy of executions based on empirical evidence pertaining to a variety of issues, such as disproportionality in sentencing, incapacitative effects, arbitrary application, prosecutorial discretion, and cost relative to long-term imprisonment. One major point of contention pertains to the deterrent value of capital punishment, which scholars have been studying (and debating) for nearly a century. Both Dann (1935) and Savitz (1958) found no discernible effects in the immediate aftermath of highly publicized executions or the pronouncement of death penalties following publicized trials.4 Likewise, Sellin (1959) reported no clearly identifiable deterrent value to capital punishment, noting death penalty states have murder rates that are equal to or higher than abolitionist states. These early studies notwithstanding, Isaac Ehrlich (1975) famously used advanced statistical regression analysis to examine homicide rates between 1933 and 1969; he found a significant decline in executions corresponded to a general rise in homicides and concluded each execution performed during that time period prevented about seven to eight murders. More than anything else, Ehrlich’s sample covered a period of years when substantial increases in violent crime after 1965, brought on by the post–World War II baby boom, coincided with nationwide political reluctance to use capital punishment in the face of increasing African American militancy. Arguably deterrence, or lack thereof, had nothing to do with the frequencies of homicides in the period after 1964, making Ehrlich’s insistence that executions were systematic and negatively related to murders an erroneous conclusion. Still, subsequent research by Ehrlich and other scholars similarly identified a significant deterrent effect, mostly ranging from 3 to 18 lives saved for each execution performed (Cloninger 1977; Dezhbakhsh, Rubin, and Shepherd 2003; Layson 1985; Mocan and Gittings 2003; Shepherd 2002, 2004), while others found short-term deterrence occurred in the immediate aftermath of an execution—particularly

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those that were well publicized (Phillips 1980; Stack 1987).5 More recently, economic-based analyses have been employed in ways that similarly pinpoint a deterrent value to capital punishment: “These studies have primarily relied on annual state- or county-level panel data using fixed-effects models and have operated within the ordinary least-squares estimator framework” (Kovandzic, Vieraitis, and Boots 2009:805). Using this technique, studies by Dezhbaksh, Rubin, and Shepherd (2003), Ekelund et al. (2006), Mocan and Gittings (2003), and Shepherd (2004) all identified a significant deterrent effect ranging from 5 to 150 lives saved per execution.6 In light of these findings, death penalty proponents argue that abolitionists have no moral standing to oppose executions because the saving of innocent lives outweighs any potential harm caused by capital punishment (see Sunstein and Vermeule 2005). Critics, however, contend serious methodological and empirical flaws contaminate Ehrlich’s analysis and extend to the more modern time-series and panel data studies. Ehrlich’s own work has been condemned for employing data that were inadequate for the purpose of his study and misapplying his chosen statistical techniques, causing him to “produce results which seem consistent with the deterrence hypothesis when in fact they are not” (Bowers and Pierce 1975:187; see also Baldus and Cole 1975). Likewise, panel data studies have been disparaged for lacking methodological rigor, which is particularly manifest via high levels of unexplained error (see Kovandzic, Vieraitis, and Boots 2009), and time-series methods that apply macroeconomics to forecast the future effectiveness of capital punishment using historical (or previously observed) data fail to provide even causal evidence of deterrence (Charles and Durlauf 2013). In fact, the vast majority of criminological research finds no deterrent effect of capital punishment (Bailey 1998; Cochran, Chamlin, and Seth 1994; Donohue and Wolfers 2006; Hjalmarsson 2008; Kovandzic, Vieraitis, and Boots 2009; McFarland 1983; Peterson and Bailey 1991; Sorensen et al. 1999), with some studies suggesting murders may simply be displaced following an execution (Land, Teske, and Zheng 2009), and others finding support for a brutalization effect (Bailey 1998; Cochran and Chamlin 2000), or an unintended increase in homicide following executions.7 Criminological research has also found the implementation of capital punishment to be flawed for other reasons. James W. Marquart and Jonathan R. Sorensen (1989) examined 558 death row inmates commuted by the Supreme Court’s 1972 ruling in Furman v. Georgia to de-

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termine whether commuted and released capital offenders remain a significant threat to society.8 They found that 243 (44%) of the reprieved Furman inmates had been released; of those, 191 (78.6%) had never returned to prison.9 Although 52 (21%) were reincarcerated for parole violations or having committed another crime, only 1 of the 243 released offenders ever murdered again, leading Marquart and Sorensen (1989) to conclude that capital punishment serves no significant incapacitative purpose. Although seven subsequent murders would have been prevented had the 558 offenders all been executed (one recidivist murder and six others that occurred in prison), a total of 242 of the 243 (99.6%) Furman-commuted inmates eventually released from prison did not commit an additional murder. A separate study by Bedau and Radelet (1987) further determined that at least four of the inmates on death row at the time of the Furman decision were actually innocent, forcing a consideration of the morality of executing some innocents in order to possibly save the lives of other citizens (see also Radelet and Bedau 1998).10 Whereas studies measuring the deterrent and incapacitative effects of capital punishment are focused on the philosophical rationales that underpin the death penalty, empirical research also employs statistical data to scrutinize its actual application. For example, Radelet (1989) examined the effect of victims’ social status on the sentencing decisions of 15,978 reviewed death penalty cases. He found that while only 30 of the cases involved white defendants executed for killing black victims, these figures were not actually anomalous because they involved high-status offenders and low-status victims, which are the least likely case types to result in an execution. Likewise, Baldus and colleagues (1990, 1998, 2002) wrote extensively on the role of social status in capital sentencing, confirming Radelet’s finding that victims’ caste and occupational prestige influence the imposition of death (see Phillips 2009 for an overview of victim status research). Moreover, Phillips (2009) found status disparities among victims strongly influence prosecutorial decisions to seek death and jurors’ decisions to condemn. Quite simply, these studies indicate extralegal factors such as race and class intersect, thereby ensuring the death penalty will be disproportionately employed against offenders who are from racially, economically, and culturally devalued populations. By focusing on proportionality in capital sentencing, researchers have confirmed the original findings of Baldus, Pulaski, and Woodworth (1983) by identifying that systemic and institutionalized disparities not only exist within the justice system, but they are the direct cause of un-

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equal and arbitrary outcomes. Numerous studies have shown a victim’s race is significantly related to indictment, sentencing, or prosecutorial decisions to seek the death penalty (Bowers 1983; Paternoster 1984; Paternoster et al. 2004; Pokorak 1998; Radelet 1981; Songer and Unah 2006; Sorensen and Wallace 1995; Unah 2009, 2011); prosecutors are more likely to seek execution in cases deemed to be the most serious (see Barnett 1985), and juries most commonly sentence defendants of color to death when their victims are white (Baldus, Pulaski, and Woodworth 1983; Keil and Vito 1989).11 Foley and Powell (1982) further suggest a defendant’s sex influences prosecutorial decisions to try cases, while an offender’s sex affects the conclusions reached by judges and juries. Perhaps most troubling, these disparities not only help determine who gets sent to death row, they also indicate that the proverbial “worst of the worst” are identified in a profoundly arbitrary manner. Donohue (2013) has even found that more egregious cases are less likely to yield a capital sentence than less severe homicides!

Judicial Interpretations of Statistical Data Pertaining to Capital Punishment In truth, the breadth of empirical scholarship indicating the presence of racial and socioeconomic bias within the US capital process is far too expansive to comprehensively summarize in the limited space offered by this chapter. However, the overwhelming scholarly consensus is that legally irrelevant factors like race and social class heavily influence charging and sentencing decisions in capital trials. The existence of such powerful extralegal effects in the capital system has been explained in a variety of ways. Bienen (1997) argues disparate outcomes can only result from the purposeful discrimination of court officials and the larger public. The criminal justice system is controlled and dominated by whites, although the recipients of punishment, including the death penalty, are disproportionately black. The death penalty is a symbol of state control and white control over blacks. Black males who present a threatening and defiant persona are the favorites of those administering the punishment, including the overwhelmingly middle-aged white, male prosecutors who—in running for election or reelection— find nothing gets them more votes than demonizing young black men. (Bienen 1997:1349)

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John C. McAdams (1998) criticizes this rationalization as a simplistic “mass market” argument that is easy to regurgitate because it is “supported by causal empiricism” and sellable to the public: “It flows effortlessly from our generic presumption that black people will be treated unfairly by pretty much any American institution, and from the ease of focusing on one particular class of black people: those accused of crimes” (p. 154).12 To this point, Paternoster et al. (2004) aptly note, “finding that race influences the decisions made by state’s attorneys whether to seek or withdraw a capital charge does not mean that they are motivated by intentional racial prejudice or bigotry” (p. 48). In other words, the justice system is so historically embedded in inequality it reproduces subtle yet disparate outcomes despite our best efforts to root out discrimination and achieve fairness. Equally problematic, these disparities are easy to overlook among citizens that generally trust legal authorities because they do not involve purposeful or overt acts of hate. For example, psychological evidence points to the fact whites are more likely to empathize with and feel sympathy for other whites more than non-whites. White decision makers in the capital punishment system may, therefore, unconsciously make decisions that favor white victims. This greater sympathy for white victims by white decision makers may be particularly salient in intra-racial slayings, and certainly would characterize other decision makers besides state’s attorneys. (Paternoster et al. 2004:49–50)

This reality becomes particularly salient when we consider how courts have interpreted statistical data on racial disparities in capital sentencing, in particular with regard to the Baldus study, the legitimacy of which was rejected by the US Supreme Court in McCleskey v. Kemp. Despite the astounding level of analytical rigor and statistical validity found in the Baldus study, there were clear indications of skepticism about the usefulness of social science research in evaluating capital punishment before McCleskey ever reached the High Court. In the Northern Georgia District Court’s opinion in McCleskey v. Zant (1984), Judge Owen Forrester derided the Baldus study for having numerous faults: “The database was too inaccurate to form a basis for useful conclusions; the statistical models used by Baldus and his colleagues were flawed; the data did not demonstrate that the capital-sentencing system in Georgia was discriminatory; and the statistical methodology used had no value

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in this context” (Gross 2012:1913). Although anyone with even a cursory understanding of statistical analysis would likely conclude the reasoning is flawed and inaccurate, the District Court nonetheless concluded Baldus’s methodology failed to contribute anything of value to McCleskey’s case (McCleskey v. Zant 1984). Interestingly, however, when McCleskey v. Kemp reached the 11th Circuit Court of Appeals, the presiding judges essentially chose to ignore the District Court’s earlier ruling in Zant on the value of statistical methodology. Rather than dismiss the Baldus study on methodological grounds, the court acknowledged Baldus and his colleagues sufficiently identified systemic disparities in Georgia’s capital system, but their research failed to identify any actual discrimination. [T]he district court held the [Baldus] study to be invalid . . . we assume without deciding that the Baldus study is sufficient to show . . . that systematic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County. . . . even if the statistical results are accepted as valid, the evidence fails to challenge successfully the constitutionality of the Georgia system. (McCleskey v Kemp 1985:894–895)

It is from this passage in Circuit Court opinion that we can articulate the court’s consideration (or lack thereof) of empirical research in capital cases, which would be reasserted when the Supreme Court also rejected McCleskey’s claim of racial discrimination in 1987. The problem for McCleskey and his counsel was that Forrester deemed even the most comprehensive statistical data can only indicate disparities in outcome, which, however extreme, cannot be conclusively proven to result from purposeful discrimination. Baldus, Woodworth, and Pulaski (1990) note Judge Forrester held that the plaintiff’s burden was to show race played a part in “either the decision of the prosecutor or the jury,” and regardless of its validity, statistical evidence of systemwide disparities was “incapable of saying whether or not any factor had a role in the decisions to impose the death penalty in any particular case” (p. 342). Given that Forrester also found the state’s evidence sufficient to rebut the findings of the Baldus study, he ultimately decided “even if the statistical results are accepted as valid, the evidence fails to challenge

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successfully the constitutionality of the Georgia system” (McCleskey v. Kemp 1985). In short, the appellate court decisions suggest that even if the Baldus study were assumed to be valid—a position Judge Forrester did not even accept—statistical data effectively contribute nothing to understanding the constitutionality of capital punishment because they can only indicate systematic disparities, which might be so profound they can only be understood as purposeful, but nonetheless cannot be shown to have occurred due to discriminatory intent on the part of specific individuals in a specific case. Empirical research is thus rendered irrelevant, as the only way a petitioner can meet the resulting burden of proof is in the unlikely event that individuals involved in cases choose to publicly identify themselves as bigots who purposefully tainted the process due to their racial bias. This rationale is perplexing given the court acknowledged Baldus’s most compelling model indicates on average “a white victim crime is 6% more likely to result in [a death] sentence than a comparable black victim crime” (McCleskey v. Kemp 1985:896). Nonetheless the High Court discounted the significant risk of bias in the sentencing process. The circuit court holding in McCleskey is hard to fathom. “Six percent” may not seem like a lot in some contexts—say the difference between male and female employment at a plant with 53% men and 47% women. . . . In the context of capital sentencing in Georgia in the 1970s, a good description of the “6%” racial disparity found by Baldus (after controlling for many other variables) is that it corresponds to an increase in the probability of a death sentence from 3% to 9%. Did the Eleventh Circuit really mean to say that an unexplained racial disparity that increases the risk of execution by a factor of three is just too small to require consideration? (Gross 2012:1914)

Gross (2012) concludes the 11th Circuit rejected Baldus’s findings but could not refute the veracity of the data and therefore “may have been unwilling to rest its judgment on the untenable claim that the most thorough study of sentencing patterns ever conducted in this country was inadequate to satisfy [the court’s] methodological demands” (pp. 1914–1915).13 McCleskey v. Kemp would eventually reach the US Supreme Court, where McCleskey’s claims of racial discrimination and arbitrariness in Georgia’s capital system were rejected by a 5–4 vote. Although the court determined the Baldus study to be statistically valid, sentencing dispar-

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ities correlated with race were deemed insufficient to demonstrate the existence of a constitutionally significant risk of racial bias in Georgia’s capital sentencing against any particular defendant. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case. Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case . . . the question is at what point that risk becomes constitutionally unacceptable. (McCleskey v. Kemp 1987a:309)

Powell concluded by noting, “apparent disparities in sentencing are an inevitable part of our criminal justice system,” and “there can be no perfect procedure for deciding in which cases governmental authority should be used to impose death” (McCleskey v. Kemp 1987a:313).

Conclusion We may reasonably ask ourselves whether it should be acceptable for any criminal proceedings, let alone those resulting in the death of a defendant, to be less than perfect in their implementation. If the work of Baldus, Pulaski, and Woodworth (1983) teaches us anything, it might be extralegal racial factors invariably influence sentencing outcomes regardless of intent and despite our best efforts to remove purposeful discrimination from the capital punishment process specifically, and the criminal justice system more generally. In holding that statistical data can denote disparities but not an individual’s intent, the courts place a nearly impossible burden of proof on defendants to show the exact moment when some justice official communicated his or her bigotry; and even more disgraceful, the High Court also affirmed unspecified levels of racial prejudice are constitutionally acceptable in capital cases. Baldus surmised the courts might discount his work because “race-of-victim discrimination does not raise the same sort of moral concerns as race-of-defendant discrimination— even though, from a constitutional standpoint, discrimination on the basis of any racial aspect of the case is illegitimate” (see Liptak 2011). Nonetheless, the legal reasoning and judicial skepticism of empirical

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data exhibited by the courts toward the Baldus study are so confounding, “future generations will be a bit surprised when they realize that David Baldus’s work has not already directly led states to totally abandon the death penalty” (Radelet 2012:1965).

Notes 1. Van den Haag (1997) further argued that we should not confuse motive with purpose: Vengeance may be a motivation for capital punishment, but the rationale for executions remains deterrence. 2. The notion of moral appropriateness in capital sentencing actually originates in the Supreme Court’s ruling in Woodson v. North Carolina (1976). 3. Baldus, Pulaski, and Woodworth (1983) did find that a higher percentage of white offenders (7%) are sentenced to death than black defendants (4%) because most murders are intraracial (e.g., the victim and offender are classified according to the same racial category). 4. Dann (1935) actually identified a short-lived spike in murders after highly publicized executions in Philadelphia. 5. It is worth noting that while Phillips (1980) documents a small decline in homicide rates in the first few weeks following an execution, there was a corresponding rise during the next four weeks, after which rates returned to normal. 6. Interestingly, Katz, Levitt, and Shustorovich (2003) note that when entered into regression models, the coefficients for execution rates could be both positive and negative depending on the model specification. 7. Most criminological research finds neither deterrent nor brutalization effects attributable to capital punishment. 8. Of Marquart and Sorensen’s (1989) 558-case sample, 474 (85%) were convicted murders, 80 (14%) were rapists, and 4 (less than 1%) were on death row for armed robbery. 9. Marquart and Sorensen (1989) determined that capital offenders released in the years after Furman spent a combined total of 1,282 years in society and committed a total of 12 violent offenses. 10. Bedau and Radelet (1987) identified a total of 350 persons that were wrongly convicted of capital or “potentially” capital cases, and 23 innocents that were actually executed. These figures were characterized as failing “to demonstrate an unacceptable risk of executing the innocent,” thereby confirming “that the risk is too small to be a significant factor in the debate over the death penalty” in a critique by Markman and Cassell (1988:121). 11. Barnett (1985) specifically found that severity of homicide (e.g., heinousness of the killing) does predict the likelihood of a death sentence in Georgia, but that the race of the offender and victim do affect sentencing outcomes in midlevel cases where jurors are uncertain about whether a defendant merits the death penalty. It should be noted that the existence of

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racial disparities in sentencing might be obscured if researchers rely too heavily on case accounts written by justice officials when applying Barnett’s severity scale (see Keil and Vito 1989). 12. McAdam (1998) also notes the existence of “specialist racial disparity arguments,” which suggest “the criminal justice system discriminates against blacks by its lack of concern for black victims” (p. 160). 13. Despite his rejection of the Baldus study, Forrester nonetheless vacated McCleskey’s death sentence and granted a new trial on the grounds that “the jury had not been properly informed a key witness, Offie Evans, had been promised assistance by a detective in connection with federal criminal charges pending against him at the time in exchange for his testimony McCleskey had admitted his guilt to him in a jailhouse confession” (Baldus, Woodworth, and Pulaski 1990:342).

6 Capital Sentencing and Structural Racism: The Source of Bias Gennaro F. Vito and George E. Higgins

INCE PUBLICATION OF G REGG V. G EORGIA (1976) BY THE US Supreme Court, policy research has focused upon application of the death penalty, with many of these studies demonstrating the race of the victim (especially when a black kills a white) significantly enhances the probability that an offender will be sentenced to death. In particular, since the Baldus study and after the Supreme Court’s ruling in McCleskey, a number of studies have determined that white victims (especially cases where blacks kill whites) are the deciding and decisive factor in the decision to execute (Arkin 1980; Baldus, Pulaski, and Woodworth 1983; Bowers and Pierce 1980; Gross and Mauro 1984; Paternoster 1983; Radelet 1981; Wolfgang and Riedel 1973; Zeisel 1981; for a summary of post-Gregg findings see US General Accounting Office 1990). Indeed, recent research confirms that this pattern continues to exist: 2 studies documented no race effects at all; 3 reported both race-of-victim and race-of-offender effects; 2 identified specific disparities in terms of the cases where blacks were charged with the murder of whites; and the remaining 12 reported race-of-victim effects (Baldus and Woodworth 2009:509). David Baldus and his colleagues (1998) further analyzed 992 deatheligible cases in Philadelphia from three time periods (1983–1985, 1986– 1989, and 1990–1993). Their logistic regression analysis determined that the race of the defendant was “a substantial influence in the Philadelphia

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capital charging and sentencing system, particularly in jury penalty trials” (Baldus et al. 1998:1714). In addition, victims with low socioeconomic status had a “substantial and statistically significant effect of reducing a defendant’s likelihood of receiving a death sentence” (Baldus et al. 1998:1715). Juries were more likely to find statutory aggravating factors present in cases with black defendants and white victims than in low socioeconomic status (SES) victim cases, where mitigating factors are more commonly identified (Baldus et al. 1998). Their results indicated race of the victim had an independent aggravating effect: “the presence of a nonblack victim simply enhances the average jurors’ perception of the deathworthiness of the offense” (Baldus et al. 1998:1722). Overall, the probability of an average black defendant was 14 percentage points higher than that of similarly situated nonblack defendants (Baldus et al. 1998). Baldus et al. (2001) arrived at similar findings in their study of 177 death-eligible homicides in Nebraska between 1973 and 1999. Here, they found no evidence of discrimination in capital sentencing on race of offender and/or victim. However, there was evidence that the higher the SES of the victim, the greater the risk of the defendant undergoing the penalty trial and receiving a sentence of death. A study of over 2,300 Maryland capital cases (from August 1978 to September 1999) similarly determined black defendants charged with the murder of whites were most likely to be the target of capital prosecution and receive a death sentence (Paternoster and Brame 2008).1 Likewise, Phillips (2008) examined 504 capital murder indictments in Harris County, Texas, between 1992 and 1999, and found prosecutors were more likely to seek the death penalty in black defendant cases even though their homicides were less serious along several dimensions. However, jurors were slightly more likely to impose the death penalty in white defendant cases. Similarly, prosecutors were more likely to pursue death on behalf of white victims even though black victims’ cases were more likely to involve multiple victims. Overall, capital jurors in Harris County were slightly more likely to impose the death penalty in black victim cases (Phillips 2008). Interestingly, a study of post–capital sentencing outcomes in Texas (1974–2009) determined that cases featuring minorities (black or Latino offenders or victims) registered lower hazards of execution than cases where both the offender and victim were white: The race and ethnicity of the victim and offender had little or no effect upon the probability of a positive outcome on a capital case appeal (Petrie and Coverdill 2010).

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Race and ethnicity were also factors that influenced capital sentencing in California. Pierce and Radelet (2005) found that for the decade 1990–1999, cases with non-Hispanic African American victims were over 59% less likely to be sentenced to death than white victim cases. Even in cases where more than one aggravating factor was present, the killers of non-Hispanic whites were more than twice as likely to be sentenced to death as other murder defendants (Pierce and Radelet 2005). They also determined California counties with the highest rates of capital sentencing had the highest proportion of non-Hispanic whites and the lowest population density (Pierce and Radelet 2005). The victim effect in capital sentencing was also established in several jurisdictions. Pierce and Radelet (2002) found that cases in Illinois between 1988 and 1997 involving black victims were over 59% less likely to be the target of capital sentencing. In terms of geography, homicide cases from Cook County (Chicago) were over 83% less likely to receive a sentence of death (Pierce and Radelet 2002). Thomson (1997) examined over 2,000 Arizona homicide cases from 1982 to 1991: Minorities accused of killing whites had a higher probability of receiving a death sentence than whites who killed whites or whites who killed minorities. Furthermore, Williams and Holcomb (2001) analyzed over 5,000 Ohio homicide cases from 1981 to 1994. Their multivariate analysis revealed that, especially among death-eligible cases, white victim homicides were more likely to receive a sentence of death than black victim homicides when legally relevant variables were controlled for (Williams and Holcomb 2001). Most federal death penalty studies also revealed the same pattern of racial bias that has been documented at the state level: Black defendants, especially those who were charged with the murder of whites, were more likely to be the target of capital prosecution (McNally 2004). These results were particularly relevant because the federal capital sentencing process follows a three-step procedure to ensure that capital prosecution is racially blind. Of course, not all studies find evidence of racial discrimination in capital sentencing. Scheb, Lyons, and Wagers (2008) analyzed 968 homicide cases from 1977 to 2006. They determined that, after controls for such case factors as place, method, motive, nature of the evidence, presence of multiple victims, and prior record were controlled for, the race of the defendant and race of the victim were not significant predictors of a capital sentence (Scheb, Lyons, and Wagers 2008). However, this finding must be reconsidered in light of recent research by the American Bar Association (ABA).

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The ABA has conducted studies in eight states (Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee) and reached the following conclusions concerning race and capital sentencing: • Every state studied appears to have significant racial disparities in its capital system, particularly those associated with race of the victim. • Even in states with acknowledged racial disparities, little, if anything, has been done to rectify the problem. • Generally, states are not keeping the data necessary to conduct the sort of analysis necessary to quantify the problem with bias and identify its causes, making the process of analysis difficult, if not impossible. (American Bar Association 2011) In addition to the race of the victim, there is some indication that the sex of the victim plays a role in the determination of a capital sentence. Holcomb, Williams, and Demuth (2004) examined Ohio homicide cases from 1981 to 1997 and determined that cases involving white female victims had the greatest probability of attracting a death sentence (Holcomb, Williams, and Demuth 2004:893). These authors reached a similar conclusion following their reanalysis of the Baldus capital sentencing data from Georgia, finding that defendants who murdered females were more likely to be sentenced to die than the killers of males. In terms of race, cases involving white female victims were treated most harshly while those in which black males were the victims were treated the most leniently (Williams, Demuth, and Holcomb 2007:885). Furthermore, study of Colorado death sentences determined the deciding factors were cases involving female victims and those in which blacks were charged with killing whites (Hindson, Potter, and Radelet 2006). In sum, the research evidence continues to follow a pattern summarized earlier by Gross (1985) as one that “indicates, unmistakably, that there has been substantial discrimination in capital sentencing by the race of the victim” and that “few social science findings have such strong support” (p. 1301).

The Role of the Prosecutor Prosecutors must be involved in the attempt to eliminate racial disparity in capital sentencing because they control the flow of offenders to death

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row, formulate the charge and determine whether or not the death penalty is permitted if a conviction is obtained, have almost unbounded discretion to offer a life sentence in exchange for a guilty plea in cases where capital punishment is possible, and even after conviction may or may not demand the death penalty (Zeisel 1981). Though their charging decisions may be well intentioned, they have often resulted in racial bias. Several studies of prosecutorial discretion provide evidence that racial differences in capital case processing are present. Analyzing cases from 1976 to 1991 in Kentucky, Keil and Vito (2006) utilized a statistical process that compared the prosecutorial decision to seek the death penalty with a random process. They determined that this decision was decidedly nonrandom: Prosecutors were more likely to proceed with capital prosecution when the defendant was black and the victim was white (BkW). Sorensen and Wallace (1999) examined the capital sentencing decisions of one prosecutor in a midwestern county and found blacks who killed whites were nearly one and a half times more likely to be charged with first-degree murder than other racial groups; BkW cases were more than twice as likely to be served notice of aggravating factors and to proceed to a capital trial. Additionally, if two cases were equal in the number of aggravating factors, BkW cases were significantly more likely to proceed as capital offenses (Sorensen and Wallace 1999). Whether or not these racial differences were the result of intentional processing, bias existed. Songer and Unah (2006) examined over 2,300 South Carolina homicide cases and concluded prosecutors were much more likely to seek the death penalty in white victim cases (7.6% of the cases) than in black victim cases (1.3% of the cases). They were also three times more likely to seek capital punishment in black defendant/white victim cases (Songer and Unah 2006). Furthermore, a Missouri-based study of the prosecutorial decision to seek the death penalty determined that the place of the case mattered. Defendants from St. Louis and Kansas City (the state’s two largest cities) were less likely to be the subject of a capital trial and be sentenced to death than defendants in the rest of the state (Barnes, Sloss, and Thaman 2009). The main reason for this discrepancy was viewed as the high percentages of minorities in the jury pools of these cities. Another study involving Missouri determined that prosecutors “sought out the vulnerabilities in defendants and selected defendants for capital trials on the basis of their ability to convict, rather than on the facts of the crime” (Lenza, Keys, and Guess 2005:163). Evidence of racial discrepancies was particularly notable: Blacks who killed whites

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were five times more likely to be charged with capital murder than whites who killed blacks or whites who had white victims (Lenza, Keys, and Guess 2005). Pokorak (1998) conducted a study of 38 statewide death penalty jurisdictions and examined the race of the prosecutor, victim, and the racial background of death row inmates. He determined that prosecutors in those areas were almost entirely white (over 97%). By contrast, the racial backgrounds of death row inmates were white (47.1%), black (41%), and Latino (6.9%). However, the victim populations for these death penalty cases were white (83.2%), black (12.1%), and Latino (3.5%) (Pokorak 1998:1817–1818). Pokorak proposed two possible sources of unconscious racial bias based upon these findings: (1) predominantly white prosecutors following the black stereotypes of inferiority and increased violence and (2) the perception of violent crimes against whites as more serious than other racial groups. To this end, prosecutors’ reliance on legitimate, raceneutral factors (nature of the offense, defendant’s prior criminal record, victim’s interest in prosecution, strength of evidence, likelihood of conviction) has often had an unintentional racial result (Davis 2007). The US Supreme Court has plainly condemned the complete absence of prosecutorial (and juror) discretion in capital sentencing. Following the Furman v. Georgia decision, several states made the death penalty mandatory for certain crimes or categories of victims (i.e., police officers). The court subsequently rejected this elimination of sentencing discretion in Woodson v. North Carolina and Roberts v. Louisiana, and recognized that discretion was a crucial element in the constitutionality of capital sentencing (Bendramer et al. 1987). Yet it is also noted that a finding of purposeful racial discrimination by the courts against a prosecutor “deeply impugns” their character and typically provokes “angry and vehement reactions” (Baldus, Woodworth, and Grosso 2007:149). One response by prosecutors confronted with these research findings was to seek the death penalty in every eligible case and thereby eliminate any possibility of bias—racial or otherwise. This action is perilously close to the unconstitutional result of making the death penalty mandatory. As Neal (2004) notes, this method is an abandonment of prosecutorial discretion and “the people of Kentucky have not elected Commonwealth Attorneys to exercise no discretion” (p. 20). Neal asserts that the question is not whether you are for or against the death penalty but whether the death penalty should be subject to the same standards of nondiscrimination as any other institution in the state.

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Role of the Capital Jury A number of studies have documented bias and an inability to follow instructions on the part of mock jurors, especially whites, in simulated capital cases (Frank and Applegate 1998; Sommers and Ellsworth 2001; Sommers 2007). Of particular note is research using homicide vignettes has determined that those featuring a black offender and a white victim were most likely to draw a death sentence (Applegate et al. 1993). The Capital Jury Project, a national study of capital juror decisionmaking, addressed this question of racial bias directly by interviewing 1,155 capital jurors from 340 trials in 14 states, including 113 black capital jurors from 83 of the cases (Bowers, Steiner, and Sandys 2001). Black jurors were most likely to be involved in cases with black defendants, especially when the victim was also black (Bowers, Steiner, and Sandys 2001). Black and white jurors commonly held different views about their cases, especially as they proceeded. Whites typically viewed the defendant as a danger to society who would continue to be so in the future if not sentenced to death—unwilling to consider mitigating circumstances like the defendant’s upbringing or background. They usually treated mitigating evidence as trivial and were thus likely to ignore it. Blacks were more likely to view defendants as remorseful and deserving of mercy and to also doubt their guilt or that the case was truly one of capital murder, whereas death sentences were far more likely when five or more white males sat on the jury (Bowers, Sandys, and Brewer 2004). A multivariate analysis of these responses confirmed that black jurors were more receptive to mitigating evidence in black defendant cases and in white victim cases. The authors concluded that the hope that questioning during the voir dire would elicit jurors’ racial views was “wishful thinking,” and much of their racism was “ingrained, unconscious, and denied” (Bowers, Steiner, and Sandys 2001:263–264). Overall, the study revealed that “the race of individual jurors as well as the race of the defendant and the victim infects the capital sentencing process” (Bowers, Steiner, and Sandys 2001:266). These unexpressed, yet widely held views can thus affect the capital sentencing process. Haney has stated that the “empathetic divide” between white jurors and black capital defendants must be bridged if they are to be fairly judged. This can only be accomplished by defense attorneys who provide humanizing and in-depth analysis of the life facts that their black defendants have faced in their mitigation presentations (Haney 2004:1586).

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The Sources of Racial Bias As we have noted, racial bias in capital sentencing results from cumulative decisions made by the actors involved in this process. For example, the proportion of black defendants on death row is lower than their proportion in the population of black murder offenders, the result of the failure to impose the death penalty in black victim cases. Blume, Eisenberg, and Wells (2004) examined 31 states with death row populations of 10 or more between 1977 and 1999, supplementing their analysis with matching data on offenders from Federal Bureau of Investigations (FBI) Supplemental Homicide Reports. They determined the primary factor influencing the size of the death row population in a state was the number of homicides committed (Blume, Eisenberg, and Wells 2004). Accordingly, the greater the proportion of homicides committed by black offenders, the more likely their presence on death row. However, due to the failure to capitally prosecute, black victim cases led to racial disproportionality in every death penalty state—a finding that was especially pronounced in the South (Blume, Eisenberg, and Wells 2004). Traditionally, whites have shown greater support for capital punishment than blacks. Peffley and Hurwitz (2007) determined this difference was due in great part to their conflicting views of black crime. They examined responses from 600 black and 600 white respondents to the National Crime and Race Survey. In addition to their position on the death penalty for murder, these respondents were asked their views concerning the fairness of capital punishment (it is unfair because “most of the people who are executed are African Americans”) and innocence (the “penalty is unfair because too many innocent people are being executed”) (Peffley and Hurwitz 2007:999). Among blacks, death penalty support dropped by 16% and 12% when they considered the fairness and innocence questions. However, support among whites actually increased from 36% to 52% strongly in favor when presented with the argument that the death penalty is racially biased (Peffley and Hurwitz 2007). The authors cast as their “most startling finding” that “many whites actually become more supportive of the death penalty upon learning that it discriminates against blacks” (Peffley and Hurwitz 2007:1006). Olatunde C. A. Johnson (2007) provides several reasons why racial disparity arguments against criminal justice policy are unappealing. First, they may be inadequate to address the “broader norms” that fuel sentencing policy that has been more punitive in the United States than

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in other democratic nations. Focusing upon African American overrepresentation can obscure our overreliance upon incarceration as a solution to crime. In fact, it can backfire by “cementing images of black criminality.” However, the problem of overrepresentation is precisely what fuels the US hyperincarceration rate (O. C. A. Johnson 2007:255– 260). Johnson believes the death penalty will never be imposed in an unbiased manner until more people of color are seated on capital juries in significant numbers. Racial stereotypes also make a significant contribution to discrimination and bias. Eberhardt and her colleagues (2006) attempted to determine whether the physical appearance of black defendants was a factor in their receipt of a death sentence. They obtained pictures of 44 black defendants who were convicted of murdering white victims in Philadelphia between 1979 and 1999. These photos were presented to raters who did not know that they were convicted murderers. The raters were predominantly white (63%) and they were asked to appraise the stereotypicality of each black defendants’ appearance and features (on a scale from a low of 1 to a high of 11). These ratings were then compared to which of the defendants had been sentenced to death while controlling for other relevant factors in sentencing (the presence of aggravating and mitigating circumstances, ratings of the severity of the homicide, the defendant’s socioeconomic status). The research results revealed that the defendants whose characteristics were highly rated as stereotypically black were more likely to have received a death sentence. The authors concluded that “jurors may treat these traits as powerful cues to deathworthiness” (Eberhardt et al. 2006:385). Similarly, Eisenberg and Johnson (2004) conducted a survey of 321 capital defense attorneys and law school students; white respondents consistently expressed an “automatic reaction” preference for good when the action was paired with a white exemplar (p. 1556). Although this finding does not suggest that capital defense attorneys failed to adequately represent their black clients, it does call attention to the need for “introspection about racial stereotypes and reactions” (Eisenberg and Johnson 2004:1556). Specifically, we call attention to structural racism, which refers to a system where public policies, institutional practices, cultural representations, and other norms work in various ways to reinforce and perpetuate racial group inequity (Lawrence et al. 2004). This type of racism seems to promote and allow the privileges that come with “whiteness” and disadvantages that come with “color” to endure over time. Structural racism

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is not a concept that easily resonates with everyone in American culture. Most view racism in the traditional sense of slavery and Jim Crow segregation. As time has progressed, racism has changed from these overt forms of discrimination to more subtle forms of racism. Bobo, Kluegel, and Smith (1997) refer to this trend as a shift toward “laissez-faire racism” that is more subdued and covert, but still present and relevant. No matter the form of racism, the behavior touches everyone in US society regardless of race or ethnicity. To be consistent with the previous research, presented above, we emphasize white and black racism. Thus, when we consider structural racism, we are emphasizing the allocation of social privilege for blacks and whites in a manner that may be overt but is most likely subtle. In US society, the allocation of social privilege results in racial segregation (Massey and Fischer 2000; Wilson 1997), which develops a social scale where economic disadvantage and political isolation are associated with blackness, and access, power, benefits, and opportunity are associated with whiteness. On this scale, blacks and whites may occupy different political and social spaces, and changes politically may allow blacks to come more into power. The election of President Barack Obama, for example, allowed many more blacks to occupy greater political space in society, and possibly change the public’s perception of some important governmental institutions. This occupation of political space in society, however, has not changed the public’s perception of the criminal justice system. Unnever, Gabbidon, and Higgins (2011) used Gallup Poll data to demonstrate the election of Barack Obama did not improve the public’s view of the criminal justice system. They found the public viewed the criminal justice system as biased. Therefore, structural racism has not been rectified by the change in the political status of blacks in the United States. In other words, the election of President Obama has given merely the impression that blacks are occupying more political space. The reality is black political influence, at the federal level, is not able to combat the perceptions of racial segregation many blacks feel as well as strained race relations, especially in the context of the criminal justice system (Higgins, Gabbidon, and Martin 2010; Gabbidon and Higgins 2009). The social space may be best exemplified by the class system in the United States. Recent research shows that the class system that interacts with race indicates the relevance of structural racism. For instance, Pratt and Cullen’s (2005) meta-analysis of criminological theories that posit

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social structural reasons for crime causation (i.e., social disorganization, routine activities, concentrated disadvantage, and collective efficacy) have shown crime and deviance occurs more in poor black neighborhoods than in poor white neighborhoods. Pattillo-McCoy (1999) has shown crime and deviance occur more in middle-class black neighborhoods than in white middle-class neighborhoods. To be clear, PattilloMcCoy (1999) defines middle-class neighborhoods as having two to six times the poverty rate for a family of three, and a neighborhood is a census tract. Her research indicates the main problem is an unequal distribution of economic disadvantage between these neighborhoods. This effectively means a greater amount of economic disadvantage occurs in black middle-class neighborhoods than in white neighborhoods. In our view, structural racism is akin to Blalock’s (1967) racial threat theory. Blalock assumed that as the minority group increases in size, it will threaten the position of the majority group, economically and politically. This sort of threat—real or imagined by the majority group power holders—will create a fear that will initiate a response from the majority group. To thwart the growth of the threat of the minority group, the majority will deploy increased levels of social control, which creates conflict between racial and ethnic groups. One form of social control that is at the disposal of the majority group is the criminal justice system. The racial threat that occurs can take many forms, but is mainly political and economic. Politically, the growth of minorities and participation in the process will threaten the power base of whites. The opportunities of whites to repress blacks through legislation may be weakened; thus, to control blacks, the majority group will use social control to reduce instances of racial minority political threat. Vito, Shutt, and Tewksbury (2009) argued felon disenfranchisement excluded one in six black voters. This reduces the ability of blacks to participate in the political process. Economically, the majority group sees blacks as more competition for jobs, positions, and economic resources and thus develops social controls to relieve the economic threat. This version of Blalock’s (1967) theory has enjoyed substantial empirical success in diverse literatures: sociological, economic, political, and criminological. We emphasize the sociological and criminological literatures because they pertain directly to capital punishment. The literature on racial threat theory, as it is applied to the capital sentencing, comes from several different perspectives. One perspective is the official data on the application of the capital sentencing that also uses census

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data. Another is the use of racial threat theory to explain the public’s perceptions of the capital sentencing. We acknowledge there is a dearth in both literatures using racial threat theory for our purposes, but the literature that is present gives some indication that this perspective is useful. We begin with the racial threat studies that use official and census data. Jacobs and Carmichael (2004) used data from the states on the capital sentencing and census data to test the assumptions of racial threat theory including a measure of religious ideology. They found the increase in the percentage of racial minorities in the state did not matter in the use of the capital sentencing. Instead, religious belief was found to be a reliable predictor of death sentences, and the conservative political ideology accounts for the persistent legality of the capital sentencing. They concluded punishment in general, and capital punishment in particular, drive the political process. Jacobs, Carmichael, and Kent (2005) examined the connection among past vigilantism, racial threat, and the application of the capital sentencing. Their results show a previous tradition of vigilantism interacts with the increase in racial population to explain recent death sentences, and seem to indicate past vigilantism serves as a neutralizing effect toward the capital sentencing. Thus, it increases the likelihood of the punishment occurring. One result is that a high violent crime rate, net all of the other factors, increases the likelihood of the capital sentencing. Overall, the results from the previous research shed some light on how changes in racial populations and political ideology are important to the application of the capital sentencing. The Jacobs and Carmichael (2004) study highlights the political influence on the application of the capital sentencing that is consistent with the themes coming from structural racism. The political space that blacks occupy currently has not translated to changes in the application of the capital sentencing. The reason, at the time of the writing of these articles, might be that blacks did not occupy a substantive portion of political space at the state or federal level sufficient to influence the application of this sentence. Jacobs, Carmichael, and Kent (2005) show that not only race, but also the history of the state, in the context of vigilantism (e.g., lynching), contributes to an increased likelihood of the use of the capital sentencing. Further, the violent crime rate seems to contribute as well. In the context of structural racism, Jacobs, Carmichael, and Kent (2005) seem to provide evidence of the manner in which history or a subtle form of racism is used to apply the capital sentencing. With these two studies, we can see how structural

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racism has a connection to the application of the capital sentencing, but additional research in this area is necessary from the racial threat perspective to solidify this idea. Additional research using racial threat theory comes from the public perception literature. Unnever and Cullen (2010) used cross-national data and found racial threat theory is supportive of capital punishment, but this was the case only when racial animus was high. Ruddell and Urbina (2004) also used cross-national data; their research indicates that the more diverse the country was, the more punitive and supportive of capital punishment it was. While these studies take a cross-national approach to studying capital punishment, their results are supportive of the central component of racial threat theory: As racial minority populations grow, positive perceptions of capital punishment will increase. In other words, using this extreme type of social control will provide some type of control over minority populations. At this point, remedies are necessary.

Potential Remedies Remedies for race of capital defendant discrimination have been difficult to identify. This type of discrimination is particularly dispiriting because it sends the message that “the overriding objective of capital punishment in America is the protection of white people” (Baldus and Woodworth 2004:1451). Baldus and colleagues (2007) asserted the McCleskey v. Kemp decision has nearly eliminated any incentive for state or federal courts and legislatures to address the issue of racial discrimination in capital sentencing, providing them with a legal and political framework to both deny and reform. After all, if the US Supreme Court was unwilling to address this complicated issue, how could state courts hope to address it? Lewis Powell provided useful guidance on this point by noting that in McCleskey the majority set up an intolerable burden of proof for capital defendants, leaving consultation with legislatures as the most likely way to resolve the problem of racial disparity in capital sentencing (Jeffries 1994; New York Times 1994). Policymakers, however, are typically unresponsive to this issue. Constituencies supporting the issue are often weak, and political pressure to be tough on crime discourages legislators from taking a stand (O. C. A. Johnson 2007:236). One egregious example is Kentucky’s Racial Justice Act, which was adopted in July of 1998, and, according to the legislation.

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seeks to prevent racial discrimination in capital sentencing, stating that “no person shall be subject to or given a death sentence on the basis of race.” It permits the introduction of valid statistical evidence of racial bias in Kentucky’s capital sentencing process. The defense must make this claim at the pretrial conference and bears the burden of proving the claim by “clear and convincing evidence.” The prosecution has the opportunity to rebut whatever material and testimony the defense has presented as evidence. The legislation was not retroactive and cannot be applied to any person sentenced before July 15, 1998. (Vito 2010:277)

In a perverse twist of the law, the number of death sentences imposed increased by 8% in the five years following its passage—largely due to the efforts of Jefferson and Fayette County prosecutors to seek the death penalty in black victim cases (Baldus and Woodworth 2004). One potential drawback to the use of such remedies is that they constitute “a declaration of war that may produce retaliation across the defense counsel’s entire case load in that prosecutor’s office” (Baldus, Woodworth, and Grosso 2007:149). To provide some effective review of prosecutorial charging in capital cases, Davis (2007) has suggested several reforms, including the use of racial impact studies (with the courts responsible for data collection) and criminal justice racial and ethnic task forces (as recommended by the ABA). She also endorsed the use of “model reform efforts” like the “Prosecution and Racial Justice Project” established by the Vera Institute of Justice (Davis 2007:228–230). The Vera project was implemented on a pilot basis in prosecutorial offices in three cities (Charlotte, North Carolina; Milwaukee, Wisconsin; San Diego, California). As its major premise, the pilot set in place an improved information system, producing data to monitor and indicate when, where, and why racial bias was evident in prosecutorial decisionmaking. A number of lessons were learned in this process. First was the inadequacy of the conviction rate as a performance measure. Vera researchers emphasized data must be collected at “four key discretion points” in the prosecutorial process: initial case screening, charging, plea offers, and final disposition (McKenzie et al. 2009:2). Second, an automated system should be developed within the prosecutor’s office to collect data at each discretion point on key variables such as the total number of charges against the arrested person (both arrest charges and number of counts), the charge type, the crime level and type, whether or not the case was prosecuted, as well as nonlegal variables such as race

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(McKenzie et al. 2009). These data should be collected at both trial and charging levels to reflect exactly how the case was processed. Finally, data analysis must be conducted and reviewed by a team of legal, nonlegal, and technology personnel to explain findings of racial bias. In Milwaukee, evidence of racial disparity in the charging of drug paraphernalia cases revealed the source of bias (a 14 percentage point discrepancy in declination rates for white defendants) was due to prosecutorial inexperience. The finding of racial bias was attributed to junior-level prosecutors more vigorously pursuing cocaine cases where crack pipes were in evidence. When the Milwaukee office instituted supervisory case review practices, this disparity was eliminated (McKenzie et al. 2009). Thus, review of prosecutorial decisionmaking through the use of an information system can reduce or eliminate unconscious racial bias. Similarly, Gohara (2007) proposed several strategies to move beyond the limitations established by the McCleskey decision. First, she proposes civil rights litigators reeducate decisionmakers about “what they already know: race matters in the criminal justice system.” Second, the use of dispositions and affidavits from former prosecutors, police, community leaders, and residents can “give life” to the statistics that demonstrate racial disparities and create a “precedential history.” Finally, litigation strategies should be adopted at all levels of the criminal justice system and its practices and partner with social science and historical studies (Gohara 2007:141–142). Another potential remedy is to follow the court’s recommendation in Turner v. Murray that the defense in an interracial crime has a right to inform prospective jurors of the victim’s race and to question them on the issue of racial bias (Bendramer et al. 1987). Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. On the facts of this case, a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether the petitioner’s crime involved the aggravating factors specified under Virginia law. Such a juror might also be less favorably inclined toward petitioner’s evidence of mental disturbance as a mitigating circumstance. More subtle, less consciously held racial attitudes could also influence a juror’s decision in this case. Fear of blacks, which could easily be stirred up by the violent facts of the petitioner’s crime, might incline a juror to favor the death penalty. (Turner v. Murray 1986:1687–1688)

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Thus, the court “placed interracial crimes among a class of offenses in which the possibility of racial discrimination” clearly exists (Bendramer et al. 1987:327). Consequently, procedural safeguards should be established to screen out biased jurors and ensure representative juries. However, faith in such remedies suffers from “two mistaken assumptions”: It assumes that “superficial questioning” could make an unconsciously biased juror both recognize and disclose prejudice and that such jurors would truthfully answer questions about racial bias (Bendramer et al. 1987:328). Another recommendation follows the lead of the New Jersey Supreme Court, which developed an empirical database of all death-eligible cases and addressed the issue of racial discrimination in capital sentencing under its authority in the state constitution. Research evidence of racial bias in capital sentencing (particularly favoring cases with white victims) from Pennsylvania and Maryland failed to move their state supreme courts to take action. In New Jersey, however, research documented that although prosecutors became more selective in their charging behavior over time, the discriminatory effect of white victim charging remained. Thus, the New Jersey experience calls into question the ability of judicial review to grant relief on the basis of statistical evidence. Baldus and his colleagues concluded the only choice for jurisdictions where racial bias in capital sentencing has been determined is abolition or a “drastic legislative narrowing of death eligibility to the most highly aggravated cases coupled with close scrutiny by the state supreme court” (Baldus, Woodworth, and Grosso 2007:177). Ultimately, the inability of judical oversight to reduce or eliminate racial bias in capital sentencing is due to a number of factors, including the independence of local prosecutors and juries and the lack of oversight on both prosecutorial and jury decisionmaking (Howe 2004).

Conclusion Empirical analyses of prosecutors, courts, and juries open the way for the application of racial threat theory, emphasizing the socially dominant white population’s use of state apparatus (e.g., police, courts, and prisons) to control, oppress, and subjugate a subordinate group, in this case nonwhites. Blalock (1967) initially posited that increased social, legal, and institutional influence and visibility of nonwhites

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would be perceived by whites as economic and political threats and would be countered by institutional responses, most identifiable through the criminal justice system, where overt, unveiled racism would be frowned upon even by those who approved of its goals. Capital sentencing in the post-Gregg era appears to be a sound example of racial threat theory. Several US Supreme Court justices have stated their opposition to the death penalty, despite their earlier positions in capital case decisions. Their responses are further evidence of the difficulty of removing racial bias from the capital sentencing process. Justice Lewis Powell noted in an interview with a biographer that he was wrong to cast the deciding fifth vote in the McCleskey decision and would now acknowledge that the death penalty was unworkable (New York Times 1994). Justice Harry A. Blackmun has reached this decision in his dissenting opinion in Callins v. Collins: “Despite the effort of the States and courts to devise legal formulas and procedural rules” to eliminate problems in capital sentencing, “the death penalty remains fraught with arbitrariness and discrimination” and concluded that it is time to “stop tinkering with the machinery of death” and discover another nondiscriminatory punishment for murder (Callins v. Collins 1994:1159). Retired US Supreme Court justice John Paul Stevens has noted that the McCleskey decision ignored the Baldus study findings that the murder of black victims was treated as less culpable than that of white victims—“a haunting reminder of once-prevalent Southern lynchings” (Stevens 2010). Justice Stevens has also stated that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes” (Stevens 2010). It has also been reported that Justice Antonin Scalia noted in a memorandum while McCleskey was pending in court that he believed that racial bias in capital sentencing was “real, acknowledged in the decisions of this court and ineradicable” (Baldus et al. 1998:1734).2 The response of these justices reveals how difficult it is to eliminate racial bias through legal requirements such as guided discretion in capital sentencing. Racism is often masked and unexpressed. Prejudicial stereotypes influence how people think about crime (S. L. Johnson 2007:189). These perceptions defy elimination through procedures. Abolition of the death penalty will eliminate the problem, but only at this level. The racial bias problems affecting the rest of the criminal justice system will still remain (Walker, Spohn, and DeLone 2011).

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Notes 1. Earlier analysis of the Maryland data also revealed a substantial difference in capital case processing between counties (Paternoster et al. 2004). 2. In the McCleskey decision, Justice Powell wrote the majority opinion (joined by Justices O’Connor, Rehnquist, Scalia, and White) while Justices Blackmun and Stevens joined Justices Brennan and Marshall in dissent.

7 Capital Case Processing in Georgia After McCleskey: More of the Same Jacqueline Ghislaine Lee, Ray Paternoster, and Michael Rocque

I

N THIS CHAPTER WE PRESENT AN ANALYSIS OF THE ROLE OF RACE IN

the Georgia capital sentencing system over the time period 1995 to 2004 with data collected by investigative journalists at the Atlanta JournalConstitution. The paper’s team of journalists investigated 2,328 murder convictions in Georgia. Of these, 1,317 were identified as cases where a sentence of death could have been sought by the prosecutor according to Georgia law and could have resulted in a sentence of death. Extensive data on case, defendant, and victim characteristics were collected, but the study by the paper was not as comprehensive as the Baldus data used in the Procedural Reform Study or the Charging and Sentencing Study, and discussed in previous chapters (Baldus, Woodworth, and Pulaski 1990).1 As important and comprehensive as it was, the Baldus study only covered the years 1973 to 1979, approximately the first half decade of the Georgia statute approved in Gregg v. Georgia (1976). Defenders of the statute could claim racial disparity may have existed in the first years of its existence, but as judges and state prosecutors became more acquainted with the law any vestiges of racial inequality would have diminished. Nevertheless, these data do provide a great deal of insight into the workings of Georgia’s capital sentencing system. With this in mind, a fitting paean to the work of David Baldus would be to update his analysis of the Georgia capital sentencing system to see if over time the statute has been able to purge racial disparity from the capital sentencing process

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some 20 years past McCleskey. One very important question we directly confront in this research is whether or not race of victim and geographic disparity in the Georgia prosecutors’ charging decision persists even after the McCleskey case brought the problem to light. Additionally, we utilize a methodology that is increasingly being used in the social sciences to overcome the known limitations of multiple regression in the absence of an experimental design: propensity score matching. In essence, propensity score matching allows us to create a matched sample of death penalty and non–death penalty cases, keyed on a multitude of important variables. This provides a cleaner estimate of the effect of victim- and geographyrelated factors in the decision to pursue the death penalty.

Research on Capital Sentencing Perhaps no other aspect of the criminal justice system has been scrutinized as heavily as the death penalty in the United States. The death penalty remains extremely controversial in America, with 32 permitting versus 18 prohibiting death sentencing. Aside from moral or philosophical arguments, research has tended to focus on whether the death penalty is effective (e.g., does it reduce crime?) and whether it is applied in a fair and consistent manner. Early research was decidedly mixed on the question of effectiveness, with some studies finding support for the deterrent effect of capital punishment (Ehrlich 1975) and others coming to different conclusions (Passell 1975; Sellin 1959). By the end of the twentieth century, however, most criminologists who studied the topic had become convinced that the death penalty does very little to influence crime (Radelet and Akers 1996). Another focus of death penalty research concerns whether it is applied fairly. If capital punishment is biased, that is, applied disproportionately, it would be unconstitutional. The death penalty and race have had a long and troubling history, starting with mainly southern lynching in the late nineteenth and early twentieth centuries, which were almost exclusively applied to African Americans (Ogletree 2002; Wood 2009). The official use of the death penalty and race has continued to be a topic of research, with evidence of racial bias emerging in the earliest studies (Paternoster 1991; Walker, Spohn, and DeLone 2011). Early twentieth-century research pointed to a race-of-offender/race-of-victim effect, with black offender/ white victim combinations resulting in death sentences at disproportionate

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rates (Paternoster 1991). Amid evidence of arbitrariness and racial disparity in capital sentencing, the death penalty was ruled unconstitutional in Furman v. Georgia (1972), a state where some of the most important research pertaining to race on the death penalty has taken place. Previous Research on Capital Sentencing in Georgia Prior to the research by David Baldus and colleagues, perhaps the most comprehensive study of capital sentencing in Georgia was the pre-Furman investigation of rape and the death penalty by Wolfgang and Riedel (1975, 1976). Examining 361 cases of rape in Georgia over the years 1945–1965, they reported that black offenders who raped whites were more likely to be sentenced to death than any other racial combination, even after controlling for ten case characteristics, such as the defendant’s prior criminal record, the commission of a robbery along with a rape, and the age of the victim. In fact, the black offender/white victim racial combination was the single most important variable in explaining which convicted rapists would be sentenced to death. Bowers and Pierce (1980) investigated racial disparities in the imposition of Georgia death sentences from 1972 to 1977. They found while 16.7% of the homicides involving a black offender and white victim resulted in a death sentence, only 4.2% of the homicides where a white killed a white and only 0.5% of homicides where a black defendant killed a black victim resulted in a sentence of death. Gross and Mauro (1989) examined data on over 2,000 homicides committed in Georgia from 1976 to 1980, and reported comparable evidence of racial disparity. They found a large race-of-victim effect: 8.7% of those suspected of killing white victims were sentenced to death while only 0.9% of those killing black victims received the same sentence, a ratio of nearly 10 to 1. Black defendants who killed white victims were the most likely to be sentenced to death (20.1%), followed by whites who killed whites (5.7%). Blacks who killed other blacks were the least likely to be sentenced to death (0.8%). After controlling for case characteristics in a statistical model, they found the odds of a death sentence for a defendant who killed a white victim were approximately seven times greater than the odds for a defendant who killed a black victim. In Baldus and colleagues’ Procedural Reform Study, the authors examined the extent to which the Georgia capital sentencing system showed evidence of racial discrimination and arbitrariness in murder cases before

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and after adoption of the post-Furman reforms. These data consisted of 156 defendants who were tried and convicted of murder pre-Furman and 594 offenders who were arrested and prosecuted for murder after Furman but before July 1, 1978. In the pre-Furman cases, they found after controlling for numerous background factors both defendant race and victim race were significantly related to whether a defendant received the death penalty—both black defendants and killers of white victims were more likely to be sentenced to death. The effect magnitudes were quite pronounced. The average odds of a death sentence for an African American defendant were 12 times higher than those for a white defendant, while the average odds of a death sentence for those who killed a white victim were 4.3 times higher than for those who killed a black victim (Baldus, Woodworth, and Pulaski 1990). In the post-Furman data from the Procedural Reform Study, they found that with case characteristics closed there was no statistically significant effect for the race of the defendant on the odds of a death sentence, but for killers of whites the odds of a death sentence was 4.3 times higher than for those who killed blacks (Baldus, Woodworth, and Pulaski 1990). In addition, the strongest evidence of victim-based racial disparity was in the cases at the midrange of aggravation. Baldus and colleagues’ (1990) post-Furman Charging and Sentencing Study used a multivariate logistic regression model containing 39 explanatory variables. Averaged across all ranges of aggravation (e.g., low, middle, and high), the difference in the proportion of death sentences was 20 points. At the lowest and highest levels of case aggravation, however, the difference was 2 and 0 points, respectively, but in the midlevel the difference was 56 points. In addition to racial disparity, moreover, the Charging and Sentencing Study revealed profound capital sentencing disparity by geographic region within the state of Georgia. The probability that a death-eligible offense will be both charged as a capital crime and result in a death sentence was higher in some areas of the state. For example, the death sentencing rate in rural areas was 1.4 times higher than in urban areas, and the north-central portion of the state had a death sentencing rate that was 2.5 times higher than in Fulton County (Atlanta) and 3.7 times higher than in the northern part of the state. Finally, in a study with a limited number of explanatory variables from the Supplemental Homicide Reports of the FBI, Pierce, Radelet, and Paternoster examined racial disparities in Georgia death sentences from 1989 to 1998 (see American Bar Association 2006). After controlling for two case characteristics (the presence of two aggravating circumstances: the commission of another felony along with the murder

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and the killing of multiple victims), they found that within the subgroup of cases where neither of the two aggravating factors was found, those who killed whites were nearly nine times more likely to be sentenced to death than those who killed blacks. When one of two aggravating factors was present, those who killed whites were over three times more likely to be sentenced to death, and among the most egregious cases where both aggravating factors were present, the race-of-victim effect was greatly diminished. Killers of whites were only 1.61 times more likely to be sentenced to death than those who killed black victims. In sum, the history of Georgia capital sentencing both before and immediately after the Furman decision is not a flattering one. The empirical evidence consists of various studies with both weak and strong controls for extralegal factors and, overall, points to the fact defendants who assail white victims are substantially more likely to be charged with a capital crime by the prosecutor and sentenced to death by a jury. In addition, there are marked differences in the likelihood of a death sentence depending upon where in the state the crime was committed. The question remains, however, whether after several decades of experience with the statute, capital case processing is more evenhanded or whether past disparities persist. The study conducted by Baldus and colleagues includes no data after 1980. Subsequent studies are not as comprehensive and the data do not cover longer periods of time. It is conceivable the patterns of racial and geographic disparity observed by Baldus et al. and others have dissipated as state actors (prosecutors, in particular) accumulated more experience with the statute and were more informed by the empirical findings of previous studies. We report below on the results of a study of Georgia capital sentencing practices over the years 1995 to 2004. Because the evidence consistently suggests racial disparity is greatest for the race of the victim rather than the offender, we will concentrate our efforts on that variable. Further, since previous studies consistently have shown that racial disparity is strongest at the level of prosecutorial decisionmaking, we will concentrate our analysis on Georgia prosecutors’ decision to seek a death sentence given that the case is death eligible.

Data Sources Investigative reporters for the Atlanta Journal-Constitution conducted a data collection of 2,328 murder convictions in Georgia from January 1, 1995, to December 31, 2004. Information on each case was gathered

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from a number of different sources: Georgia Supreme Court decisions, transcripts of trials and guilty pleas, police reports and investigative summaries, medical examiners’ reports, search and arrest warrants, indictment and sentencing sheets, trial judges’ reports, news media accounts, and documents provided by the Georgia Department of Corrections and the Department of Human Resources. Additional information was obtained from the Georgia Bureau of Investigation, local prosecutor files, and interviews conducted with prosecutors, defense attorneys, judges, and law enforcement officials. From these sources, a rather detailed database was created. Based on this information, every homicide was examined by the Journal-Constitution investigators to determine if it was death eligible under Georgia law by containing at least one statutory aggravator. A total of 1,317 death-eligible homicides were identified. From this initial pool of death-eligible homicides, 15 cases were eliminated because the race of the offender was Native American, Asian, or “other.”2 This left 1,302 cases for analysis; these death-eligible Georgia killings represent the universe of potentially capital crimes for which the death penalty could have been imposed from 1995 to 2004 and comprise the data for our analysis of Georgia prosecutors’ charging decisions.

Results Unadjusted Racial Effects Out of the 1,302 death-eligible homicides committed in Georgia from 1994 to 2005, prosecutors charged the offense as a capital crime in only 341, for a death charging probability of .262. The probability of the prosecutor seeking death over this more recent time period is slightly lower than that reported by Baldus and colleagues with their data from the first few years of the Georgia statute, when the probability of a capital charge given a death-eligible crime was .326. With less than onethird of all capital crimes resulting in a death request by the prosecutor, it is clear Georgia prosecutors exercised considerable discretion in their respective decisions to seek a death sentence. What factors explain this use of discretion? Without adjusting for any case characteristics it can be seen that both race of offender and race of victim have an effect on the prosecutors’ charging decisions. Table 7.1 reports the probability of the prosecutor

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seeking death by race of offender, race of victim, and offender/victim racial combinations. The race of the offender is statistically related to prosecutors’ decisions to seek a death sentence, with white defendants significantly more likely than black defendants. There is, however, an even more pronounced effect for the race of the victim. The probability a prosecutor might seek death in a case with a white victim is 0.410, while in black victim cases it is only 0.156 (over two and one-half times higher for white victim cases). An important reason why white offenders are castigated compared with black offenders lies in the fact white offenders are overwhelmingly more likely to kill a white victim (where the probability that the prosecutor will seek a death sentence is higher than for black victims) while black offenders are substantially more likely to kill black victims (where death sentencing probabilities are much lower). In white offender slayings, the victim is also white 83% of the time, while in black offender slayings the victim is also black in 75% of the homicides. The relationship between the offender/victim racial combination and the prosecutors’ charging decisions is shown in the bottom panel of Table 7.1. There is a consistent gradient for both decisions. Intraracial homicides involving blacks have the lowest probability of having death requests sought and imposed, followed by white-on-black killings, then black-on-white killings, with the highest probabilities of both death seek-

Table 7.1 Probability of Prosecutor Seeking a Death Sentence by Offender and Victim’s Race and Offender/ Victim Racial Combinations

Characteristics of Case Race of Offender White Black Race of Victim White Black Offender/Victim Racial Characteristics Black Kills Black White Kills Black White Kills White Black Kills White Note: * p < .05; ** p < .01; *** p < .001

Probability of Seeking Death

Decision to Seek Death/Total Cases

.392 .210

(145/370)*** (196/932)

.410 .156

(223/544)*** (118/758)

.150 .222 .427 .388

(104/695) (14/63) (131/307) (92/237)

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ing and imposition for white offenders who kill other whites. Holding the race of the victim constant, the difference between white and black offenders is greatly diminished, but does not disappear. The racial differences found in Georgia here for the years 1994 to 2005 are very similar to those reported by Baldus and colleagues in the postFurman data. With respect to the prosecutors’ charging decisions they found probabilities are slightly higher for white than for black offenders, and substantially higher for white than for black victims. One difference is that in the Baldus data, covering the first few years of the Georgia statute, the highest probabilities of a capital murder charge are reserved for black offenders who kill white victims and second highest for white offenders who kill white victims. Both our and Baldus et al.’s data find the lowest probabilities of death requests are for homicides where both offender and victim are black. Unadjusted Geographic Effects In Table 7.2, death charging rates are presented for Georgia prosecutors in various geographic designations. There are substantial differences in how potential capital cases are treated in the state. The probability a prosecutor will seek a death sentence is substantially higher in rural than in urban areas of Georgia (.337 vs. .196).3 In fact, prosecutors in rural areas of Georgia are almost twice as likely as those from urban areas to seek a death sentence. Table 7.2 also breaks Georgia down into identifiable geographic regions. Prosecutors in judicial circuits in central Georgia sought death in almost one-half of the death-eligible cases (approximately 41%), while those in metro and southern Georgia sought death less than 20% of the time.4 The difference in the probability of a death sentence found in urban/rural areas and different regions of the state are very comparable to those observed by Baldus et al. (1990) a few years after Furman. Baldus et al. (1990) found that a death sentence was about one and one-half times more likely in a rural than in an urban judicial circuit. Juries in central Georgia judicial circuits were more than three and one-half times more likely to impose death than those in the north. Our findings, noting considerable geographic differences in how Georgia prosecutors seek a death sentence, are very comparable to those of Baldus et al. (1990) in their earlier study. Where unadjusted differences are concerned, there seems to be at least as much racial and geographic disparity in the Georgia prosecutors’

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Table 7.2 Probability of Prosecutor Seeking a Death Sentence by Location of the Homicide

Location

Probability of Seeking Death

Decision to Seek Death/Total Cases

.337 .196

(204/605)*** (137/698)

.405 .188 .389 .163 .342

(63/153)*** (99/528) (58/149) 36/221) (91/266)

Urban/Rural Urban Rural Region of Georgia Central Metro North South Southeast

Note: * p < .05; ** p < .01; *** p < .001

charging decisions in the 1995–2004 period as in the late 1970s when the statute was in its infancy. It remains to be seen, however, whether these unadjusted differences persist when important case characteristics are considered. We model the consideration of racial and nonracial factors as well as geographic factors in the charging decisions two ways. We first estimate a series of multivariate logistic regression models with capital murder charge as the outcome variable and controls including race and geography, along with 25 variables representing relevant case characteristics. A description of these case characteristics is included in the Appendix at the end of the chapter. We also estimate a propensity score matching model to examine racial and geographic disparities in the decision to seek a death sentence. Adjusted Racial Effects Table 7.3 presents the results of a series of multivariate logistic regression models examining the relationship between legally relevant factors and whether a prosecutor opts for a death sentence. These legally relevant factors are divided into substantive areas for ease of understanding. As Table 7.3 indicates, death requests by Georgia prosecutors are influenced by important legally relevant factors, and influenced in a plausible way. Prosecutors are significantly more likely to seek a death sentence when the victim is female, when the victim is vulnerable in terms of

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Table 7.3 Logistic Regression Results for the Decision of the Prosecutor to Seek a Death Sentence, Case Characteristics Model 1 Offense/Offender Prior Violent Convictions Female Victim Young or Old Victim Strangers Crime Not at Home Motive Jealousy/Sex Multiple Victims Statutory Aggravating Factorsa B1 Aggravator B2 Aggravator B3 Aggravator B4 Aggravator B6 Aggravator B8 Aggravator B9 Aggravator B10 Aggravator Quality of Evidence Confession Video Evidence Eyewitness Nonstatutory Factors Aggravators Mitigators Type of Weaponb Club Knife Hands Rope Other Weapons Racial Factors White Offender White Victim Constant

Model 2

Model 3

Model 4

Model 5

–.168 .661*** .488** .757*** .425** .714*** .865*** .546* 1.494*** .486 .126 1.389*** 3.339*** .664 1.712* .753*** 1.193*** –.284 .436*** –.060 1.312*** .327* –.456 –.066 –.191 .484* .888*** –1.945 –2.576

–1.227

.369 .373 .838*** .797*** –1.120 –1.149

Notes: * p < .05; ** p < .01; *** p < .001 a. The reference category here is the B7 aggravator (Georgia statutory aggravating circumstances are listed in the chapter Appendix; there were no cases with a B5 aggravator). b. The reference category here is the use of a gun.

being very young or very old, when the victim and offender are strangers, when the crime was committed outside the victim’s home, if the motive for the murder was jealousy or sex, and if there was more than one mur-

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der victim.5 Each offense was coded as the facts of the crime fit one or more of the 10 statutory aggravating factors under the Georgia death statute (see the chapter Appendix). Each statutory factor was treated as a dummy variable with aggravating factor B7 (the murder was outrageously or wantonly vile . . .) as the reference category. Relative to the “wantonly vile” aggravator, prosecutors were more likely to seek a death sentence if the murder was committed by someone with a prior conviction for a capital felony (B1); if the murder occurred during the commission of another felony (B2); if the offender acted as a killing agent (e.g., murder for hire) or directed another person to commit the murder (B6); if the murder occurred against a law enforcement officer, corrections officer, or a firefighter (B8); or if the murder was committed for avoiding arrest or lawful custody (B10). The strength of the evidence matters as well in terms of the prosecutor’s charging decision. Georgia prosecutors were more likely to charge a death-eligible crime as a capital offense when there was a confession from the defendant and when there was some form of videotaped evidence. Each homicide was also coded with respect to the presence of nonstatutory aggravating factors (such as torture or postmortem abuse, the victim begged for their life, the offender tried to hide the body, etc.) and mitigating factors6 (defendant was not the actual triggerman, defendant was influenced by drugs). The presence of a nonstatutory aggravator had a powerful influence on whether the prosecutor sought a death sentence, while the parameter estimate for the presence of a mitigating factor, although negative, was not significantly different from zero. Finally, the type of weapon made a difference. Relative to the use of a gun to conduct the murder, Georgia prosecutors were significantly more likely to seek death if a club or a knife was used in the killing or if the offender used his/her own hands. In sum, the evidence from Table 7.3 clearly shows that there is some rationality to the Georgia prosecutors’ charging decisions. Factors that might make a case either more egregious or with stronger evidence are more likely to result in a capital charge. In Table 7.4, logistic regression models including the legitimate case characteristics from Table 7.3 have racial and geographic factors added, first singly then together, so as to ascertain whether race and geography are related to the prosecutor’s charging decision. Model 1 of Table 7.4 adds the race of the offender and victim to the model. Of those legally relevant factors, race of the offender seems to influence Georgia prosecutors’ charging decisions. White offenders are significantly more likely

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than nonwhites to be charged with a capital crime, and killers of white victims more than those with nonwhite victims. Consistent with numerous post-Furman studies of capital sentencing, the effect of the victim’s race is far more influential than the offender’s race. The logistic regression coefficient for the victim’s race indicates the prosecutor will charge a deatheligible offense as a capital crime almost two and one-half times more often for those who kill whites than for those who kill nonwhites (compared with an odds multiplier of only 1.6 for the race of the offender). Model 2 includes locations where crimes were committed, in either an urban or rural area of Georgia. Results demonstrate death-eligible crimes committed in urban areas of Georgia are significantly less likely than those in rural areas to result in a capital charge, net of more than 20 legally relevant factors. Model 3 introduces particular geographic regions of Georgia, finding that, compared with the southeast of Georgia, death charges are significantly less likely in metropolitan areas (like Atlanta) and southern Georgia. Findings indicate both a strong race-of-victim and geographic effects, particularly in the urban/rural distinction during the period 1995 to 2004. These results are analogous to Baldus et al.’s (1990) in their earlier data. Models 4 and 5 include both racial and geographic factors together with legally relevant factors. Model 4 shows victim’s race is virtually unchanged from that found in Model 1, the odds of a death request being 2.3 times higher for those who kill white victims than for those who kill nonwhites. The effect for the race of the offender, however, is reduced in this model by about 24% and is no longer statistically significant. The race of the victim coefficient for an urban area is reduced by approximately one-third, but remains significant at p < .001. When region of Georgia is substituted for urban/rural as the geographic measure, the same results emerge. The effect for the race of the offender is no longer statistically significant, while the race of the victim continues to be significant. Death requests are less likely in metro and southern Georgia than in southeast Georgia. It is remarkable in that the same pattern of racial effects observed in data collected in Georgia in the late 1970s has been replicated 25 years later. The undeniable conclusion here is that the decision to seek death is still heavily influenced by the race of the victim and region where the crime occurred. The analyses were tested for sensitivity with propensity score matching studies. These were useful although not often used in observational studies during the 1970s and have no correlate in Baldus’s data analysis (Rosenbaum and Rubin 1983, 1984). The propensity score is

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Table 7.4 Logistic Regression Results for the Decision of the Prosecutor to Seek a Death Sentence, Adjusted Racial and Geographic Factors

Offense/Offender Prior Violent Convictions Female Victim Young or Old Victim Strangers Crime Not at Home Motive Jealousy/Sex Multiple Victims Statutory Factorsa B1 Aggravator B2 Aggravator B3 Aggravator B4 Aggravator B6 Aggravator B8 Aggravator B9 Aggravator B10 Aggravator Quality of Evidence Confession Video Evidence Eyewitness Nonstatutory Factors Aggravators Mitigators Type of Weaponb Club Knife Hands Rope Other Weapons Racial Factors White Offender White Victim Geographic Factors Urban Central Metro North South Constant R2

Model 1

Model 2

Model 3

Model 4

Model 5

–.037 .573*** .423* .282 .383* .659* .879***

–.100 .671*** .428* .349 .458** .614* .904***

–.123 .669*** .437* .449 .483** .686* .927***

–.020 .585*** .394 .285 .406* .603* .900***

–.054 .613*** .384 .367 .428* .621* .917***

.564* 1.063*** 1.128* .644*** 1.179*** 3.979*** 1.302 1.585*

.493 1.067*** 1.096* .754*** 1.543*** 4.072*** 1.085 1.548*

.631* 1.177*** .878 .748*** 1.376*** 4.225*** .865 1.439

.543* 1.028*** 1.210* .662*** 1.297*** 3.879*** 1.142 1.637*

.631* 1.124*** 1.085* .655*** 1.170*** 3.992*** .959 1.497*

.663*** .704* –.154

.618*** .801* –.203

.541*** .728* –.209

.631*** .706* –.107

.551*** .695* –.099

.712*** –.239

.708*** –.197

.744*** –.242

.724*** –.251

.753*** –.288

1.054** .411* –.383 –.416 –.117

1.001** .435* –.300 –.245 –.104

.933** .484* –.238 –.195 –.085

1.120** .405* –.367 –.311 –.143

1.066** .458* –.335 –.257 –.114

.484* .888***

.369 .838*** –.767***

–.517*** .193 –.952*** .159 –1.174***

–3.791 .33

.30

.373 .797***

.33

.240 –.763*** –.159 –1.053*** .34

.36

Notes: * p < .05; ** p < .01; *** p < .001 a. The reference category here is the B7 aggravator (Georgia statutory aggravating circumstances are listed in the chapter Appendix; there were no cases with a B5 aggravator). b. The reference category here is the use of a gun.

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the probability of some “treatment” assigned as conditional on observed covariates. The treatment in the present study is the killing of a white victim. The idea being, conditional on the propensity score, the distribution of the observed covariates will be similar between the treated (white victim) and untreated (nonwhite victim) cases. From the stock of 25 legally relevant factors employed previously, the models estimated the propensity that a white victim would be killed versus a black victim and matched cases using a one-to-one matching method with a .01 caliper and no replacement.7 The same procedure was followed using the dichotomy urban/rural as the propensity. With respect to the race of the victim propensity model, there were 1,132 out of 1,302 (87%) cases on support or matched. Table 7.5 reports the covariate balance before and after matching. Before matching, 14 of the 27 covariates were unbalanced (there was a significant difference between white and nonwhite victim cases), while after matching all of the covariates are balanced. There was good reason to assume, therefore, that the subgroup of 1,132 matched cases is suitably comparable, at least with respect to these observed covariates. For the 1,132 matched cases, the probability the prosecutor would seek death was 0.35 when a white victim was killed and 0.19 when a nonwhite victim was killed. Assailants of white victims were on average 1.8 times more likely to be charged with a capital offense than a matched case involving a nonwhite victim. The difference was statistically significant (p < .001). The propensity analysis for cases occurring in urban jurisdictions tallied only 945 cases and approximately 350 or 27% of the cases could not be matched with a caliper of .01 and no replacement. Consequently, cases in the urban/rural propensity score matching were lost. Table 7.5 shows before case matching 10 of the covariates were unbalanced, but none were unbalanced after matching, again suggesting the urban and rural cases were comparable on the cluster of observed covariates. After matching, the probability a prosecutor might seek a death sentence given a death-eligible crime was 0.24 in urban jurisdictions and 0.30 in rural jurisdictions. Although the probability of a death request was slightly higher in rural areas of Georgia, this difference appeared only marginally significant at p < .10. The results of the propensity score matching procedure show Georgia prosecutors are more likely to request a death penalty in white victim cases in contrast to those where a nonwhite was the victim. Urban prosecutors are slightly less likely than rural ones to seek death in comparable death-eligible cases.

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Table 7.5 Covariate Balance Before and After Case Matching on Race of Victim and Urban/Rural (reported as proportions) Race of Victim (N = 1,132) Before Matching Variable

After Matching

Victim

Prior Violent Conviction Nonwhite White Female Victim Nonwhite White Young/Old Victim Nonwhite White Strangers Nonwhite White Crime Not at Home Nonwhite White Motive Sex/Jealousy Nonwhite White Multiple Victims Nonwhite White B1 Aggravator Nonwhite White B2 Aggravator Nonwhite White B3 Aggravator Nonwhite White B4 Aggravator Nonwhite White B6 Aggravator Nonwhite White B7 Aggravator Nonwhite White

Urban/Rural (N = 945) Before Matching

After Matching

Location

.21* .15

.18 .17

Urban Rural

.20* .37

.20 .39

.32* .39

.37 .34

Urban Rural

.33 .37

.39 .35

.13* .18

.16 .17

Urban Rural

.13* .18

.15 .14

.18* .31

.23 .24

Urban Rural

.24 .23

.24 .25

.39* .50

.43 .43

Urban Rural

.48* .38

.41 .41

.09 .08

.07 .09

Urban Rural

.07* .10

.10 .08

.12 .14

.12 .12

Urban Rural

.13 .10

.12 .08

.09 .09

.08 .09

Urban Rural

.09 .08

.08 .08

.78* .84

.82 .82

Urban Rural

.77* .83

.81 .83

.03* .01

.01 .01

Urban Rural

.03* .01

.02 .01

.53* .69

.64 .64

Urban Rural

.59 .61

.61 .65

.03* .07

.04 .03

Urban Rural

,06 .04

.05 .04

.37 .40

.38 .39

Urban Rural

.37 .40

.40 .37 (continues)

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Table 7.5 continued Race of Victim (N = 1,132) Before Matching Variable

After Matching

Victim

B8 Aggravator Nonwhite White B9 Aggravator Nonwhite White B10 Aggravator Nonwhite White Confession Nonwhite White Video Nonwhite White Eyewitness Nonwhite White Aggravators Nonwhite White Mitigators Nonwhite White Club Nonwhite White Knife Nonwhite White Hands Nonwhite White Rope Nonwhite White Other Nonwhite White Gun Nonwhite White Note: *p at least < .05

Urban/Rural (N = 945) Before Matching

After Matching

Location

.01 .01

.01 .01

Urban Rural

.01 .01

.01 .01

.01 .01

.01 .01

Urban Rural

.01 .01

.01 .01

.01 .01

.01 .01

Urban Rural

.01 .01

.01 .01

.25* .31

.28 .29

Urban Rural

.23* .33

.32 .28

.03* .07

.03 .04

Urban Rural

.04 .05

.05 .06

.48* .32

.38 .38

Urban Rural

.49* .33

.33 .34

.25 .27

.25 .25

Urban Rural

.26 .26

.25 .23

.51* .59

.55 .52

Urban Rural

.52 .56

.54 .55

.05 .06

.05 .04

Urban Rural

.05 .05

.05 .06

.16 .15

.17 .16

Urban Rural

.14 .17

.17 .16

.13 .13

.13

Urban Rural

.12 .14

.13 .12

.03 .03

.03 .03

Urban Rural

.04* .02

.03 .02

.14 .15

.15 .16

Urban Rural

.13 .16

.15 .14

.65* .60

.62 .60

Urban Rural

.68* .57

.63 .61

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Discussion In their groundbreaking Charging and Sentencing Study presented to the US Supreme Court in McCleskey v. Kemp (1987), David Baldus and his colleagues found the risk that a Georgia prosecutor would charge a deatheligible crime as a capital offense was significantly higher in white victim cases and in cases occurring in urban judicial jurisdictions. Those data used in the Baldus study were from homicides occurring in Georgia over a time period from 1973 to 1979. Updated information as to how Georgia prosecutors decide capital cases some 30 years later closely fit Baldus et al.’s (1990) findings. With detailed data collected by investigative journalists at the Atlanta Journal-Constitution on 1,302 death-eligible homicides committed in the state of Georgia between 1995 and 2004, this chapter focused on whether Georgia prosecutors were influenced by the victim’s race and by the geographic location of the homicide. In a multivariate logistic regression analysis we found prosecutors were more likely to seek a death sentence in white victim cases and prosecutors in urban areas (and southern judicial circuits) were less likely. In addition, a propensity score matching analysis was conducted and found a significant relationship between death requests and white victim cases, with an urban effect significant only at p < .10. Propensity score matching presented difficulties in pairing cases with a matching caliper, resulting in a significant loss of cases. This circumstance suggests researchers be aware of the matching issue when comparing logistic regression results with propensity score matching. We recommend to researchers using propensity score matching they employ different procedures (different calipers, with and without replacement, inverse probability weighting) and report the sensitivity of their results. While propensity score matching is a valuable tool for death penalty researchers, not readily available to Baldus, it must be used both cautiously and transparently. In sum, nearly 30 years post-Baldus, evidence of racial effects remains robust in this analysis of Georgia capital sentencing. These results cannot be taken lightly in that they indicate not only a significant effect of bias, but when compared to Baldus’s baseline analyses, an enduring pattern of inequality emerges in a state executing moderate numbers of offenders (54 since 1977). Furthermore, Georgia, in contrast to national trends, has increased its totals since 2001 (30) relative to the first 25 years (23) after resuming executions.

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Appendix A: Case Characteristics 1. Prior violent convictions for offender. 2. Female victim. 3. Victim was younger than 13 or older than 60. 4. Victim and offender were strangers. 5. Crime was not committed in victim’s home. 6. Motive for the crime was either jealousy or sex. 7. Multiple-victim killing. 8. Aggravating Factor B1. (See Appendix B for a detailed description of statutory aggravators.) 9. Aggravating Factor B2. 10. Aggravating Factor B3. 11. Aggravating Factor B4. 12. Aggravating Factor B6. 13. Aggravating Factor B8. 14. Aggravating Factor B9. 15. Aggravating Factor B10. 16. Defendant confessed. 17. Video evidence. 18. Eyewitness evidence. 19. Nonstatutory aggravating factors—torture, postmortem abuse, victim begged for life, victim bound, victim killed in front of children, multiple means to kill victim, seven or more wounds. 20. Mitigating factors—offender was female, crime committed in alcohol abuse, offender not triggerman, offender 17 years of age, offender has a history of drug abuse. 21. Weapon type—knife. 22. Weapon type—club. 23. Weapon type—hands. 24. Weapon type—rope. 25. Weapon type—other weapon.

Appendix B: Georgia Statutory Aggravating Factors B1: The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony. B2: The offense of murder, rape, armed robbery, or kidnapping while the offender was engaged in the commission of another capital felony or aggravated battery or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree. B3: The offender, by his act of murder, armed robbery, or kidnapping, knowingly created a great risk of death to more than one person in a public place by means of a weapon or device that would normally be hazardous to the lives of more than one person. B4: The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value. B5: The murder of a judicial officer, former judicial officer, district attorney or solicitorgeneral, or former district attorney, solicitor, or solicitor-general was committed during or because of the exercise of his or her official duties.

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B6: The offender caused or directed another to commit murder or committed murder as an agent employee of another person. B7: The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. B8: The offense of murder was committed against any peace officer, corrections employee, or firefighter while engaged in the performance of his official duties. B9: The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement. B10: The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.

Notes 1. In spite of the court’s decision in McCleskey, the Baldus study had a profound impact on capital sentencing research. It spawned countless other studies in other states (e.g., Bowers and Pierce 1980; Gross and Mauro 1989), and the general methodology in each study was inspired by the “gold standard” established by Baldus and colleagues in their Georgia study. Although no state statute has yet been declared unconstitutional because of a claim of racial discrimination, studies triggered by David Baldus have been used in numerous trial and appellate court challenges of state capital punishment laws (Blume, Johnson, and Eisenberg 1998). It also helped convince two of the McCleskey justices, Harry Blackmun and John Paul Stevens, to oppose the death penalty after the fact (Gross 2012). 2. Hispanic offenders were further identified as either white Hispanic or black Hispanic according to their ethnicity and they were coded as white and black, respectively. To be coded as having a white victim, at least one of the victims killed had to have been white. 3. Our designation of urban v. rural counties follows exactly the coding scheme in Baldus, Woodworth, and Pulaski (1990). The following judicial circuits in Georgia were all coded as urban: Atlanta, Augusta, Chattahoochee, Cobb, Dougherty, Eastern, Macon, Rome, Southern, Stone Mountain, and Western. 4. Central Georgia included the following judicial circuits: Alcovy, Coweta, Dublin, Griffin, Macon, Ocmulgee, Toombs, and Towaliga; metro Georgia: Atlanta, Bell-Forsyth, Blue Ridge, Clayton, Cobb, Douglas, Flint, Gwinnett, Paulding, Rockdale, and Stone Mountain; north Georgia: Appalachian, Cherokee, Conasauga, Enotah, Lookout Mountain, Mountain, Northeastern, Northern, Piedmont, Rome, Tallapoosa, and Western; south Georgia: Chattahoochee, Cordele, Dougherty, Houston, Pataula, South Georgia, Southern, Southwestern, and Tifton; southeast Georgia: Alapaha, Atlantic, Augusta, Brunswick, Eastern, Middle, Oconee, Ogeechee, and Waycross. 5. While some of these factors may be suspect as “legally relevant” variables (e.g., the motive should not make any difference as to whether or not death is sought nor should the location of the crime), our intention here is

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ultimately to hold as many “reasonable” legal factors constant before examining the influence of race or geography. 6. The Georgia capital statute only lists aggravating factors, so all factors in mitigation of penalty are nonstatutory. 7. We estimated several different propensity score matching models using only identical matching scores and not nearest neighbors, the size of the caliper, and with and without replacement. In each case the difference in the probability of a death request for white and black victim cases was significant (consistently being a difference in proportions of .20), with only the extent of the balance and the size of the matched sample differing. The model we report in the text is one of the most conservative results.

8 Addressing Contradictions with the Social Psychology of Capital Juries and Racial Bias Jamie L. Flexon

MPANELING A CAPITAL JURY IS A DIFFICULT PROCEDURE, REQUIRING each potential juror to be death qualified, a process of vetting where a voir dire examination excludes persons from the panel who cannot, or will not, due to their beliefs or sentiments, impose a death sentence (Wainwright v. Witt 1985; see also Witherspoon v. Illinois 1968, Lockhart v. McCree 1986). This winnowing of the jury pool is considered by trial attorneys, both for the defense and for the prosecution, as the key element in a capital trial, where cases are won and lost. Death qualification concentrates like-minded jurors on deliberative panels, often having particular stereotypes, attitudes, and beliefs that cause them, as a whole, to be more likely to render biased verdicts than a jury of randomly selected individuals. Haney (1984) and Gross (1996) found death-qualified jurors more likely to convict, and the Supreme Court noted in Batson v. Kentucky (1986) the exclusionary functions of death qualification–created panels tended to eliminate women and nonwhites while overrepresenting groups tending to convict and condemn (e.g., older white men). The standard for excusing a prospective capital juror for cause was reified by the Supreme Court in Wainwright v. Witt: “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath” (Wainwright v. Witt 1985:424). Those jurors capable of rendering a ver-

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dict must be death qualified as well as life qualified, that is, capable of determining a life sentence. Individuals who would forego deliberations automatically finding for death are excused as not life qualified (see Blume, Johnson, and Threlkeld 2001). The qualification process effectively sets up a legal paradox where death qualification produces capital jurors in line with the requirements of the US Constitution and specifically concerning the 6th and 14th Amendments, while research shows removal of jurors for cause through death qualification creates conviction-prone panels. The court dealt with the question in Lockhart v. McCree (1986:165): “Does the Constitution prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial?” In Lockhart, 6th and 14th Amendment claims were raised with the respondent-defendant Ardia McCree, arguing that exclusions from the capital jury, carrying out the death qualification process, violated Mr. McCree’s rights to an impartial jury selected from a representative cross-section of the community. Studies were proffered to the court in support of McCree’s claim indicating deathqualified juries were more likely to convict (conviction-prone) than broader panels whose level of opposition to the death penalty might have been prohibitive and excused as not death qualified. In rejecting McCree’s argument, the fundamental sticking point to the court was that excluded jurors did not satisfy criteria making them a distinctive group in the community, which would have given rise to a legitimate claim. According to the High Court in Lockhart: The essence of a fair cross-claim is the systematic exclusion of a “distinctive group” in the community—such as African-Americans, women, and Mexican-Americans—for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case. Groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as “Witherspoon-excludables” at issue here, are not “distinct groups” for faircross-section purposes. (Lockhart v. McCree 1986:168)

Death qualification is therefore carefully designed to serve the state’s legitimate interest in obtaining a single jury able to properly and impartially apply the law to the facts of the case at both the guilt and sen-

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tencing phases of a bifurcated capital trial. It is also worth noting the court identified juror beliefs about capital punishment as within the individual’s control. Lockhart is valuable for understanding the persistent tension concerning claims of bias in capital cases and illustrates the disjuncture between the Supreme Court and research finding death qualification produces a constitutionally impermissible slant favoring convictions among juries. The High Court found excluding a segment of attitudes, which was determined by researchers as important to balancing out capital juries, did not violate the Constitution. The court determined impartial juries conscientiously apply the law and find the facts, and that the impartial jury requirement, secured by statute, guided discretion in determining guilt and innocence in capital cases. Irrespective of the court’s legal analysis, research into death qualification indicates capital juries exhibit a conviction-prone bias during both the guilt and sentencing phases, meaning stereotypic information plays a role in making factual assessments and arriving at verdicts (Bargh 1999; Bodenhausen and Macrae 1998). Given that stereotypes and attitudes gleaned from socially constructed notions of crime and its control (e.g., typical “black” offenders, the need for tough-on-crime responses) influence jurors during their deliberations, the implications for attitude extremity, jury composition, and polarization can be highly problematic to the capital punishment process. With regard to jurors who fail to recognize their biases and believe their deliberation to be free of taint, it seems fundamental that they are likely parties to a “symbolically formalized social process that can promote discriminatory outcomes” (Ellsworth 1993; Flexon 2012; see also Hart 1995; Landy and Aronson 1969; Lerner and Goldberg 1999; Moran and Cutler 1991; Villemur and Hyde 1983). With this in mind, the discussion necessarily turns to those juror characteristics most often tied to disparate capital case outcomes.

Juror Characteristics Contrary to the Supreme Court’s assertion in Lockhart, attitudes held by capital jurors do in fact color their perceptions, often unconsciously and largely outside of their control. Indeed, a jury’s deliberations are intimately linked and subject to the aggregate beliefs of the members (Lynch and Haney 2000, 2009). Research has convincingly shown among death-

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qualified and non-death-qualified individuals, decisionmaking varies along demographic differences and variations in the constellation of attitudes and beliefs. Fitzgerald and Ellsworth (1984) as well as Young (1991, 2004) identified attitudinal patterns with predictive power, capable of demonstrating how decisions are made given certain distinguishing beliefs of jurors. Juror characteristics identified as having a correlation with capital sentencing decisions include sex, age, race, education level, as well as region of domicile, religious beliefs, and political affiliation (Applegate et al. 2000; Bohm 1998; Eisenberg, Garvey, and Wells 2001; Flexon 2006, 2012; Thompson et al. 1984). Females are consistently less likely to favor capital punishment than males (Bohm 1998; Cochran and Sanders 2009). African Americans are less likely to favor the death penalty than whites (Barkan and Cohn 1994; Bohm 1998; Cochran and Chamlin 2006; Flexon 2006; Peffley and Hurwitz 2007; Young 1991; Unnever and Cullen 2010), and more recent research has identified racial stereotypes (nonwhite criminality, African American tendencies toward violence) as significantly associated with death penalty support—a loose proxy for death qualification (Flexon 2006, 2012). Beyond the common demographic research, scholars also examine particular constellations of beliefs and their impact on capital juror decisionmaking. In Robert Fitzgerald and Phoebe C. Ellsworth’s (1984) seminal work, attitudes of potential jurors for possible biases against capital defendants were examined.1 They found demographic differences between the two groups consistent with the established body of research in this area (see Bronson 1970; Ellsworth 1993; Jurow 1971; Zeisel 1968; Flexon 2006, 2012), indicating death-qualified juries are more likely to agree with prosecution arguments and embrace a general crime control orientation over due process model (Ellsworth 1993; Fitzgerald and Ellsworth 1984; Sandys 1998). In such cases, greater proportions of African Americans and females were excluded through the process of death qualification (Fitzgerald and Ellsworth 1984). Previous research further demonstrates individuals supporting the death penalty are likely to espouse a constellation of punitive beliefs and attitudes related to the criminal justice system, and that support for the death penalty is considered a symbolic attitude of such beliefs (see Ellsworth 1993). According to Ellsworth (1993) death penalty supporters are “more concerned about high levels of violent crime,” less sympathetic toward criminal defendants, “more suspicious of defense attorneys,” and “exhibit more favorable attitudes toward prosecuting attorneys and the police” (pp. 49–50; see also Fitzgerald and Ellsworth 1984).

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Research also indicates attitudes concerning the death penalty are tied to racially biased beliefs. For example, Young (2004) has identified that those likely to be chosen as capital jurors, via their support for the death penalty, are more likely to hold racially negative attitudes about black defendants, have a propensity to err on the side of conviction, harbor inherent negative stereotypes about African Americans, are less likely to maintain concerns about egalitarianism or civil liberties, and focus more on strict law-and-order crime control ideals. Although death qualification has been tied to a jury’s conviction proneness, research has been unable to explain how the sifting of the juror pool creates an atmosphere that might be ripe for discrimination. The above findings suggest stereotyping processes are at work, leading researchers to suspect that during deliberations those jurors in question were learning new stereotypic arguments from like-minded individuals that reinforced preexisting views, and that ideas not consistent with their personal attitudes were frequently dismissed. It follows, if a prospective juror holds racially negative stereotypes and is crime control oriented, his or her beliefs will be strengthened by input during deliberations from other ideologically akin jurors (Lynch and Haney 2009; Flexon 2006, 2012). It is likely that the death qualification process acts as a funneling mechanism whereby individuals with similar attitudes and beliefs are disproportionately deposited on capital juries, thereby cultivating an atmosphere reinforcing and intensifying preexisting stereotypic views about race and crime that inevitably become more conviction prone and punitive.

Stereotypes, Concentration, and the Capital Jury For decades, research indicated racial disparities were evident and influential in sentencing decisions made by capital juries (Bowers, Steiner, and Sandys 2001; US General Accounting Office 1990). To begin exploring racial bias in capital juries, it is important to understand the process of stereotype activation, its link to attitudes, and how stereotyped attitudes influence the decisionmaking process. The stereotypes most relevant to white jurors are those involving power relations between African Americans and whites, where African Americans are viewed negatively, even to the degree of being a criminal or deviant subpopulation,2 and whites are viewed as good citizens and likely prey for criminals. Al-

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though these images may be more prominent for some, the important point is that individuals largely have no alternative but to engage in stereotypical thinking. Current social psychology widely accepts that individuals construct positive or negative cognitive categories based on social dimensions, such as age, race, gender, and other personal and general characteristics (Andersen et al. 2007; Bargh 1999; Bodenhausen and Macrae 1998; Devine and Monteith 1999; Monteith, Spicer, and Toolman 1998; Rudman and Fairchild 2004). This process of thinking in social categories or social schemas is understood as a nonvolitional and subconscious effort to simplify and hasten cognitive processing in response to an ambiguous or unfamiliar social environment (Andersen et al. 2007; Bargh 1999; Devine and Monteith 1999; Bodenhausen and Macrae 1998; Monteith, Spicer, and Toolman 1998). Evidence suggests stereotype activation is an automatic and unconscious process (Andersen et al. 2007; Bargh 1999; Devine and Monteith 1999; Monteith, Spicer, and Toolman 1998), where stereotypes are understood as normal thought patterns aiding in comprehending and processing the social world. Stereotypes are activated through environmental cues or primes, often without an individual knowing cognitive associations are being made. For example, when asked what a television is, an individual would likely have an immediate mental accounting of that object. Although the general characteristics and form of the imagined television would be similar, the mental picture would likely vary among individuals. The same principles hold with regard to any mental concept. If one says, “white, young male,” or “black, young male,” preexisting mental images and familiar associations are triggered, including related attitudes and beliefs. Cognitively merging more than one mental concept is called a categorical conjunction, e.g., young–African American–male. If the mental image is placed in a given context, this would further inform and shape the image, because the context offers primes for the most appropriate and common pictures. In this simplified example, when placed before a capital jury, a race image is unavoidably tied to a criminal justice image, in much the same way the symbolic assailant (Skolnick 1994) was posed in context. The assailant is the young, African American male, already stereotyped and transformed from the symbolic to the real. It also is important to think of attitudes in conjunction, which stereotype processes. Attitudes, and inevitably stereotypes, are ascer-

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tained when a person finds an issue to be personally relevant or important, and therefore evoked when jurors assess issues during trial. Attitudes influence determinations by providing a cognitive framework for evaluations, referred to as attitude influence. As such, attitudes may trigger stereotypic associations and information, or stereotypic beliefs can influence efforts to suppress or ignore available information (Andersen et al. 2007; Fazio and Towles-Schwen 1999:103; Krosnick and Petty 1995). According to Jon A. Krosnick and Richard E. Petty (1995), “attitudes can bias the evaluation of scientific data: evidence supporting our attitudes is seen as more compelling than evidence that disagrees with our attitudes” (p. 8). Attitudes also have been found to influence our perceptions of others; for example, when we like someone, we presume they share a like attitude. These perceptions also have an influence shaping memory such that attitude-consistent information is remembered more than information that challenges our attitude (Krosnick and Petty 1995:8–9). Some researchers also have found support for the notion that perceivers can control and eliminate effects of primed stereotypes under controlled and directed conditions (Blair and Banaji 1996; Andersen et al. 2007; Bargh 1999; Bodenhausen and Macrae 1998; Devine and Monteith 1999; Monteith et al. 1998). The features identified as controlling stereotype activation and bias are awareness, motivation (Bodenhausen and Macrae 1998; Devine and Monteith 1999; Monteith, Spicer, and Toolman 1998), and external social control (Bodenhausen and Macrae 1998). Individuals—in this case jurors—more often than not are unaware of their stereotypic biases and attitudes in a given context and thus fail to exact needed control (Andersen et al. 2007; Bargh 1999; Bodenhausen and Macrae 1998; Devine and Monteith 1999). Research concerning stereotype activation has identified that individuals most able and/or likely to control or inhibit stereotypic influences are egalitarian in attitudinal values or beliefs (see Bodenhausen and Macrae 1998; Devine and Monteith 1999; Monteith, Spicer, and Toolman 1998; Amodio, Devine, and Harmon-Jones 2008). In other words, those individuals more likely to individuate rather than grossly categorize people do so because of their egalitarian beliefs and are heavily correlated with due process–oriented individuals (Fitzgerald and Ellsworth 1984). It may be that due process– motivated individuals are better apt to self-regulate, or inhibit the activation of primed stereotypes (Andersen et al. 2007). These persons may be less likely to be chosen for capital jury service.

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Attitude/Stereotype Concentration and Group Polarization Apart from stereotyping, research is also revealing as to when discrimination is most likely to occur in capital cases. Prior research has found that when juries are composed mainly of white males their tendency to vote for death in African American defendant–white victim cases is strengthened (Bowers, Steiner, and Sandys 2001:194). William J. Bowers calls this the white male dominance effect. In particular, the findings suggest a jury composed of five or more white males “drastically increases the likelihood of a death sentence in the (inter-racial) B/W cases” (Bowers, Steiner, and Sandys 2001:194). The effect also is related to an associated pattern called the black male presence effect, where one or more African American males are present on a jury, which serves to buffer a death sentence in favor of a life sentence when the defendant is black and victim is white (Bowers, Steiner, and Sandys 2001:193; Lieberman and Krauss 2009:165). These observations are suggestive of group polarization. The findings specifically show that when no African Americans are present on a jury a death sentence is imposed in 71.9% of these cases compared to 42.9% when there is at least one African American male (Bowers, Steiner, and Sandys 2001:194).3 All-white juries “are the most apt to impose a death sentence; they do so in 75 per cent of the B/W cases” (Bowers, Steiner, and Sandys 2001:194). These effects may lend insight into how juror beliefs impact the group decisionmaking process (Bowers, Steiner, and Sandys 2001; Young 1991). Assuming that these findings are not the result of overt and intentional discrimination, the results indicate preparatory biasing before sentencing decisions are reached and suggest when discrimination of this type is most likely to occur. Findings also indicate that African Americans and whites differ fundamentally in conceptualizations of capital punishment (Young 1991), and strongly validate the buffering effect found by Bowers and colleagues (2001) of African American males on capital juries.

Intensification of Juror Attitudes and Perceptions Thompson et al. (1984) reported that death-qualified (mock) jurors “expressed less regret” over erroneous convictions and “more regret concerning erroneous acquittals than excludable subjects” (p. 95). The

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findings suggest a difference in threshold of conviction—that is, deathqualified subjects require less evidence to meet the standard of proof, interpreting beyond a reasonable doubt, than non-death-qualified subjects (Thompson et al. 1984:107). Significantly greater proportions of African-Americans than whites and females than males are eliminated by the process of death qualification. On attitudinal measures, death-qualified respondents were consistently more prone to favor the point of view of the prosecution, to mistrust criminal defendants and their counsel, to take a punitive approach toward offenders, and to be more concerned with crime control than with due process. (Fitzgerald and Ellsworth 1984:31; emphasis added)

Such concerns for levels of interpretation lead to possible crime control– related schema of the juror as protector of society against the dangerous classes. The capital jury, because of its death qualification, may be composed of people sharing common (i.e., narrowed) attitudes about race, power relations, justice, crime, criminality, and a narrowed purpose of the criminal justice system, as well as an attitude in favor of the death penalty. The group/attitude polarization phenomenon suggests how discrimination may occur even when unintended and highlights the dangers of winnowing the juror pool through death qualification. Group/attitude polarization occurs when like-minded individuals share a common forum, absent a sufficiently strong anchor for opposing views or outcomes. Bowers and colleagues’ (2001) finding of white male dominance parallels a manifestation of group polarization, in particular risky shift, a situational phenomenon, where individual extremity is usually found to be limited, but the same decisions done in group tend to be more frequently extreme. Eleanor C. Main and Thomas G. Walker (1973) found judges examined individually and in groups also tend to employ risky shift.

Group Polarization The group polarization hypothesis provides that after deliberation by some group on an issue, the average responses for the group “increase in extremity of the average response of the subject population” (Myers and Lamm 1976:603). This phenomenon has found repeated empirical support and been tied to a number of topical forums, for example, ethical

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discussions and judgments, negotiations, and also jury deliberations and outcomes (Myers and Lamm 1976; Abelson 1995; Hogg 1996; Kaplan and Miller 1977; Mackie 1986). The effect occurs as a result of attitudinal biasing, culminating in polarization through group interaction (Abelson 1995; Myers and Lamm 1976). A group where all are like-minded is likely to present a forum for members to learn new arguments supporting their initial attitude, called self-enhancement bias (Abelson 1995). This occurrence indicates a group’s typical collective or shared attitude on some matter will consistently increase after deliberation (by one unit), with variation on the initial average for a group depending on which issue is addressed (Abelson 1995; Hogg 1996).4 It may indeed be true that death-qualified juries come to hold a constellation of stereotypic beliefs associated with conviction proneness and poor motivation for controlling stereotypes, while excluded counterparts may reflect the opposite. Death-qualified jurors may have the symbolic attitude of support for the death penalty, which has been positively associated with having higher levels of racial bias (Young 2004; Flexon 2006, 2012). It is reasonable to assume stacking a capital jury with higher levels of biasing attitudes would result in a greater number of discriminatory outcomes and it would not be surprising to see evidence of group polarization and the risky shift. It is further unsurprising that jurors do not realize their biases, and that findings of disparities operate at the aggregate level. Problematic here is the legal ruling per Lockhart excluding individuals most capable of controlling negative stereotypes, those persons tending toward egalitarianism (Bodenhausen and Macrae 1998; Blair and Banaji 1996; Devine and Monteith 1999; Monteith, Spicer; and Toolman 1998; see also Amodio, Devine, and Harmon-Jones 2008), cultivating a due process orientation (Ellsworth 1993; Fitzgerald and Ellsworth 1984; Thompson et al. 1984), and/or the most highly motivated to control negative stereotypical beliefs because of due process attitudes entwined with self-regulation (Andersen et al. 2007). If this is true, though arguable, it presents an important limitation to balancing jury (stereotype and attitudinal) compositions. In that attitude polarization effects seem to result in disparate death sentencing, Bowers et al.’s (2001) idea of the white male dominance effect and the black male buffering effect may offer some guide in qualifying a jury and moving away from deliberations under the current formula for empaneling a capital jury, which is alarming.

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Conclusion The Supreme Court is fully aware of research pertaining to disparities and the biasing influences of death qualification (see Lockhart v. McCree 1986). However, it appears the process by which stereotyping occurs is complex and, to a great extent, cognitively covert. Stereotypes and negative attitudes, specifically, are considered resistant to change (Bargh 1999; Devine and Monteith 1999). There also seems to be a specific problem: legal research demonstrating possible violations of due process and equal protection in black offender/white victim cases, where the defendant is more likely to be put to death. Findings from the Capital Jury Project merit particular attention because it appears that a complex, interactive, and identifiable (group) process promotes discriminatory application of death sentences (Bowers, Steiner, and Sandys 2001). Recent research has identified particular scenarios where discriminatory outcomes are more likely to occur. This pattern suggests that a process producing disparate treatment in capital sentencing is taking place, not entirely dissimilar to what was seen in McCleskey v. Kemp. This holds true irrespective of statutory guidelines and the court’s jurisprudentially based assumptions (see Bodenhausen and Macrae 1998; for further discussion see Baldus, Woodworth, and Grosso 2007). Empirical research on racial discrimination via jury deliberation in capital cases in large part has been a response to the court’s use of social science research in cases apart from capital homicide—and reluctance by the same court to use aggregated statistical data as evidence in this area. While the Supreme Court acknowledges this research and the existence of racial disparities in capital sentencing, the majority of the court is dismissive of the notion that disparate impact, based on racial stereotyping, rises to a meaningful level of significance and denies the source of discrimination comes from system actors (e.g., prosecutors, police). The High Court is more open to indications juries are responsible for systematic bias, in part, because there has been no research conducted by the American Bar Association (ABA) clarifying the role played by prosecutors and judges. It may well be true that one source of disparate outcomes in death cases is emanating from the jury. The commonly held belief is that an intentional and overt form of racial prejudice is motivating jurors’ decisions. Recent research certainly finds influences of prejudice on capital juries (Bowers, Steiner, and Sandys 2001; Lynch and Haney 2009). Juror questionnaires often are used to examine the nature of such biases,

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but posttrial interviews and questionnaires seeking answers to this problem have shortcomings. Many jurors do not recognize stereotypical processes and outcomes as emanating from themselves or other jurors (Ellsworth 1993). Juror recountings also have the same issues that are associated with the use of survey instruments for data collection concerning past events, such as forgetfulness and nondeliberate observation of events leading to decisions, and rationalizations that are likely due to misunderstanding the decisionmaking process. The missing link appears to be the lack of understanding of how stereotypes originate and operate rather than a general process of conscious and deliberate discrimination, calling for a focus on social-psychological and criminal justice research. However, given what is known about death qualification, criminal justice attitudes, and conviction proneness, explaining racial bias through further research of this type would fill an appreciable void.

Notes 1. Using the Witherspoon standard, 17.2% of subjects were identified as non–death qualified (Fitzgerald and Ellsworth 1984:42; see also Witherspoon v. Illinois 1968). The Witherspoon standard removes jurors who said they could never vote to impose the death penalty. 2. The above passage is in reference to institutional racism. Keeping that in mind, the focus here is aimed at exploring the social-psychological and cognitive aspects of racism and is not intended to be dismissive of the ideas and literature associated with institutional racism. 3. The racial composition of the jury and the crime are not independent. Communities with higher proportions of black residents are more likely to have higher black representation on juries when the defendant is black, and particularly when both defendant and victim are black (see discussion in Bowers, Steiner, and Sandys 2001:17). A discussion of the controls used and not used in the study may be found on page 18 of the manuscript, footnote 69. Other pertinent information (all following from p. 17): Two-thirds of white defendant/white victim cases had a black juror (66.9%) versus four out of five black defendant/white victim cases had a black juror (80.6%), whereas nine out of ten black defendant/black victim cases had a black juror (88.3%). According to Bowers et al. (2001), “only a handful of juries with more blacks than whites; 5 juries were majority black and these were in black defendant cases. Black and white jurors were evenly divided in fifteen cases.” Issues of representation; averages: median number of black jurors on white/white cases = 1; median number of black jurors on black/white cases = 2; median number of black jurors on black/black cases = 3.

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4. Research has begun to integrate group polarization effects with social identity and/or social categorization paradigms (e.g., Hogg 1996; Mackie 1986). Such an approach links this discussion rather nicely with effect under inquiry as it relates to the white, male dominance effect and the black, male presence effect. However, in keeping within the scope of this work, it will only be noted that associated findings indicate that self-categorization (or self-schema) impacts perceptions concerning in-group/out-group prototypicality and self-prototypicality within the group of concern (i.e., intergroup differentiation and intergroup homogenization; Hogg 1996). Here such concerns relate to jury composition. Fundamentally, such perception and conceptualization ultimately impact the interpersonal relationships of group members and may fundamentally influence group cohesiveness, socialization processes (i.e., norming pressures), and consensus (Hogg 1996; see also Hogg 1996 for a discussion of role theory and related impacts).

9 Nothing Succeeds Like Failure: Race, Decisionmaking, and Proportionality in Oklahoma Homicide Trials, 1973–2010 David P. Keys and John F. Galliher

RIMINOLOGIST R OBERT W EISS EXPLAINED IN A PERSONAL INTER view that Oklahoma’s unique geo-social situation as a “confluence of the gun culture of the American West and traditional race hatred of the rural South mixed with a grinding poverty characteristic of boombust economics” (Weiss 2005). The state’s well-documented history of racial strife and ethnic violence (Erskine 1972; Reed 1972; Gastil 1971; Hackney 1969) directed at Native and African Americans, as well as at later-arriving Hispanics, has in the post-Furman period reappeared in the application of capital punishment, which occurred in Oklahoma at the highest rate in the nation (National Institute of Justice 2006). It should not surprise any student of executions that Oklahoma’s culture has heavily imbued its lawmaking and justice systems with a draconian severity that is outstanding even among other states regularly using executions as maximum penalties. Since statehood in 1912, the Oklahoma legislature has enacted criminal sentencing legislation, such as the Oklahoma Habitual Criminal Sterilization Act (1935), which was later determined unconstitutional by the US Supreme Court in Skinner v. Oklahoma (1942). Oklahoma also was at center stage of the debate over age-eligibility for capital punishment (Eddings v. Oklahoma 1982; Thompson v. Oklahoma 1988), subsequently decided in neighboring Missouri’s futile attempts to execute juveniles in Roper v. Simmons (2006). Prior to Roper, Oklahoma was 1 of 17 states in the South and West that pursued the ex-

C

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ecutions of 16-year-old offenders convicted of first-degree homicide. However, the US Supreme Court has allowed, in Pitts v. State of Oklahoma (1932), the expansion of culpability for one person’s death to multiple persons whose actions were unrelated, subsequently decided in Enmund v. Florida (1982). As of 2006, Oklahoma sought to make “repeat child molesters” eligible for the death penalty through legislation originating in the state senate (see SB 1747). Within this agenda, Oklahoma lawmakers crafted a death penalty statute designed to circumvent federal court intercession, written with broad and widely applicable aggravating circumstances (sans statutory mitigators), allowing the execution of the mentally disabled, and adding backup methods of execution (e.g., electric chair, hanging, firing squad) if lethal injections, the state’s method of choice, were found unconstitutional. The possibility Oklahoma may resort to one of its backup methods is now very real. The April 29, 2014, execution of murderer Clayton Lockett was “botched” according to witnesses (New York Times 2014:A24). The gruesome 43-minute death scene followed an extraordinary conflict between Governor Mary Fallin, who refused to reveal the source of the execution drugs to be used on Lockett, and the Oklahoma Supreme Court’s unusual effort seeking a stay in Lockett’s sentence, presumably to avoid any constitutional violations. Governor Fallin ignored the order of Oklahoma’s High Court (see Lockett & Warner v. Evans 2014) for an indefinite stay of the execution until the state could publicly locate a reliable and approved source of drugs with which to liquidate Lockett (New York Times 2014). Fallin based her reasoning on Oklahoma’s Supreme Court lacking jurisdiction over criminal cases usually reserved for the Oklahoma Criminal Court of Appeals. The issue of certitude and reliability of the drug protocol was essentially ignored by the governor. Her Executive Order of April 22, 2014, did nothing but delay a horrific execution seven days, which most scholars familiar with the process and life on death row in general agree enhanced Lockett’s suffering instead of remedying the situation in any substantive way (see Governor’s Executive Order #046885). Somehow the actions of the state’s chief executives are not surprising when one considers Oklahoma’s legislative and judicial behaviors pertaining to the business of executions. Oklahoma’s applications of existing capital murder laws were described by Justice Sandra Day O’Connor as presenting “this Court with a result that is of dubious constitutionality, and they have done so without the earmarks of careful consideration that

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we have required for other kinds of decisions leading to the death penalty” (Thompson v. Oklahoma 1988; see O’Connor concurrence). In observance of Oklahoma’s criminal justice legacy and capital decisionmaking in particular, we will argue that Oklahoma prosecutors have brought charges of capital murder and sought capital punishment at trial in a way that facilitates arbitrary and capricious sentences of death in numbers that are exceptional even among those states frequently condemning and executing capital offenders. Procedural guidelines written into capital punishment legislation immediately following Furman v. Georgia (1972) and approved in Gregg v. Georgia (1976) have failed, in Oklahoma, to rectify or even address racial disparities continuing to taint the state’s criminal charging and trial processes associated with capital and noncapital homicides. Although Gregg, and its companion cases Proffitt v. Florida (1976) and Jurek v. Texas (1976), affixed a legal stamp of approval to state laws written beginning in 1973, following a moratorium via Furman, critical elements of the process of homicide sentencing (e.g., charging as well as decisions to request maximum penalties and proceed to trial) were left unregulated. Remedies approved in Gregg (e.g., trial bifurcation, full exploration of aggravation and mitigation, judicial reviews of death sentences) did not alleviate disparate treatment of minority populations in Oklahoma. Specifically, we hypothesize that juries hearing capital cases after the ratification of the 1973 capital punishment statute have not been the primary sources of arbitrariness, which were the focus of concern in Gregg. Instead, data analyses demonstrate the charging of suspects and prosecutors’ requests for penalties, known as “low-visibility” decisionmaking (Paternoster 1983), have systematically facilitated more harsh outcomes for assailants of white victims while acting to minimize charging, decrease the probability of prosecutors’ recommendations of death sentences, and lessen punishments for those convicted of assailing nonwhites. These types of racialized outcomes are of fundamental importance because they specifically contradict Potter Stewart’s rejection of petitioner Gregg’s claim of prosecutorial bias. [T]he petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included

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offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. . . . The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant. (Gregg v. Georgia 1976:200)

Notwithstanding the denials of Justice Stewart, we argue that Oklahoma’s administration of capital punishment, irrespective of the reforms approved in Gregg, is not fundamentally different in character from the pre-Furman conditions (1915–1972), but has merely added a thin veil of procedural correctness. The literature of institutionalized discrimination demonstrates that such a system, detailed in the historical record (Genovese 1969), reserves its harshest sanctions for assailants of white victims while unscrupulously waiving the heaviest penalties (e.g., death or life without parole) when victims are nonwhite in favor of indeterminate sentencing options, which in Oklahoma come under the rubric of “life” with eligibility for parole. For all practical purposes, Oklahoma has been a leader in the business of state executions since the post-Furman period began. Oklahoma was the first state to both rewrite its death penalty statute in 1972 and institutionalize death by lethal injection over the use of its famous electric chair; recent revisions to the state’s capital sentencing provisions further allow “electrocution if lethal injection is ever held to be unconstitutional and firing squad if both lethal injection and electrocution are held unconstitutional” (Death Penalty Information Center 2014a; see also Oklahoma State Senate Bill #1747 2006). Added to these facts, it should be noted that in the post-Furman period (1973–present), the state of Oklahoma’s capital punishment apparatus has not received a level of scrutiny equal to its ranking (second) in the total number of post-Furman executions or in recognition of its placement, among capital punishment states, as having the highest rate of executions proportionate to its population

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in the nation. This proves particularly salient given that several studies have assessed the predictive power of race of the offender in combination with that of the victim in a comparative analysis (Baldus, Pulaski, and Woodworth 1983, 1986; Radelet and Pierce 1991; Lenza, Keys, and Guess 2005), and the fact that the probative value of “defendant-victim racial combinations” is fundamentally important and methodologically sound in estimating the value of a victim’s life and the relative seriousness of the crime (Bohm 2007:315–322).

Data Description and Empirical Analyses Modeled on Baldus, Pulaski, and Woodworth (1983), data were collected from a multitude of sources, the primary being the Oklahoma Offender Database (OOD) for the years 1973–2010 and Oklahoma Indigent Defense System records, with details of many crimes in question found in local reporting collected from 44 community newspaper accounts of cases charged as “capital ” and “second-degree” murders. The years 1972–1977 are significant in that Oklahoma, like other states where strong support for executions existed, immediately rewrote its capital sentencing law and proceeded to sentence first-degree murderers to death in advance of the constitutional test case of Gregg (1976). Cases with complete information amounted to 44.3% (n = 3,395) of the total 7,662 reported homicides (Federal Bureau of Investigations 2014b; Oklahoma State Bureau of Investigation 2014) in the state during the sampled years. Offender information data systems, appellate documents, corrections information sheets, and newspaper accounts carried varied information (e.g., name, department of corrections number, age, ethnicity, years of education completed, criminal record, eligibility for parole if applicable), as well as circumstances of the crimes (newspapers usually carried a narrative description of the events, method, and weapon used; victim information such as age, ethnicity, possible relation to the offender). Oklahoma attorney general records and Oklahoma Criminal Court of Appeals records included statutory aggravating factors, legal representation of the defendant, and accompanying facts about the crimes, allowing cross-checking of relevant details gleaned from other sources. These data were organized to segregate three phases of the judicial process: prosecutors’ determination of eligibility for capital prosecution (Phase 1), prosecutors’ option to waive or pursue capital punishment

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(Phase 2), and the sentencing phase where juries choose between death and life without parole (Phase 3). Proceeding on the premise that “the selection of homicide defendants for death is the cumulative result of a series of decisions and evaluations” by a state’s attorneys and juries (Radelet and Pierce 1985:617), examinations of each phase of the selection process were done in order to understand those antecedent variables, which have discernible predictive power in capital charging, requests for death penalty at capital trial, and subsequent death sentencing. Cases were examined at each phase by binary logistic regression, hence analyses in all phases are logit models (Agresti 2002). Analyses sought significant categorical predictor variables that demonstrate increased or decreased likelihood a given defendant would be charged, tried, and condemned respectively, each phase represented by a separate criterion variable (Tate 1992). Three Models Analyzed Specific Criterion Variables Phase 1: Cases selected by the prosecutor for capital prosecution. Overall, of 3,395 cases, 65.1% were selected for prosecution as “capital” murder offenses and 34.9% or 1,186 cases were designated “second-degree” homicides (Federal Bureau of Investigation 2014a; Oklahoma State Bureau of Investigation 2014). The criterion variable was CHARGDUM (0 = second degree; 1 = “capital” or first degree), where an array of predictor variables were measured as they acted on the prosecutor’s decision to arraign a particular defendant on first- or second-degree homicide. Phase 2: Prosecutor informs the court of intention to request the death penalty at trial. Of those cases with complete information, defendants charged with capital murder in the period 1973–2010, 950 or 43.0% proceeded to a capital murder trial, while 57.0% or 1,259 cases received waivers of the death penalty in exchange for life sentences or explicit numbers of years of incarceration ranging from 5 to 999. The corresponding criterion variable was TRIALDUM (0 = waiver of death; 1 = no waiver), where predictor variables were measured as they acted on the prosecutor’s decision to seek death. Analyses sought out predictive characteristics in cases where defendants faced the imposition of the death penalty or were granted waivers of death. Phase 3: Juries select guilty defendants for death. Of the 950 capital defendants, 278 or 29.2% were sentenced to death and 672 or 70.8% received “life without parole” (LWOP). The corresponding criterion vari-

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able was SENTDUM (0 = life without parole; 1 = death), where predictor variables were measured as they acted on the jury’s decision to recommend a death. Through three-phase models, decisionmakers (e.g., prosecutors at Phases 1 and 2 and juries at Phase 3) were analyzed as to the strength or weakness of predictor variables. Thirty predictor variables fell into five general categories and were examined in all three phases. The affirmative conditions of each of the predictor variables operationalized conditions in which any or all combinations made given defendants more vulnerable to harsher charging, were more likely to be put on trial for their lives, and had increased probabilities of receiving death sentences. Offender and victim characteristics, offender-victim pairings, and substantial elements of the crime often are analyzed (NAACP 2002, 2006) to determine the proportionality of charging and sentencing, and the formulation of the predictor variables follows that form. Linear regressions calculating Mahalanobis distance, to identify outlying cases, were used as well as testing for proper tolerance levels within predictor variables to avoid multicollinearity. Model fit was improved after outlying cases were discarded and classification accuracy improved to 78.4%.

Results and Findings The analysis pairing of assailant and victim is common practice in measuring the overall fairness of a given system and was done in the most well-known examination of capital sentencing proportionality (see Baldus, Pulaski, and Woodworth 1983). In that study, cases were initially divided according to the combination of the race of the defendant and the race of the victim, and the present work follows that method. In Oklahoma, the death penalty was assessed in 18% of the cases involving black defendants and white victims, 12% of the cases involving white defendants and white victims, 6% of the cases involving black defendants and black victims, 1.5% of the cases involving white defendants and black victims, and 47% of cases involving black defendants and other victims of color (see Appendix B at the end of this chapter for the complete racial and ethnic characteristics of Oklahoma homicides). Similarly, analyses found prosecutors sought the death penalty in 58% of the cases involving black defendants and white victims, 34% of the cases involving white

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defendants and white victims, 26% of the cases involving white defendants and black victims, 18% of the cases involving black defendants and black victims, and 10% of cases involving black defendants and other victims of color. Phase 1 Findings: Charging Patterns Binary logistic regression was conducted, with the designated predictor variables analyzed for their effects on the criterion variable, CHARG (second-degree murder = 0; capital murder = 1). Table 9.1 indicates all predictor variables in the offender category demonstrated moderate to heavy influence except OLESS22 (specifying offenders under 22 years old), which realized a 30% reduction in probability of such a defendant being charged with murder in the first degree. There was, however, a conspicuous increase in the probability (OYBLKPriors, specifying offenders under 22 years, black, with prior convictions, +292%) that young, African American men—21 years and younger—with prior felony conviction(s) might be charged with murder in the first degree. Any offender with prior felony convictions (OPRIORS) realized a 194% increase; along with nonwhite victims (VNONWHITE, +79%), male victims (VSEXML, +96%) realized increases in the probability of a capital homicide charge. Male offenders were only moderately more likely to be similarly charged (OSEXMALE, +91%). Assailants of white victims (VWHITE, –34%) were slightly less likely to be charged with a deatheligible crime, while young victims (VLESS22, –23%) compiled reductions in probabilities that their assailants would receive charges of first-degree murder. When ethnicities were homogeneous, all realized reductions in likelihood of first-degree charges (BLK/BLK, –29%; OTH/OTH, –52%), with white offenders and white victims (WHT/WHT, –14%) being the smallest decrease. Prosecutors elected to charge heterogeneous pairings of offender/victim much differently, with an increase seen (BLK/WHT, +61%; OTH/WHT +266%; WHT/BLK, +200%; WHT/OTH, +288%) in the likelihood of such an offender being charged with a capital crime. Weapons that required close proximity, knives, blunt instruments, and fists/feet prompted prosecutors to charge out these crimes as capital offenses in greater proportion (KNIFE, +18%; PERSONAL, +21%; BLUNT, +67%). More impersonal weaponry such as firearms and “others,” which included poison, arson, and vehicular assault (GUN, –17%;

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Table 9.1 Probability of Prosecutor Charging Capital Homicide (Phase 1) Predictor Variable

B

S.E.

Sig.

Exp (B)

+/– % Probability

Offender Characteristics OLESS22 OSEXMALE ONONWHITE OPRIORS OYBLKPriors OYNWPriors

–.253 .648 –.004 1.077 1.366 .856

.127 .148 .104 .111 .442 .399

.006 .000 .971 .000 .002 .032

.702 1.911 1.830 2.935 3.918 2.354

–30 +91 –1 +194 +292 +135

Victim Characteristics VLESS22 VSEXFML VSEXML VWHITE VNONWHITE

–.266 –.018 .677 .242 –.290

.104 .107 .143 .556 .560

.011 .864 .000 .000 .311

.766 .982 1.9567 .663 1.789

–23 –2 +96 –34 +79

Offender/Victim Pairings BLK/BLK BLK/OTH BLK/WHT OTH/BLK OTH/OTH OTH/WHT WHT/BLK WHT/OTH WHT/WHT

–.339 1.199 1.466 –.871 –.736 2.615 1.097 1.636 –.151

.741 .097 .199 .184 .179 .457 .224 .717 .074

.648 .220 .002 .368 .000 .000 .000 .000 .042

.096 1.264 6.776 .501 .479 3.661 2.996 3.877 .860

–29 –74 +61 –50 –52 +266 +200 +288 –14

.123 –.390 –.841 –1.036

.106 .130 .066 .391

.246 .003 .069 .008

1.131 .677 .431 .355

+13 –32 –57 –64

Weapon Characteristics GUN KNIFE PERSONAL BLUNT OTHER

–.182 –.167 –.189 .510 –.268

.100 .139 .051 .254 .180

.036 .439 .423 .044 .000

.834 1.181 1.208 1.666 .765

–17 +18 +21 +67 –23

Constant

1.288

.054

.000

Offender/Victim Sex OM/VFM OM/OM OFM/VFM OFM/VM

Note: Predictor variables are defined in Appendix A at the end of this chapter.

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OTHER, –23%), was not held with such gravity. Expectant betas indicate same-race gun crimes committed against young males do not present attractive opportunities for prosecutors to arraign defendants on charges of capital homicide. It is also clear that assailing persons of another race is a fast track to death-eligible charges. Phase 2 Findings: Death Requests Table 9.2 shows previous convictions, and the variable of young African American men with prior convictions was the most powerful predictor of prosecutors’ requests for capital punishment and a decision to go to trial (OPRIORS, +106%). When assessed as a criterion variable (TRIALDUM 0 = waiver of death; 1 = no waiver and capital trial), African American males under 22 years of age with prior felony convictions (OYBLKPriors, +149%) and similarly other nonwhites under 22 with prior felony convictions (OYNWPriors, +34%) realized an increased possibility of capital trials for capital punishment. For victims, whiteness increased the chance of a capital trial (VWHITE, +124%), while young victims, male victims, and nonwhite victims all realized declines in the odds of a prosecutor’s request for capital trials (VLESS22, –5%; VSEXML, –29%; VNONWHITE, –56%). In fact, the white victims of any nonwhite assailants benefited from increased likelihood of capital trial requests by prosecutors across the board (BLK/WHT, +220%; OTH/WHT, +153%). Only white victims with white assailants proved ambiguous (WHT/WHT, 0%). Victims of any color fared badly, putting up only one sizable increase in probability (BLK/OTH, +73%), but had a powerful significance of .002. Within weapons as predictors of death requests, only knives and blunt instruments emerged as influential in producing a capital trial (KNIFE, +29%; BLUNT, +27%). Phase 3: Death Sentences Table 9.3 shows those defendants realizing a charge of capital homicide and a request by prosecutors for a possible death penalty; a criterion variable DEATHDUM (death = 1; life without parole = 0) was assessed with the aforementioned predictor variables regressed on it. Offender characteristics emerging as reliable predictor variables were males and previous convictions (OSEXMALE, +125%; OPRIORS, +15%). Youth and nonwhiteness both acted to reduce the probability of realizing a death sen-

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Table 9.2 Probability of Prosecutor Requesting Death Penalty (Phase 2) Predictor Variable

B

S.E.

Sig.

Exp (B)

+/– % Probability

Offender Characteristics OLESS22 OSEXMALE ONONWHITE OPRIORS OYBLKPriors OYNWPriors

–.334 –.242 1.917 .978 .052 .333

.113 .507 1.344 .084 .236 .282

.003 .663 .154 .000 .826 .237

.716 .785 6.798 2.093 1.053 1.396

–28 +72 +17 +106 +149 +34

Victim Characteristics VLESS22 VSEXFML VSEXML VWHITE VNONWHITE

–.055 .289 –.342 .388 –.821

.094 .053 .088 .096 .093

.559 .154 .000 .236 .069

.946 1.338 .710 2.236 .394

–5 +34 –29 +124 –56

Offender/Victim Pairings BLK/BLK BLK/OTH BLK/WHT OTH/BLK OTH/OTH OTH/WHT WHT/BLK WHT/OTH WHT/WHT

–.097 .548 1.163 .137 –.525 .929 –.487 –.227 .002

.612 .721 .593 .477 .198 .610 .584 .587 .084

.002 .002 .000 .775 .008 .001 .018 .004 .980

6.956 8.892 10.642 1.147 .591 7.760 3.959 5.442 1.002

–67 +73 +220 +15 –40 +153 –38 –20 0

Offender/Victim Sex OM/VFM OM/VM OFM/VFM OFM/VM

–.130 .252 –.027 –.655

.091 .086 .238 .043

.000 .157 .032 .001

1.478 .886 .601 .519

+48 –11 –40 –48

Weapon Characteristics GUN KNIFE PERSONAL BLUNT OTHER

–.130 .252 –.027 .235 .018

.086 .116 .131 .188 .168

.037 .029 .840 .211 .915

.836 .908 .751 1.265 1.018

–16 +29 –25 +27 +2

.776

.063

.004

Constant

Note: Predictor variables are defined in Appendix A at the end of this chapter.

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tence, while white victims, regardless of the ethnicity of the offender, posted the only positive influences on a death verdict (VWHITE, +506%). Similarly, cases of white victims of African American or white assailants saw increases in the probability of being condemned (BLK/WHT, +483%; WHT/WHT, +42%); only the OTHER category (containing Latino/as, Asians, and Native Americans) produced indefinite results (OTH/WHT, +20% with 0.541 sig.). Among weapons, only knives (KNIFE, +61% with 0.003 sig.) produced a positive impact on the probability of death sentences, with firearms, blunt instruments, personal, and others posting moderate negative influences.

Assessing Predictor Variables Across All Models Age and Sex of Offender The “youth of the defendant at time of the crime” (see ALI Model Penal Code §210.6 1962) was apparent as a mitigating circumstance moderating the culpability of a defendant across the process with an increasing influence on charging as well as requesting and obtaining death sentences (OLESS22, –30%, –28%, and –74%). Charging patterns and requests for death penalty reflected only moderate concern for the youth of the offender, where the statutory mitigation of youth in Phase 3 apparently redoubled the effect. Clearly, youth acted to mitigate a defendant’s culpability as the Gregg provisions imagined. The same trend was apparent in the predictor variable of previous convictions, where the aggravating effect was most pronounced in charging but diminished significantly as juries were asked to deliver a death verdict (OPRIORS, +194%, +106%, +15%) in the sentencing phases of the trial. Male offenders created an aggravating trend, increasing the positive impact of gender (OSEXMALE, +91%, +72%, and +125%). Oklahoma’s process seemed consistent with sentencing research in finding female offenders treated more leniently than male offenders (Steffensmeier, Ulmer, and Kramer 1998:765). Oklahoma homicides with male defendants are 30% more likely to be charged with capital murder. Males are 72% more likely to be taken to trial and 125% to receive the death penalty, as significance levels in Phase 1 produced an unambiguous result (0.000), while Phases 2 and 3 (sig. 0.663 and 0.216, respectively) indicate maleness did not conclusively increase probabili-

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Table 9.3 Probability of Death Sentence (Phase 3) Predictor Variable

S.E.

Sig.

Exp (B)

+/– % Probability

–1.348 .858 .145 .438 –.451 –.512

.338 .692 1.693 .156 .527 .522

.000 .216 .932 .000 .392 .659

.260 .425 1.156 1.154 .637 .682

–74 +125 +16 +15 –36 –32

.153 .595 –.425 1.804 –.921

.239 .199 .167 1.447 .165

.523 .430 .011 .212 .398

1.165 1.812 .654 6.507 5.651

+16 +81 –35 +506 –60

Offender/Victim Pairings BLK/BLK .855 BLK/OTH –.470 BLK/WHT 1.763 OTH/BLK –4.071 OTH/OTH –.513 OTH/WHT .179 WHT/BLK –1.468 WHT/OTH .021 WHT/WHT .352

1.023 .736 .899 5.103 .334 .293 .511 .341 .131

.403 .523 .050 .425 .125 .541 .004 .950 .007

2.351 .625 5.830 .017 .599 1.196 .230 1.021 1.422

135 –37 +483 –2 –40 +20 –77 +2 +42

.722 –.390 –.841 –1.036

.132 .130 .403 .391

.000 .003 .069 .008

2.058 .677 .431 .355

+106 –32 –57 –64

–.026 .488 –.368 –.220 –.370

.132 .162 .228 .323 .296

.848 .003 .106 .494 .212

.975 1.608 .692 .802 .691

–2 +61 –31 –20 –31

–8.990

2.419

.000

Offender Characteristics OLESS22 OSEXMALE ONONWHITE OPRIORS OYBLKPriors OYNWPriors Victim Characteristics VLESS22 VSEXFML VSEXML VWHITE VNONWHITE

Offender/Victim Sex OM/VFM OM/VM OFM/VFM OFM/VM Weapon Characteristics GUN KNIFE PERSONAL BLUNT OTHER Constant

B

Note: Predictor variables are defined in Appendix A at the end of this chapter.

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ties that such a defendant would receive a death verdict. This is troublesome in that previous analyses in Georgia, Florida, and Missouri indicated that killing a woman more than doubles the probability of receiving a death penalty (Gross and Mauro 1984:62). Cases involving female victims in Oklahoma remained a strong and reliable predictor beyond Phase 1, controlling for all other variables. The effect and weight lent to the VSEXFML coefficient (–.018) and ExpB of .982 in Phase 1 is negative—cases with male victims are 96% more likely to receive capital murder charges (sig. .000)—but decreased in both significance and reliability in requests for death (+34%, at 0.154 sig.) and death sentences (+81 at 0.430 sig.). Among other victim predictors, only white victims saw a positive increase across the three phase models in the probability of filing charges of capital murder, requests for the maximum sentences, and the eventual condemnations as victim whiteness acted upon those criterion variables, with the exception of white assailants of white victims (WHT/WHT, –14%, 0%, and +42%). Race of Offender and Victim In general, cases involving assailants of color and white victims had extraordinarily higher probabilities of being charged with capital murder (BLK/WHT and OTH/WHT average of +160%), proceeding to a death penalty trial (BLK/WHT and OTH/WHT average of +188%), and realizing a death sentence (BLK/WHT and OTH/WHT average of +255%). White assailants and victims of color, on the other hand, realized a similar probability of attracting a capital murder charge (WHT/BLK and WHT/OTH average of +244%), but could count on a reduced probability of prosecutors requesting death (WHT/BLK and WHT/OTH average of –29%), and likewise witnessed a reduction in the likelihood of a death sentence (WHT/BLK and WHT/OTH average of –37%). Racial homogeneities of assailants and victims also saw significant decreases in the probabilities of capital charges being brought (BLK/BLK, OTH/OTH, WHT/WHT average of –38%), requests for death (BLK/BLK, OTH/OTH, WHT/WHT average of –35%), and eventual sentences of death (BLK/BLK, OTH/OTH, WHT/WHT average of –25%). Results demonstrate that a systematic bias existed, punishing assailants of white victims consistently across the three phases and enforcing a racial etiquette of separation. Prosecutorial selections of capital murder cases are consistent with previous studies (Garfinkel

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1949; Myers and Hagan 1979; Bowers and Pierce 1980; Radelet and Pierce 1985), all finding evidence of racial bias. This pattern confirmed whiteness in Oklahoma is valued over nonwhiteness, correctly predicting that the severest punishment would be visited on cases in which nonwhite offenders killed whites. Taken as a whole, the logistical regression demonstrates that assailant/victim racial characteristics remain an important factor in determining whether the defendant is charged with a capital crime, taken forward to trial to face the death penalty, and eventually sentenced to death. Baldus, Pulaski, and Woodworth (1983) in Georgia, as well as Lenza, Keys, and Guest (2005) in Missouri, found assailant/victim combinations were significant predictors of death sentencing. Weapon Type Weapon choice also conformed to patterns found in Missouri (Lenza, Keys, and Guest 2005) across a similar time period (1976–2004). The weapon, type of wounds, and sheer quantity of blood are symbolic of what juries take to be undue cruelty and prolonged suffering associated with the crime, as well as a trustworthy predictor of the assailant’s future conduct. Examination of bias in capital trials found that violence done on victims recorded by crime scene photos is universally offered in Oklahoma courtrooms as inculpatory evidence. Prosecutors demonstrated a shrewd predilection for knife murders when charging, proceeding to trial, and obtaining death sentences. Phase 1 shows an increase in the probability of a capital homicide charge when a knife is the weapon (+18%, sig. 0.439), while Phase 2 shows an increasing influence on bringing the case to a capital trial jury (+29%, sig. 0.029), and Phase 3 shows a pronounced impact on a jury’s verdict, where murderers using a knife were more likely (+61%, sig. 0.003) to receive death sentences. Other weapon types—personal violence either via blunt instrument, hands, or a miscellaneous category including poison, arson, and explosives—realized a similar blueprint of increased likelihood in charging, but showed a declining weight as predictor of capital trials and/or death sentences. Blunt instruments were a slight exception in that attacks frequently elicited bloody crime scene photos but exhibited a random intent, where knives apparently convinced juries at Phase 3 that a given homicide was a deliberate act. Firearms featured declining and ambiguous prediction factors through the phases

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(CHARGDUM –17%, 0.068 sig.; TRIALDUM –16%, 0.037 sig.; SENTDUM –2%, 0.848 sig.). Coupled with the increasingly harsh sanctions applied to knife and to some degree blunt instrument crimes, both prosecutors and juries apparently viewed firearms as impersonal methods of murder and somehow understood gun murderers to be less dangerous. Prior Convictions A defendant with “any type of previous felony conviction” was 194% (sig. .000) more likely to be charged with capital murder, had a 106% (sig. .000) increased likelihood of being taken to a capital trial, and saw a slight 15% (sig. .000) relaxation in the probability of being condemned to death compared with similar defendants with no previous convictions. Previous felony convictions stand as unswerving verification in the eyes of prosecutors and some juries, as a proper guideline for a finding of death.

Conclusions and the (Non)Effect of Gregg v. Georgia The results of three-phase analysis give a clear picture of the discretionary field associated with charging, convicting, and sentencing in Oklahoma during the period extending from 1973 through 2010. Defendants convicted of taking the life of a white, female victim are subjected to extraordinary risk, beginning with a charge of capital murder, proceeding to a trial for one’s life, and in due course being death sentenced. Furthermore, cases involving victims of color do not attract the same public outrage or garner the righteous indignation of prosecutors’ systemic vigilance. It is significant that defendants assailing victims of ethnicities different than themselves suffer a much higher probability of being put to death than defendants who kill persons within a race-based sphere of homogeneous and rigid racial etiquette reminiscent of the pre-Furman South. Our results indicate that the Oklahoma legal system seeks to protect whites and harshly punish offending nonwhites violating that etiquette. These data also demonstrate that the lives of nonwhite victims seem to inspire increasingly limited interest on the part of prosecutors, as well as less severity meted out by juries. In addition, crimes having grizzly crime scene photographs of knife wounds and large blood pools are useful for prosecutors and had a sig-

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nificant impact on juries in their considerations of the cruelty and fate of defendants. Prosecutors sought out the vulnerabilities (violations of racial etiquette, use of weapons yielding appalling photos, and choice of victims) in those they charged with capital murder, selecting defendants for capital trials for their probabilities of conviction and maximum sentencing, rather than for the total facts of the crimes. In a state such as Oklahoma, experiencing an inflow of nonwhites in the midst of longstanding racial tensions, murder trials become symbolic events, points of contact, in the public mind at least, where racial conflicts are dramatized. These data demonstrate that Oklahoma prosecutors, predominantly in its two urban counties (Oklahoma County and Tulsa County), have predictable patterns, as analysis demonstrates that they seek out cases for inflammatory elements (race and record of the offender, offendervictim combination, weapons used) in an effort to influence juries in matters other than substantive law. Consequently, the results of the statistical manipulations above demonstrate prosecutorial discretion is also the location of and the mechanism responsible for racial disproportionality in Oklahoma capital sentencing. These analyses demonstrate the lengthy, largely unregulated, and low-visibility process of bringing an offender to a death sentence (e.g., charging, request for maximum sentences, and convincing a jury) is staged and orchestrated by prosecutors, is facilitated or hindered by the respective financial ability or inability of the offender’s defense, and is ultimately a summary of the process performed before legal laypeople, the juries. The confusion about the sources of arbitrary and capricious sentencing, fostered in the disconnected and sometimes contradictory majority opinions in Furman, gave way to a Georgia capital sentencing law, institutionalized as Gregg remedies, that assumed that the source of disparate treatments was entirely a function of jury functions at trial. Gregg and subsequent decisions mistakenly focused on juries in death sentencing, concentrating on jury eligibility and composition (Witherspoon v. Illinois), jury instruction in relation to aggravating and mitigating circumstances (Lockett v. Ohio), and jury’s hearing of victim impact testimony (Booth v. Maryland 1987 and Payne v. Tennessee 1991). None of these cases addressed what this research has identified as key preceding phases (i.e., charging and plea bargaining; sentencing requests by prosecutors) of the justice process. A whole can be greater than the sum of its parts, so a complete picture of Oklahoma’s legal process is richer than the sum of all things ap-

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parent in its constituents. The succeeding phases of charging, trial decisions, and sentencing requests, as well as eventual sentencing decisions by juries, illustrate the general character of justice in Oklahoma. The retributive climate of justice politics is one where prosecutors actively pursue interpretations of criminal law that by default or design fall most heavily on minorities and most overtly on those that commit violent crimes against the white majority. In this sense, Oklahoma has not made a vertical move to a higher, more tolerant justice process, but formulated a horizontal maneuver retaining the procedural vagaries of the charging and plea-bargaining processes. Regardless of conformance to Gregg, Oklahoma has developed a system of parallel “justice,” embedded within the apparatus of charging, plea bargaining, and punishment requests exposing nonwhite offenders who violate the accepted racial etiquette of white privilege. For those who defy racial boundaries, an increased incidence of capital trials and death sanctions occurs, while at the same time nonwhite offenders victimizing other nonwhites realize significant reductions in severity. Indeed Gregg was remiss in overlooking the prosecutorial process of selecting and pursuing the most vulnerable defendants. These results parallel a number of other studies (Radelet 1981; Radelet and Pierce 1991, 1985; McAdams 1998) that indicated serious disparities in the administration of justice in homicide cases. These data also demonstrate that prosecutors provided waivers of death penalties for nonwhite assailants whose victims were also nonwhite, amounting to what Amnesty International referred to in Oklahoma justice circles as the “TND” or “typical nigger defense” (Amnesty International 2001), a euphemism for an inveterate sentencing bargain in exchange for a guilty plea when one African American has victimized another. These activities followed a pre-Furman pattern of reserving the most serious charges, requests of death by prosecutors, and executions for the assailants of white victims, originally pointed out by Baldus, Pulaski, and Woodworth (1983) and reaffirmed by Paternoster (1984). Gregg fails in Oklahoma in part because the activities of prosecutors are less intent on evenhanded justice than consumed with the political theater of symbolically protecting white people from nonwhite criminals. In the process, nonwhite life is devalued relative to white victims, done in a manner reminiscent of a retributive legal culture that was supposedly retired with those cautions spelled out in the majority opinions of Furman and the ensuing attempts at ameliorative guidance in Gregg.

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Appendix A: List of Variables Offender Characteristics OLESS22 = Offenders less than 22 years of age at the time of the crime = 1; all others = 0 OSEXDUM = Offender male = 1; offender female = 0 ONONWHITE = Offender nonwhite = 1; offender white = 0 OPRIORS = Defendant had prior felony conviction/s = 1; no priors = 0 OYBLKPriors = Offender young (less than 22 years of age at the time of the crime), African American, and having prior felony convictions = 1; all others = 0 OYNWPriors = Offender young (less than 22 years of age at the time of the crime), nonwhite, non–African American (e.g., Asian, Latino/a, or Native American), and having prior felony convictions = 1; all others = 0 Victim Characteristics VLESS22 = Victim under 21 years of age at time of offense = 1; 22 and over = 0 VSEXFML = Victim sex female = 1; victim sex male = 0 VSEXML = Victim sex male = 1; victim sex female = 0 VWHITE = Victim white = 1; any other race/ethnicity = 0 VNONWHITE = Victim nonwhite = 1; white = 0 Offender/Victim Race Combinations Racial symbolism in Oklahoma necessitated examination of particular combinations of offender and victim as a predictor variable. Oklahoma has a heterogeneous mix of ethnicities (e.g., whites, African Americans, Latinos/as, Native Americans, and Asians). Three were conflated for convenience (whites, African Americans, and “other,” the latter being an amalgam of Latino/a, Native American, and Asians. BLK/BLK = Black Offender/Black Victim = 1; all others = 0 BLK/OTH = Black Offender/Other Victim = 1; all others = 0 BLK/WHT = Black Offender/White Victim = 1; all others = 0 OTH/BLK = Other Offender/Black Victim = 1; all others = 0 OTH/OTH = Other Offender/Other Victim = 1; all others = 0 OTH/WHT = Other Offender/White Victim = 1; all others = 0 WHT/BLK = White Offender/Black Victim = 1; all others = 0 WHT/OTH = White Offender/Other Victim = 1; all others = 0 WHT/WHT = White Offender/White Victim = 1; all others = 0 Offender/Victim Sex Combinations OM/VFM = Offender Sex Male and Victim Sex Female = 1; all others = 0 OM/VM = Offender Sex Male and Victim Sex Male = 1; all others = 0 OFM/VFM = Offender Sex Female and Victim Sex Female = 1; all others = 0 OFM/VM = Offender Sex Female and Victim Sex Male = 1; all others = 0 Types of Weapon Used GUN = 1; all others = 0 BLUNT INSTRUMENT = 1; all others = 0 KNIFE = 1; all others = 0 PERSONAL (trauma or manual suffocation) = 1; all others = 0 OTHER (arson, poison, vehicular trauma, electrocution) = 1; all others = 0

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Appendix B: Ethnic Characteristics of Homicides, 1973–2010 (Capital and Second Degree) Offender/ Victim Pairings Whites/Asians Whites/Whites Whites/Blacks Whites/Latinos/as Whites/ Native Americans Blacks/Asians Blacks/Blacks Blacks/Whites Blacks/Latinos/as Blacks/ Native Americans Native Americans/ Asians Native Americans/ Blacks Native Americans/ Latinos/as Native Americans/ Native Americans Native Americans/ Whites Latinos/as/Asians Latinos/as/Blacks Latinos/as/ Latinos/as Latinos/as/ Native Americans Latinos/as/Whites Asians/Asians Asians/Blacks Asians/Latinos/as Asians/ Native Americans Asians/Whites

Total Homicides Charged

% Total Homicides

Total Charged Capital

% Charged Capital

3 1,696 167 45

0.1 49.9 4.9 1.3

3 137 41 38

100 8 25 84

42 2 659 333 16

1.2 0.0 19.4 9.8 0.5

1,030 2 348 312 16

90 100 53 94 100

12

.4

12

100

0

0

0

0

14

0.6

14

100

3

0.1

2

67

158

1.7

54

34

103 0 15

3.1 0 0.4

95 0 12

91 – 80

71

2.1

37

91

2 42 6 2 0

0.1 1.2 0.2 0 0

2 38 5 0 0

100 90 83 – –

0 6

0 0.2

0 6

– 100

Part 3 Death in the Past, Present, and Future

10 Why Do We Need the Death Penalty? Robert M. Bohm

HY IS THE DEATH PENALTY NEEDED ? M ANY PEOPLE FIND THE question silly because they take the death penalty for granted. After all, the death penalty is an ancient practice having survived for millennia. The thesis of this chapter maintains the death penalty is not needed as a punishment and should be abolished. In support of this thesis, I will consider the death penalty in historical and geographical context, then critically examine the reasons capital punishment proponents insist on retention, and conclude by considering reasons death penalty opponents give for abolition.

W

The Death Penalty in Historical and Geographical Context Prior to 1863, no country in the world had abolished the death penalty, and by the beginning of the twentieth century, only 3 countries had eliminated capital punishment for all crimes. Venezuela was the first (1863), San Marino the second (1865), and Costa Rica the third (1877) (Amnesty International 2013b). A century later in 1977, 16 countries had abolished the death penalty (Amnesty International 2013b). However, by the beginning of 2013, 97 countries had eliminated executions for all crimes; another 8 restricted the death penalty to exceptional capital crimes (such

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as crimes under military law). Furthermore, an additional 35 countries have ended capital punishment in practice; that is, they retain the death penalty but have not carried out an execution for at least 10 years prior (Amnesty International 2013a). In total, more than 50 countries have put an end to the death penalty since 1990 (Amnesty International 2013b), with only 4 abolitionist countries reintroducing capital punishment since 1985. Two of those nations, Nepal and the Philippines, have since abolished it again; and one other, Papua New Guinea, has not executed anyone since reinstating the penalty.1 Currently, more than 70% of countries in the world—140 of them—have terminated capital punishment in law or practice. Although 58 nations retain the death penalty (Amnesty International 2013a), the number of countries actually executing anyone in a given year is much smaller. In 2012, for example, Amnesty International confirmed those retentionist countries sentenced at least 1,722 people to death, but only 21 nations put anyone to death, conducting approximately 682 executions. Of note, however, these figures do not include China, which does not report death sentences or executions but is believed to have condemned and executed thousands of people. Still, of the 682 known executions that took place in 2012, 87% were carried out in 5 countries: Iran (46%), Iraq (19%), Saudi Arabia (12%), United States (6%), and Yemen (4%) (Amnesty International 2013c). These data suggest a global trend toward abolition of capital punishment and a decrease in the total number of persons executed, outside of China. The United States is considered a retentionist country, although its federalist structure of state legal autonomy makes that statement technically incorrect. While the US government and military retain the death penalty, only 31 states legislatively authorize capital punishment; 19 states and the District of Columbia are abolitionist jurisdictions (Death Penalty Information Center 2013d). The latest spate of abolition finds New Jersey (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), and Nebraska (2015) striking down their death penalty laws.2 Coinciding with an overall decline in the number of death penalty jurisdictions in the United States, there has been a pronounced downward trend in death sentences being imposed. In 1996, 315 people were sentenced to death—the highest figure since 1977. By 2002, the number was halved to 166, and in 2012, the total had dropped to 78 (Death Penalty Information Center 2013b). Even among retentionist jurisdictions, capital punishment is not evenly distributed, with executions

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occurring in only a small percentage of counties. A recent study found that only 5% of US counties accounted for all death sentences imposed from 2007 to 2009 (Death Penalty Information Center 2013a). According to the Death Penalty Information Center (2013a), the concentration of death sentencing in those counties was not a function of the heinousness of the murders committed or the incorrigibility of the offenders, but instead resulted from prosecutors seeking the death penalty in certain jurisdictions, while in other areas of the same state they did not, even for the same or more aggravated death-eligible murders. Similar to the limited geographic distribution and declining overall number of death sentences, the sum of executions in the United States has decreased as well. As of October 31, 2014, there have been 1,390 executions in the United States since capital punishment resumed in 1977.3 Since 1999, however, when 98 executions were carried out, there has been an uneven decline in the annual number of executions, from 52 in 2009, to 46 in 2010, and 43 in both 2011 and 2012. In 2013, the figure dropped to just 39 executions (Death Penalty Information Center 2013g). Also, like death sentences, executions in the United States are not evenly distributed among death penalty jurisdictions. They are concentrated regionally and are carried out by only a handful of states. Since 1977, approximately 81% of the 1,390 total executions have occurred in the South, about 12% in the Midwest, nearly 6% in the West, and only 0.3% in the Northeast. In other words, executions in the United States are predominantly a southern phenomenon. Of the 34 death penalty states that have carried out at least 1 execution since 1977, 44% of them have executed fewer than 10 people. Three jurisdictions have not executed anyone in that time: Kansas, New Hampshire, and the US military. In fact, five states account for 65% of the 1,390 post-Gregg executions: Texas, Virginia, Oklahoma, Florida, and Missouri.4 In sum, except for a relatively small number of countries in the world and a handful of states and counties in the United States, mostly in the South, the death penalty is an archaic, dying practice. So, why is the death penalty needed?

Arbitrary and Discriminatory Application The US Supreme Court invalidated the death penalty in the landmark decision of Furman v. Georgia in 1972 because the death penalty had been imposed in both an arbitrary and discriminatory way. Arbitrary ap-

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plication refers to random use of capital punishment. In other words, the death penalty system is a lottery. Only 1%–2% of all death-eligible offenders have been executed from 1930 to the present.5 Thus, not only are the vast majority of capital offenders able to escape execution, but also there is no meaningful way to distinguish between the eligible offenders who are executed and those who are merely imprisoned. One might assume that because so few executions take place, those being killed must be the “worst of the worst,” but this is not necessarily the case. For example, in 2003, Gary Ridgway, the so-called Green River Killer, admitted to killing 48 women during a span of two decades. He was allowed to escape the death penalty by pleading guilty to more murders than any other serial killer in US history. If egregiousness was indeed a predictor of who gets the death penalty, Gary Ridgway surely would have been sentenced to death (see Donohue 2013 for a discussion on crime severity and execution). Yet he was instead sentenced to consecutive life sentences without opportunity of parole for each murder. The prosecutor reluctantly agreed to the plea deal because investigators and victims’ relatives wanted the murders resolved and cases closed. Had the victims not been prostitutes, drug addicts, and runaways, perhaps the prosecutor’s decision might have been different (Tizon 2003). Arbitrariness is also evident in the way the death penalty has been applied across jurisdictions and over time, as indicated by the uneven application of the death penalty. Capital punishment appears to be not an integral part of the criminal justice process in most states and counties, but an occasional product of chance—an unpredictable occurrence. More disconcerting, the death penalty also continues to be employed in a constitutionally impermissible and discriminatory way that is reserved almost exclusively for the poor, for men, and for killers 18 years of age and older, and is imposed disproportionately on black males and the killers of white victims. The wealthy are practically immune to the death penalty. As Bryan Stevenson (2004) has pointed out, capital punishment really means “them without the capital gets the punishment” (p. 95). A major reason wealth matters is the affluent are able to hire the best lawyers. In many capital cases, the outcome depends more on an attorney’s skill than on what actually occurred in the commission of the crime (Dow 2005). The death penalty is also rarely inflicted on women, even though women commit roughly 1 in 10 of all criminal homicides where the sex of the offender is known (Federal Bureau of Investigation 2011).

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Since 1973, women have received about 2% of all death sentences (Death Penalty Information Center 2013c), but only 13 women (0.9%) have been executed since 1976, compared to 1,330 men. It has been estimated that if women and men were treated equally under current death penalty laws, and if no factor other than offense was considered, women would receive between two and three times more death sentences than they presently do (Rapaport 1993). Additionally, about 2% of all people executed in the United States have been juveniles; that is, individuals who committed their capital crimes prior to their 18th birthdays (the youngest of whom during the twentieth century was 14-year-old George Stinney in 1944). In Roper v. Simmons (2005), the US Supreme Court ruled the Constitution’s 8th and 14th Amendments prohibit the execution of capital offenders under the age of 18. However, while the practice existed, juveniles, like women, were filtered from the process. Only 22 juveniles—all but one of whom were 17 years old at the time they committed their crimes—were executed since 1976 (Death Penalty Information Center 2013f). What makes the current practice of excluding death-eligible juveniles from the death penalty discriminatory is that the designation of “juvenile” is arbitrary. Is there a significant difference on any relevant social characteristic between a 17- and an 18-year-old, other than what has been created by law? Is it really meaningful to consider a 17-year-old a juvenile and an 18-year-old an adult? The Roper decision did nothing more than change the age at which death penalty states are allowed to discriminate. Black males are also victims of discrimination in the administration of capital punishment. From 1800 to the present, about 50% of all persons executed in the United States have been African Americans, even though they have comprised only about 11%–13% of the population (Baumgartner, DeBoef, and Boydstun 2008). From the early eighteenth century through the mid-twentieth century, African American execution rates were, on average, about nine times higher than white execution rates (Allen and Clubb 2008). According to an “evaluation synthesis” of 28 studies conducted since 1976 prepared by the US General Accounting Office (GAO), “more than half of the studies found that race of defendant heavily influenced the likelihood of being charged with a capital crime or receiving the death penalty . . . [and in] more than threefourths of the studies that identified a race-of-defendant effect . . . black defendants were more likely to receive the death penalty” (US General

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Accounting Office 1990:6). An update of the GAO study prepared for the American Bar Association (ABA) by David Baldus and colleague George Woodworth (1997) showed that in nearly half of the death penalty states race of defendant was a significant predictor of who would receive a death sentence.6 Finally, a second, less obvious form of racial discrimination is victimbased, that is, decisions to impose the death penalty are influenced by the race of the victim. Research shows the killers of whites, regardless of their race, are much more likely to be sentenced to death than those who murder nonwhites. This is especially the case for the killers of white females, particularly if the victim had been degraded and humiliated (Holcomb, Williams, and Demuth 2004; Williams, Demuth, and Holcomb 2007; Williams and Holcomb 2004). By contrast, the killers of black male victims are the least likely to be sentenced to death (Williams, Demuth, and Holcomb 2007). The aforementioned ABA study found evidence of race-of-victim disparities in 93% of death penalty states, and in all but one of those states (Delaware) white-victim cases were more likely to receive death sentences (Baldus and Woodworth 1997). Recent data reveal about 80% of the victims of those persons executed since 1976 have been white, and that only about 13% have been black. Yet, 56% of defendants executed have been white, and 35% have been black (NAACP 2010). Discrimination seems apparent because, historically, capital crimes have generally been intraracial (see Zahn 1989; see also Federal Bureau of Investigation 2001). For example, in 2009, white offenders murdered 84% of white victims, and black offenders murdered 91% of black victims (Federal Bureau of Investigation 2010). Yet, while data show only about 20% of murders are capital crimes, a much larger proportion of white victim homicides are processed as capital murders.

Reasons for Retaining the Death Penalty Notwithstanding continuing concerns about racial discrimination in the application of capital punishment, proponents of the death penalty proffer several reasons in support of its necessity. They include the deterrent value of executions, its unique incapacitative effect, the economic and symbolic costs of execution, the need for revenge, and the “closure” or “psychological relief” it provides victims’ family and friends. Consider each of these reasons in turn.

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General Deterrence Death penalty advocates argue that the death penalty is a general deterrent for murder and, potentially, other crimes. General deterrence refers to the belief that people in general can be prevented from engaging in crime by punishing specific individuals and making examples of them. In the context of the death penalty, the broad deterrence question is whether or not executions prevent people other than the person executed from committing capital crimes. The late philosopher and death penalty supporter Ernest van den Haag (1982) argued in favor of capital punishment because “our penal system rests on the proposition that more severe penalties are more deterrent than less severe penalties” (p. 326). If this is true, he asserts, the corollary is that “the most severe penalty—the death penalty—would have the greatest deterrent effect” (van den Haag 1982:327). He adds, “arguments to the contrary assume either capital crimes never are deterrable (sometimes because not all capital crimes have been deterred), or that, beyond some point, the deterrent effect of added severity is necessarily zero” (van den Haag 1982:327). Professor van den Haag’s first assumption—more severe penalties are more deterrent than less severe penalties—is generally correct, although added (or excessive) severity may reduce deterrence. In England during the eighteenth century, for example, there were about 150 capital crimes (some put the number at more than 200), many of which were so petty that juries chose not to convict clearly guilty defendants rather than having to condemn them to die. The practice is called jury nullification, and it likely reduces any general deterrent effect. Van den Haag’s corollary—the most severe penalty, the death penalty, would have the greatest deterrent effect— is based on a debatable proposition unsupported by scientific evidence: Is capital punishment the most severe criminal penalty? For many, it may be so. But for others, the prospect of spending the rest of one’s life in prison may be more terrifying than death. Gary Gilmore, for example, dropped his appeals and goaded the state of Utah into executing him in 1977; and John Blackwelder, who was executed in 2004, stated that he killed a fellow inmate so that he would get the death penalty because he could not stand the idea of spending the rest of his life in Florida’s death row (Word 2004).7 In contrast to van den Haag, the eighteenth-century philosopher Cesare Beccaria claimed that life imprisonment (he called it “perpetual servitude”) is probably a greater deterrent than death.8

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To anyone raising the argument that perpetual servitude is as painful as death and therefore equally cruel, I will reply that, adding up all the moments of unhappiness of servitude, it may well be even more cruel; but these are drawn out over an entire lifetime, while the pain of death exerts its whole force in a moment. And precisely this is the advantage of penal servitude, that it inspires terror in the spectator more than in the sufferer, for the former considers the entire sum of unhappy moments, while the latter is distracted from the thought of future misery by that of the present moment. (Beccaria 1975[1764]:48–49)

Drawing from Beccaria, abolitionists maintain the important question is not whether capital punishment is the harshest punishment, but rather what punishment should be the severest allowed by law given the Eighth Amendment to the US Constitution prohibits cruel and unusual punishments. Even if it were agreed that the death penalty is the most severe criminal sanction (and that at least some capital crimes might be deterred), the problem remains that there is no scientific evidence showing conclusively that the death penalty has any marginal deterrent effect. That is, there is no empirical proof that capital punishment deters more than an alternative noncapital punishment, such as long-term imprisonment. Dozens of studies have examined the deterrent effect of the death penalty. The vast majority of them show that capital punishment makes no discernible difference on homicide or murder rates. Consider the findings of one recent and very interesting study that compares execution and homicide rates in Singapore and Hong Kong (Zimring, Fagan, and Johnson 2009). Hong Kong has conducted no executions since 1967 and officially abolished capital punishment in 1993. Singapore, on the other hand, had a relatively stable and low execution rate until the early 1990s, when it experienced a huge increase that peaked from 1994 through 1996. At its peak, the execution risk for murder was 24 times higher in Singapore than in Texas. Over the next 10 years, Singapore’s execution rate dropped by 92% and, by 2007, was at its lowest level since 1981. Thus, Singapore’s execution rate showed great variation during the study period. The peak rate in the mid-1990s was 35 times greater than the lowest rate in 2007. By contrast, Hong Kong’s execution rate did not vary at all between 1967 and 2007, because no executions were performed during those years. Yet, as noted at the onset, the homicide trends for Singapore and Hong Kong were similar between 1972 and 2007. Neither the fluctuations in Singapore’s execution frequency nor the absence

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of capital punishment in Hong Kong affected either nation’s homicide rates. If executions are indeed a deterrent to homicide, one might expect to see evidence of that effect in Singapore. A major problem with deterrence theory as applied to the death penalty is the assumption would-be capital offenders might rationally calculate the consequences of their actions. Consider, for example, convicted murderers who end up on death row because they killed someone during the course of an armed robbery. Many never intended to kill but did so because of unexpected circumstances. Those who may have calculated the consequences of their actions before engaging in their crimes probably did not consider that the punishment might be death, just as they must have disregarded the possibility of being apprehended. Even if would-be killers knew that execution was the probable penalty for their actions, it likely would not deter them anyway. No more than 2% of criminal homicides each year result in an execution. In truth, the chance of being executed for criminal homicide is very remote. Essentially, capital punishment has virtually no effect on crime, capital or otherwise, even though it continues to be a favored political “silver bullet”; that is, a simplistic yet saleable solution to the crime problem used by aspiring politicians and some law enforcement officials. Unfortunately, as long as politicians and law enforcement officials can gain political currency by perpetuating the belief in the death penalty’s deterrent effect, attention will be diverted from more constructive and (it is hoped) more effective approaches to the prevention and control of violent behavior. Incapacitation Incapacitation refers to preventing convicted murderers (or other capital offenders) from killing (or committing other crimes) again by executing them. Death penalty opponents concede capital punishment permanently removes criminal threats to society, but they question whether such a drastic measure is necessary. They argue if an alternative penalty, such as long-term incarceration, accomplishes the same purpose, it would be preferable because of the social (e.g., execution of innocent people) and economic costs associated with the death penalty. Furthermore, to properly achieve incapacitation and ensure that no convicted capital offender killed again, everyone found guilty of a capital offense would have to be executed. There are several problems with such a strategy. First, innocent people wrongfully convicted of capital crimes would be executed, mak-

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ing it impossible to rectify the injustices done to the condemned, their families and friends, and to a society that considers such acts immoral. At least 400 Americans were wrongly convicted of crimes punishable by death in the twentieth century, and 142 have been released from death row due to evidence of their innocence since 1973 (through August 19, 2013) (Radelet, Bedau, and Putnam 1992; Death Penalty Information Center 2013c). All of them would have died if mandatory capital punishment were implemented. Even so, perhaps as many as two dozen capital offenders have been executed in error since executions resumed in 1977 (Bohm 2012). To prevent such miscarriages of justice and still retain the death penalty, it would be necessary to identify convicted capital offenders who are innocent and spare them from death. This is no easy task. Generally, only after considerable effort is proof of innocence ever discovered, and rarely is such effort expended on death row inmates. For those family members and friends who would like to try, the financial and psychological resources necessary for such an endeavor are often not available. The risk of executing an innocent person is inherent in the process. Another reason not to execute all convicted capital defendants is that some of them will rehabilitate themselves while in prison and contribute to society. For example, San Quentin death row inmate and Crips street gang cofounder Stanley “Tookie” Williams was convicted in 1981 for killing four people. However, he subsequently disavowed his criminal past and while imprisoned authored a series of children’s books and advocated against gang violence, which led to his being nominated for the 2001 Nobel Peace Prize. His last book, Life in Prison, describes daily life behind bars in San Quentin; its focus is racially and economically disadvantaged juveniles and intends to keep them out of street gangs. His Internet Project for Street Peace links at-risk California and South African youth through e-mail and chat rooms, allowing them to share their experiences and hopefully transform their lives (Harris 2000). In 2005, Williams received a “Presidential Call to Service Award” from President George W. Bush for his more than 4,000 hours of community service (Furillo 2005). Nevertheless, Williams was executed in December of 2005. Alternatively, he could have remained incapacitated via long-term imprisonment, an option that eliminates entirely the possibility of executing an innocent person, while affording offenders like Williams the chance to rehabilitate themselves and make positive contributions to society.

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Costs Death penalty proponents claim executions are necessary because lengthy incarceration is too expensive; that it costs much more to imprison offenders for long periods than it does to execute them. If death penalty supporters have in mind only the costs of the eventual execution, they are right—an execution is cheaper than long-term imprisonment. However, when accounting for the entire process of capital punishment, including trials, appeals, executions, and the expenses associated with maintaining a death house, then they are wrong. This is partly because the Supreme Court requires that defendants charged with capital crimes be provided with what has been called super due process, a series of expensive appellate safeguards and special legal requirements afforded defendants convicted of capital crimes (Radin 1980). Detailed accounting of the death penalty’s costs is an awesome undertaking, but consider the following: Capital punishment costs California taxpayers more than $184 million a year (Williams 2011), compared to approximately $11.5 million per year for a comparable system sentencing the same inmates to longterm imprisonment (Dieter 2009). Because California has executed only 13 people since it reinstated the death penalty in 1977, the cost for each execution is more than $300 million (Williams 2011). Similarly, New Jersey’s death penalty cost taxpayers at least $253 million since 1983 (approximately $11 million a year), even though no inmate was executed during that period prior to abolition in 2007.9 Between 1982 and 2005, New Jersey conducted 197 capital trials and imposed 60 death sentences, of which 50 were reversed. At the end of 2004, it was estimated that it took up to $3.2 million to pursue a death prosecution in New Jersey (Forsberg 2005). In the state of Washington, capital punishment is also prohibitively expensive: Between 1993 and 2003, a death penalty trial had an average cost of $432,000, more than twice the $153,000 for a non–death penalty trial (Larranaga and Mustard 2004). As recently as 2003, capital cases in Kansas cost approximately $1.2 million; long-term prison sentences could have saved Kansas taxpayers between $400,000 and $500,000 per trial (State of Kansas Legislative Division of Post Audit 2003). Additionally, the New Hampshire Commission to Study the Death Penalty determined the state spent more than $5.3 million on two capital cases during the 2009 fiscal year even though the state has not held an execution since 1939. By contrast, it typically costs $70,000–$100,000 to defend a suspect charged with first-degree murder (Death Penalty Information Center 2009).

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Overall, the average cost per execution in the United States for the entire capital process was estimated in the year 2000 to range from about $2.5 million to $5 million (Liebman, Fagan, and West 2000). Complicated or extraordinary cases can cost much more. For example, the state of Florida reportedly spent $10 million to execute serial murderer Ted Bundy in 1989 (Muwakkil 1989). That same year, Orange County, California, expended more than $10 million just to convict serial killer Randy Kraft, who remains on that state’s death row awaiting execution (see Bohm 2012). At the federal level, the US government spent more than $100 million to execute mass murderer Timothy McVeigh in 2001 (Michel and Herbeck 2001). On the whole, the cost of a life sentence is roughly $1 million, making the death penalty, on average, about 2.5 to 5 times more expensive than long-term incarceration. Another consideration is that “death penalty costs are accrued upfront, especially at trial and for the early appeals, while life-in-prison costs are spread out over many decades. . . . A million dollars spent today is a lot more costly to the state than a million dollars that can be paid gradually over 40 years” (New York State Assembly 2005:3). In addition, when a capital trial does not result in a death sentence and execution, the added costs associated with the process are incurred without any “return” on the state’s investment of resources. In other words, the enormous costs of capital punishment are not a product of the number of executions, but rather the number of people death penalty jurisdictions attempt to execute, often in vain (Haines 1996:170). Worthy of note is the death penalty’s availability, in that pressures to pursue executions are difficult to resist and would not exist in its absence. How is a prosecutor to explain to [a] grieving family why he or she decided to seek death for another accused murderer but not for the killer of their loved one? How is he or she to apply it sparingly, knowing that his or her opponent in some future election will accuse him or her of being soft on criminals? Elected officials striving to appear moderate sometimes call for limited death penalty laws intended only for the “worst of the worst” killers. But limited death penalties beg to be expanded, especially in election years. Capital punishment, then, often seems to have a built-in momentum that demands that it be used and drives up its cost. (Haines 1996:170)

The cost of capital punishment, then, is as much symbolic as economic, leading prosecutors and elected officials to espouse the value and

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merit of executions while willfully ignoring a pragmatic truth affecting their constituencies: Capital punishment processes across the states are always more expensive than punishment processes without the death penalty, if only because super due process is required in the former but not in the latter. Revenge The need or desire for revenge is an emotional, although quite understandable, reason why death penalty proponents argue in favor of capital punishment. The problem, however, with revenge as a justification for executions is that a decision as important as the intentional taking of a life by the state should be based on reason rather than emotion. As the father of a murder victim expressed it: “For many months after the [Oklahoma City] bombing I could have killed Timothy McVeigh myself. Temporary insanity is real, and I have lived it. You can’t think of enough adjectives to describe the rage, revenge, and hate I felt” (Levey 2006:38). Even if one assumes revenge is a legitimate and reasoned rationale, no other crime is punished in kind; the literal interpretation of the eye-for-an-eye maxim is not imposed for any other offense. The state does not burn down the homes of arsonists, cheat people who defraud, or rape people who rape (Amsterdam 1982). Why then is it necessary to kill people who kill? This point rests on what may be the quintessential difference between supporters and opponents of capital punishment: Proponents sometimes misunderstand death penalty opposition. Abolitionists do not want capital offenders to escape punishment or justice; indeed, most of them want such offenders to be punished to the severest degree allowed by law. The only difference between the two groups is what should constitute the severest punishment allowed by law. Some death penalty supporters maintain relatives and friends of the victim might be inclined to seek personal revenge if states are not allowed to pursue ultimate punishment. However, as former US Supreme Court justice William Brennan observed in the Furman decision: “There is no evidence whatever that utilization of imprisonment rather than death encourages private blood feuds and other disorders” (Furman v. Georgia 1972:303). During the hiatus in capital punishment in the United States between 1968 and 1977, there was no apparent increase in personal revenge, and there is no evidence the 140 countries having abolished capital punishment, in

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law or practice, have suffered from vengeance killings. This strongly implies revenge can be satisfied by an alternative punishment, such as long-term incarceration. Death penalty proponents also cite retributive grounds in suggesting legal vengeance is a way of enhancing social solidarity, thus sanctifying the importance of innocent life. Assuming the argument has merit, there are other ways than capital punishment of achieving such ends (e.g., noncapital punishments or, better yet, more positive measures). Moreover, it is difficult to understand how the taking of a life, even of a person guilty of capital murder, in any way sanctifies life. We are indeed left to consider a fundamental moral paradox of capital punishment: “How can a thoughtful and sensible person justify killing people who kill people to teach that killing is wrong?” (Bohm 2012:311; see also Schwarzschild 1982). Then again, since executions so infrequently fall upon the assailants of victims of color, perhaps more than anything else the essential message being taught is that killing white people is unacceptable. Closure Franklin Zimring (2003) maintains that in the past couple of decades “closure” has replaced “revenge” as a primary purpose of capital punishment. It was not until 1989, he discovered, that the term closure was first used by the printed mass media to describe a major objective of the death penalty. This symbolic and linguistic shift in emphasis from revenge to closure, according to Zimring (2003), has been a “public relations godsend” for death penalty proponents, transforming capital trials and executions, at least in the minds of the public, into politically palatable processes serving the personal interests of homicide survivors (pp. 51–52). He observes that the penalty stage of death penalty trials, for example, has become a “status competition” between the offender and those who were injured by the crime (Zimring 2003:55).10 The issues of race, ethnicity, and socioeconomic status in this regard are particularly salient, as they rarely have anything to do with the objective facts of the crime or impact of the crime on the victim’s family or friends, but instead speak to a vague social estimate pertaining to the value of white and affluent life versus the comparable worth of an indigent defendant or person of color. Still, the question of whether or not executions provide “covictims” closure is a controversial issue. Describing his decision to grant

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clemency to all Illinois death row inmates, Illinois governor George Ryan recounted his discussions with covictims: “To a family they talked about closure. . . . They pleaded with me to allow the state to kill an inmate in its name to provide the families with closure” (Sarat 2006:220). On the other hand, many covictims, including some who support capital punishment, admit executions never provide closure. As the daughter of a murder victim explained: “I get sick when death-penalty advocates self-righteously prescribe execution to treat the wounds we live with after homicide. . . . Those who hold out an event—execution—as the solution to pain have no understanding of healing. Healing is a process, not an event” (Levey 2006:44). Similarly, the mother of another murder victim complained, “I don’t know why the powers that be have come up with the word ‘closure.’ There is no closure, and there never, never will be” (Ellis, Ho, and Seymour 2006:436). Nevertheless, many death penalty proponents argue lesser punishments may not provide the psychological relief deserved by victims’ suffering survivors. Although we may question whether the public should subsidize the psychological relief or the thirst for vengence a victim’s loved ones might feel, for some families anything less than an execution may be taken as a slight, “an indication that society does not value their relative or understand the magnitude of their loss” (Vandiver 2003:638; see also King 2006). For them, it is unfair that their loved one’s killer will continue to experience many of the small joys of life, such as seeing the sun rise and set, celebrating birthdays, experiencing holidays, and visiting with loved ones (see Turow 2003). Of course, very few covictims receive any of the presumed benefits of capital punishment because 98%–99% of criminal homicide offenders are never executed. In the vast majority of applicable cases, a death sentence is not even sought. Thus, many homicide victims’ family members and friends will feel they and the homicide victim are unworthy and have been devalued by the justice system because the killer of their loved one or friend did not receive the maximum penalty allowed by law (Acker and Mastrocinque 2006; Zimring 2003). When executions are performed, covictims are sometimes left disappointed and even offended by the “justice” they receive via capital punishment. Furthermore, it is important to consider that even if an execution did make a loss easier to endure for the victim’s relatives and friends, it would have to be weighed against the effects of the execution on a perpetrator’s family and supporters, which can be as meaningful or, in some cases, more profound.

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Conclusion There are really no good reasons for supporting the death penalty over an alternative punishment such as long-term imprisonment, and there are plenty of valid reasons to oppose the executions. If the death penalty continues to be applied in a racially and socioeconomically discriminatory manner, if it does not have unique deterrent value, if it does not have a unique incapacitative effect, if it costs more than alternative punishments like extended incarceration, if it is not needed to satisfy the desire for revenge, and if it does not provide closure or psychological relief to most victims’ family and friends, then why is capital punishment needed? In addition, if the death penalty is used by politicians for purely political and disingenuous reasons; if innocent people are wrongly convicted and executed; if it costs more to administer than an alternative punishment such as long-term imprisonment; if an execution summons the worst sort of racist sentiments and further divides the citizenry along racial/ethnic lines; if it can be insulting to victims’ families and friends when it is not imposed, as is the case in 98%–99% of all capital crimes; and if it causes unbearable hardships to the families and friends of death row and executed inmates, then why is the death penalty needed? My conclusion: It isn’t.

Notes 1. The other country, Gambia, resumed executions in 2012 (Amnesty International 2013c). 2. In 2015, Nebraska became the first traditionally “red,” or politically conservative, state to abolish the death penalty since 1973 (see Hensch 2015). 3. “Since capital punishment resumed in 1977” refers to the hiatus in executions between 1968 and 1977, during which the constitutionality of the death penalty was being litigated. 4. Three of those executing states—Texas, Virginia, and Oklahoma—are responsible for more than half (53%) of the 1,390 executions since 1977, with Texas alone accounting for 37.2% of the total (Death Penalty Information Center 2013e). 5. Even during the peak of US executions in the 1930s, only 20% of all death-eligible offenders were executed. 6. In all but two of those states (Florida and Tennessee), black defendants were more likely to receive a death sentence. 7. Blackwelder was serving a sentence of life imprisonment with no opportunity of parole for a series of sex convictions (Word 2004).

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8. Cesare Beccaria’s ideas continue to influence the form and function of the criminal justice process in the United States today. 9. According to Dieter (2009), the $253 million spent by New Jersey between 1983 and 2007 was “over and above the costs that would have been incurred had the state utilized a sentence of life without parole instead of death.” 10. This shift in rhetoric has been especially important in retaining the support of people who distrust government because, for them, it is much easier to support executions as a public service, such as garbage collection or street cleaning, than it is to contend with arguments that executions represent the excessive use of power by and for the government (Zimring 2003:62).

11 The Death Penalty’s Dirty Little Secret Franklin E. Zimring

HE RECENT HISTORY OF CAPITAL PUNISHMENT IN THE UNITED STATES includes one “natural experiment” in the variation of state experience that warns us of dangerous dysfunctions in the legal controls of state killing. On January 1, 1995, the two largest states in the federal union had almost exactly the same number of prisoners under what the scorekeepers in such matters call “active sentence of death.” As Figure 11.1 shows, Texas had a total of 391 condemned prisoners and California had 386. This figure also shows that the risk of execution over the six years beginning in 1995 was very different for the 391 Texas condemned. From January 1, 1995, to December 31, 2000, Texas executed a total of 154 persons while California executed a total of 6 persons, a ratio of about 26 to 1. Assuming that all of the 1995–2000 executions were drawn from the 1995 death row residents, the odds of a Texas condemned prisoner being executed over the six years after the beginning of 1995 were greater than 1 in 3. The chance of a California condemned prisoner being executed in that same period was less than 1 in 64. Why was a California condemned prisoner more than 20 times safer than a Texan under a death sentence? The two states’ definitions of capital crime were close to the same, and the legal standards of greatest importance in both states after the death verdict has been rendered are the federal constitutional provisions shaped by the US Supreme Court in the decades after Gregg v. Georgia was de-

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cided in 1976. Moreover, federal judicial intervention was similarly limited in both states with the enactment of the Antiterrorism and Effective Death Penalty Act in April 1996. So the legal standards are very similar. Because California executed so few of its condemned prisoners in 1995–2000, the size of its death row grew much faster than in Texas, but the gross disproportion in executions continued. From the beginning of 2001 until December 31, 2012, Texas conducted 253 executions and California conducted 5, a ratio of 50 to 1 even without adjusting for California’s larger living population of condemned prisoners (Death Penalty Information Center 2014b). Perhaps some of this huge difference is attributable to the different types of state and federal judges who apply death penalty law in Texas and California. Yet for all its blue state reputation, California voters had removed the three liberal justices from the seven-person state Supreme Court in 1986, and a Republican governor had replaced them with very prosecution-oriented legal thinkers.

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By the early 1990s, the California Supreme Court was affirming 90% of the death penalty appeals it heard, a higher rate than even in Texas (Kamin 2000). So the state courts in California are not an obvious explanation for a 26-to-1 difference in execution risk. But California is also under the jurisdiction of federal judges in the Ninth judicial circuit, a liberal circuit by reputation if not a predictable one. Yet even the Ninth Circuit is far from a clear cause of California’s very low execution risk. Arizona is also in the Ninth Circuit, had a death row population less than a fifth of California’s, and still has managed to conduct twice as many executions as California (27 to 13 over the entire post–Gregg v. Georgia period) (Death Penalty Information Center 2014b). So if Arizona can generate execution risks more than 10 times as great as those in California despite being in the Ninth Circuit, something rather different from federal judicial circuit oversight must be creating most of the California difference.

Lawyers Matter Longtime observers of California would regard the low rate of execution in the state as far from a mystery. What remained in the state even after its Supreme Court was deconstructed in 1986 was a professional and effective set of public defender offices (particularly in coastal counties); a powerful state bar association; dedicated and organized death penalty appeals organizations, including the California Appellate Project, created by the state bar; the civil liberties unions in both the north and the south; and later, the state government’s own Habeas Corpus Resource Center, which has become an important source of coordination and strategy. The otherwise tangled history of capital punishment in California over the past generation is clear evidence that good lawyers make a big difference in death penalty litigation. California is not alone in providing this testimony to the power of effective lawyering—look behind the stalemates throughout the northern states in death penalty outcomes, in places like New Jersey and New York, and you will find the signature impact of effective legal representation. The quality of defense lawyers matters enormously in the trial and appeal of capital cases, and behind this obvious and undeniable observation lies both an irony and a terrible truth about the US system of death penalty justice.

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The irony is that the very state governments that desire swift execution of capital defendants must also provide the financial resources to hire and support virtually all of the defense lawyers who will fight to save their clients from state killing. And the terrible truth is that the huge variation in execution risks observed in the United States may reflect what I shall call the power of perverse incentive. States that provide inadequate levels of legal services to indigent defendants benefit from their penury when capital cases are lost and executions happen more quickly. The massive variations in execution risk that are a prominent feature of the current system may also be evidence that the political economy of capital punishment encourages states to cheat on their constitutional duties and that the legal controls we have established to control this constitutional corruption do not work.

The Anatomy of a Perverse Incentive So one very plausible reason why the execution rate in Texas is 26 to 50 times the volume of the execution rate of California is that California provides its indigent capital punishment defendants with better lawyers and more extensive resources to conduct a criminal defense and to prosecute the range of direct and collateral appellate procedures that delay execution. Good lawyers fight the state’s death penalty advocacy to a protracted draw. Presumably California is giving its capital defendant the quality representation that reduces somewhat the gap between the vast bulk of poor criminal defendants and the tiny cohort of nonpoor defendants who can select their lawyers and pay for them. But California’s due process comes at a substantial cost to it, and not just in public money. Good lawyers doing what they are supposed to do directly frustrate the state’s penal ambitions, the execution of offenders under death sentence. Texas has clearly won the competition between the two states if the major goal of both states is to reduce delay and increase the volume of executions. And the less effective the legal resources that Texas provides to defendants, the larger its margin of victory in an execution sweepstakes. This creates a governmental version of what economists call a perverse incentive, which is a reward to a government for doing the wrong thing. The less effective the legal defense provided by state funds, the more often (and more quickly) the state will achieve the execution of the

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defendant. So, while the constitutional law requires that the same government that wishes to execute must also provide defendants with lawyers who will try to slow down and to derail the rush to execution, the state’s real interests lie in the opposite direction. This conflict of interest is inherent in the government’s dual role in criminal prosecution and exists wherever government is supporting advocacy on both sides of the criminal process. What makes the death penalty cases a particularly dramatic setting for this is the very high stakes in both economic resources and penalty in each case and the unbargainable nature of the conflict if the state desires execution. Most felony cases can avoid a trial with an exchange of leniency if the defendant waives his rights. These arm’s-length “plea bargains” reduce the conflicts between prosecution and defense and mean that the defense attorney for the indigent doesn’t have to have the skills of Clarence Darrow to help his client. But when the state is demanding death and is unwilling to remove the ultimate punishment from the equation, there is little room for representation by negotiation, and now the lawyer’s role is as trial attorney in the highest-stakes litigation imaginable in developed nations. A death penalty trial is the adversary process on steroids—the state-paid lawyer or lawyers for the indigent defendant will face a hundred tests a day of their instincts, analysis, and strategic judgment—on the admission of evidence, the presentation and cross-examination of witnesses, and theories both in the guilt trial and in the unique life or death penalty trial should the client be convicted of the capital offense. And the trial attorney is not just an advocate during a trial; he or she is a major determinant of whether questions for appeal and potential reversal of adverse rulings and verdicts are preserved. Did the attorney object in timely fashion on the record? Was there any failure of form or notice by the defense counsel, which under state law restricts or forfeits the right of appellate review? Bad lawyers at the trial stage of the capital criminal process can undermine a defendant’s ability to raise important issues on appeal, and thereby doom the defendant’s chances of reversing a death verdict. If the lawyer is bad enough at trial, the only real hope the defendant will have later in the process to reverse a death sentence is to establish that he or she was denied effective assistance of counsel under current constitutional standards. So the only real counter to a state’s providing inadequate lawyers or resources for capital defendants to create fast tracks to execution is federal courts enforcing the requirement that effective assistance of counsel

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be provided to defendants by reversing death sentences when lawyers fall below standard. How well does this work in practice? The applicable legal standards for enforcing minimum standards of defense skills and resources were developed by the Supreme Court in Strickland v. Washington (1984) and its progeny. And the burden of proof is on the defendant! If a criminal defendant succeeds in demonstrating that his trial attorney fell below the Strickland standard (and he’d better have found a wonderful postconviction attorney to achieve this difficult task), the conviction and the death penalty will be reversed and the penal aim of the state—execution—will be frustrated for years if not decades. But the defendant has to prove both serious mistakes at trial and the probability that these influenced a death sentence. Even if the state does lose an ineffective-assistance-of-counsel case in federal court, the prosecutors can always blame the delay on the courts rather than absorb any personal responsibility. So losing a few cases on appeal isn’t that much of a political embarrassment. And meager resources and mediocre attorneys can still produce executions when defendants give up, when appellate counsel for the condemned is not very good either, or when lower federal courts are unsympathetic to defendants in these factually dense contests. So there is reason to doubt that the current protections generated by Strickland as applied in the 4th, 5th, and 11th federal circuits are doing an effective job of neutralizing the perverse incentive. Indeed, the huge variation in state-to-state execution risk shows conclusively that local legal/judicial environment, independent of statutory law, jury behavior, or anything else that influences death sentencing rates, has a powerful influence on actual executions. But what aspects of local legal culture can have a 26-to-1 or 50-to-1 impact on execution risk? State court judges and appellate judges? Local federal court judges and their attitudes? There is certainly room for these variables to influence execution risk to some extent. But the quality of trial and appellate resources for criminal defense is the elephant in the living room when comparing places like New Jersey and New York and California with Texas and Oklahoma and Louisiana.

Blaming the Victim? One ironic twist makes the sting of inadequate state-provided lawyering particularly sharp—the mistakes of the state-provided lawyer are often chargeable to the defendant.

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Coleman v. Thompson (1991), decided by the US Supreme Court, is one famous example. The defendant’s counsel had 30 days under state law to provide notice of claims to be made in a state habeas corpus proceeding. Coleman’s lawyers were three days late in filing the papers. The Virginia Supreme Court therefore refused to ever hear Coleman’s claims and the lower federal court ruled this procedural default was an independent state ground to keep Coleman’s claims out of federal court. There are many other kinds of mistakes by lawyers that clients end up paying for—failure to object to prejudicial arguments or testimony, failure to raise factual theories and recruit witnesses at a life-or-death penalty trial. In all these cases, common sense would suggest that when the state chooses and defines the financial rules for a capital defense, and when the indigent defendant has little choice in the matter, the moral basis for holding the defendant vicariously liable for his appointed lawyer’s mistakes is rather tenuous. The clustering of executions after 1985 in a very few states suggests that a majority of all US executions depend on hostile state environments and less-than-stellar resources and attorneys for capital defense and appeal. The tiny trickle of California executions with the nation’s largest death row and the execution-free record of New Jersey from 1980 to 2008 are demonstrations of what good lawyers can do to the complex and convoluted federal system for administering the death penalty. There is strong circumstantial evidence that the only way the states can achieve high rates of execution is to cheat both their condemned prisoners and the Constitution. If the only way the system can function is the corrupt accommodation of a perverse incentive, here is one more good reason to conclude that this nation is too advanced to tolerate a legal system that executes criminals.

12 Race of Victim and American Capital Punishment Franklin E. Zimring

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HE EMPIRICAL STUDIES OF RACE AND CAPITAL PUNISHMENT THAT

David Baldus produced and inspired were a landmark of law and society scholarship and a major chapter in the ongoing debate about capital punishment in the United States. But a careful analysis of the facts about race and the death penalty is also a wonderful setting where readers of this volume will confront every major set of social and legal contradictions that have doomed capital punishment as an acceptable element of American justice. The first contradiction in the career of the death penalty in the United States is the need to only allow executions when the selection of candidates and the nature of their crimes demand it. There are many other nations that use legal proceedings to justify state killings, but almost all of the nations that retain executions have no pretense of principled selection of defendants or procedural justice. What sets US states apart from the majority of other executing nations is our need to believe that state killing and legal principle can be harmoniously combined. Then, when the facts of the process make clear the lack of principle, only denial can maintain the illusion of a substantive rigorous selection of candidates for state execution. Far from being an isolated lapse in substantive principle, McCleskey v. Kemp has plenty of company. A defendant’s lawyer is late in filing a brief and the Supreme Court allows the state to fail to consider any of the arguments in the filing (Coleman v. Thompson 1991). The de-

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fendant is executed. The constitutional debate in another Supreme Court case provokes the chief justice of the US Supreme Court to state, “. . . we may assume, for the sake of argument . . . a timely persuasive demonstration of ‘actual innocence’ . . . would render the execution of a defendant unconstitutional” (Herrera v. Collins 1993:416). Due process and efficient executions are always on a collision course. There are two further aspects of state execution American style that are powerful parts of the McCleskey problem—federalism and race— which are each important individually and which interact importantly. When executions take place in most countries, it is the national government that administers this ultimate punishment. But not in the United States. Of the more than 1,300 executions on American soil over the period since 1978, only 3 were the work of the federal government (and none in the last decade). This is not an unimportant aspect of the problem of capital punishment. If only the federal government could conduct executions, how many would have occurred in the 37 years after Gregg v. Georgia in 1976? A respectable argument can be made that the right answer is zero, but what is less speculative is the theory that only a small fraction of the more than 1,300 would have happened. And one reason that race and federalism interact in the story of capital punishment in the United States is that more than four out of five executions in the United States take place in the same southern states that also dominated lynchings and governmentally enforced racial segregation (Zimring 2003:96). After Gregg v. Georgia in 1976, the northern states never had high rates of execution, and in the first decades of the twenty-first century, execution is a candidate for the endangered species list in the Northeast and Midwest. But how might the tarnished history of racial discrimination in the United States have influenced the patterns that Baldus and his associates found? What have come to be known as “race-of-victim” effects are not the direct equivalent of lynchings in the Jim Crow South. The equivalent to Jim Crow was what Marvin Wolfgang and Marc Riedel (1973) found in the death penalty for rape, which was heavily concentrated on black defendants convicted of raping white women. The rate of death sentences in the seven states studied for black defendants convicted of raping white women was 36%, compared to 2% for all other types of rape convictions (Wolfgang and Riedel 1973:119, 129). That sort of black defendant was singled out because his conduct had violated not only the criminal law but also a racial taboo.

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The race-of-victim pattern shows that black (and often white) defendants face death more often when they are convicted of killing white victims. And black (as well as white) defendants did not risk a death sentence if their victims were black. At the heart of this more complicated pattern is the low incidence of execution. The death penalty’s central metric is rarity—only 2% of willful homicides ever become death sentences. Execution in the post-Gregg age is only for what its supporters call “the worst of the worst.” These are the deaths of victims that prosecutors and judges and jurors and the man in the street truly care about. As soon as the criteria for death sentences must be highly selective, they will represent the dominant sentiments of the majority social group. This exposes the empty reassurance of death penalty standards in Gregg v. Georgia. The central insight of the holding in Furman v. Georgia was that a fundamentally standardless discretion to prosecutors, judges, and juries would produce arbitrary decisions between life and death. The hope of Gregg v. Georgia’s majority was that lists of “aggravating” and “mitigating” features in premeditated murders could create meaningful principles that could inform a jurisprudence of life versus death as punishment. And while a race-of-victim effect does suggest a predicable metric of selection, it is the opposite of acceptable principle. The propensity of legal actors to value white lives more than African American lives is a powerful demonstration that the process that selects for execution is fatally arbitrary. And the breadth of the race-of-victim finding in terms of number of jurisdictions and its sustained existence over time suggests that this is more a demonstration of the impossibility of real principle for the lifeor-death punishment decision than it is the manifest racism of one or two states. What David Baldus found in Georgia is to be found in virtually every death penalty jurisdiction and has been an important part of the process for a long time. The less direct linkage between race and the disadvantage imposed on the black defendant did provide some moral cover to the failure to forbid the result. A judge might think that the black defendant was being treated in the same way a white defendant would have been treated (if they both killed white victims). But then what would a constitutional court do with the rape data (where only the black defendant with a white victim had any real prospect of a death sentence)? The last resort for not granting the defendant’s relief in such cases is to assert that the defendant hadn’t sufficiently proved that the pattern identified had led to a death

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sentence in this case. My guess is that the court that heard McCleskey would not have succeeded in mustering five judges to deny relief when both the race of the accused and the race of the victim were necessary elements to predicting a death sentence. I suspect that Justice Powell, the necessary fifth judge in the McCleskey majority, could not have blinded himself to the obvious way in which the rapist’s race was the cause in fact of his death sentence. When the definitive legal history of the death penalty in the United States is written, long after the executioners have been retired, the discussion in McCleskey will probably mark the last time that the penalty’s supporters could hope that the statutory criteria that Gregg v. Georgia had embraced gave any real principle to the legal processes that choose between life and death. Support for capital punishment in the post-McCleskey world is a cynical recognition that the demand for death should create a supply of condemned prisoners whether or not the selection processes were fair and whether or not the criteria for choosing the condemned made any moral sense. To appropriate a phrase of Al Gore’s in a different context, the raceof-victim effects that David Baldus found have become an inconvenient truth in the moral career of the death penalty in America.

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The Contributors

Robert M. Bohm is professor of criminal justice at the University of Central Florida. He has published extensively in the areas of criminal justice and criminology. Besides America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Sanction, 3rd ed. (with James R. Acker and Charles S. Lanier, 2014), his books on capital punishment include Capital Punishment’s Collateral Damage (2013), The Past as Prologue: The Supreme Court’s PreModern Death Penalty Jurisprudence and Its Influence on the Supreme Court’s Modern Death Penalty Decisions (2012), and Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States, 4th ed. (2012). He was president of the Academy of Criminal Justice Sciences from 1992 to 1993. In 1989, the Southern Criminal Justice Association selected him as the Outstanding Educator of the Year, and in 1999 he became a fellow of the Academy of Criminal Justice Sciences. The Academy of Criminal Justice Sciences also presented him with the Founder’s Award in 2001, and the Bruce Smith, Sr., Award in 2008. Richard C. Dieter has served as the executive director of the Death

Penalty Information Center (DPIC) in Washington, DC, since 1992, and is adjunct professor at the Catholic University School of Law. He has authored more than twenty reports on the death penalty that have been

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widely cited by journalists, the US Congress, and state legislators. His latest publication is The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All (2013). Jamie L. Flexon is associate professor of criminal justice at Florida In-

ternational University in Miami, Florida. Her research interests involve evaluating criminal justice policy (e.g., capital punishment), juvenile psychopathy, violence and delinquency, as well as minorities and crime. Her recent work has appeared in such journals as Crime and Delinquency, Journal of Quantitative Criminology, Criminal Justice and Behavior, and Journal of Interpersonal Violence, among others. John F. Galliher is professor of sociology at the University of Missouri–

Columbia and the author of fifteen books and seventy-five journal articles. In 2000, he was elected president of the Society for the Study of Social Problems and in 2009 received that organization’s Lee Founder’s Award. For many years, John Galliher has been a member of the National Association for the Abolition of Capital Punishment. George E. Higgins is professor in the Department of Criminal Justice

at the University of Louisville. He is editor of the Journal of Criminal Justice Education. His most recent publications appear or are forthcoming in Journal of Criminal Justice, Criminal Justice and Behavior, Justice Quarterly, Deviant Behavior, and Youth and Society. David P. Keys is associate professor of criminal justice at New Mexico

State University. He is past chair of sociology and criminal justice at the State University of New York at Plattsburgh and the author and coauthor of five books and numerous articles on narcotics, drug addiction, the death penalty, and the history of symbolic interaction. He is coauthor (with Corina Infante) of Symbolism and Death: Political Theatre and Capital Punishment in America (2013) and Unbearable Burden: Wrongful Convictions and Crisis in American Justice (forthcoming). He is an ardent supporter of the Prison University Project at San Quentin State Penitentiary. Ross Kleinstuber is assistant professor of justice administration and criminology at the University of Pittsburgh at Johnstown. His research interests include the sociology of law, criminological theory, capital sentencing, and genocide and other human rights violations. His most recent

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publication is Hegemonic Individualism and Subversive Stories in Capital Mitigation (2014), which focuses on the role of the US culture of individualism in capital mitigation and sentencing. He is currently studying the influence of victim impact evidence on judicial capital sentencing decisions. He is a member of the Delaware Chapter of the Campaign to End the Death Penalty and Delaware Citizens Opposed to the Death Penalty. Jacqueline Ghislaine Lee is a doctoral student in criminology and criminal justice at the University of Maryland, College Park. Before pursuing her doctorate, she earned a Juris Doctor from the University of Oklahoma. Her research interests include courts and sentencing, the role of attorneys in the courtroom, and the intersection of legal and social science research on the criminal justice system. R. J. Maratea’s research interests include capital punishment and the implications of mass communication as they pertain to the construction of cultural and political realities, institutionalized inequality, deviant and criminal identities, and the institutionalization of social control. He is the author of The Politics of the Internet: Political Claims-Making and Its Effect on Modern Political Activism (2014), and his work has appeared in journals such as Social Problems, Symbolic Interaction, Journal of the History of the Behavioral Sciences, Deviant Behavior, Qualitative Sociology Review, and Sociology Compass. Ray Paternoster is professor in the Criminology Department at the Uni-

versity of Maryland, College Park. His research interests include offender decisionmaking, quantitative methods, and issues pertaining to capital punishment. Tony G. Poveda is professor emeritus at the State University of New

York at Plattsburgh, where he taught in the Sociology and Criminal Justice Department for forty years. For more than twenty years, his scholarly research centered on the crimes of large organizations, including corporations and government agencies, but most notably the FBI. That research resulted in three authored or coauthored books: Lawlessness and Reform: The FBI in Transition (1990), Rethinking White-Collar Crime (1994), and The FBI: A Comprehensive Reference Guide (with Athan Theoharis, Susan Rosenfeld, and Richard G. Powers, 1999). During the past fifteen

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years, his research and writing have focused on issues of wrongful conviction and the death penalty, with much of that work published in journals such as Punishment and Society, Social Justice, and Justice Quarterly. He maintains an active interest in the Innocence Project at Cardozo School of Law and the Center on Wrongful Convictions at Northwestern University. Michael Rocque is assistant professor of sociology at Bates College in

Lewiston, Maine. He served as the Maine Department of Corrections’ director of research prior to his appointment at Bates and currently represents the Department of Corrections as the senior research adviser. He is an editorial board member of the Journal of Criminal Justice. His research has appeared in a variety of journals, including the Journal of Criminal Justice, the Journal of Research in Crime and Delinquency, Justice Quarterly, the Journal of Experimental Criminology, and Deviant Behavior. He is coauthor of The Criminal Brain, 2nd edition (with Nicole Rafter and Chad Posick, forthcoming). Gennaro F. Vito is a university scholar and professor in the Department

of Justice Administration at the University of Louisville. He also serves as a faculty member in the Administrative Officer’s Course at the Southern Police Institute. He is a past president and fellow of the Academy of Criminal Justice Sciences and a recipient of their Bruce Smith Award. He has published journal articles on such topics as capital sentencing, police consolidation, police traffic stops, policing strategies for drug problems in public housing, attitudes toward capital punishment, and the effectiveness of criminal justice programs, such as drug elimination programs, drug courts, and drug testing of probationers and parolees. He is the coauthor of nine textbooks in criminal justice and criminology, including Criminology: Theory, Research, and Practice (2015) and Organizational Behavior and Management in Law Enforcement (2011). Franklin E. Zimring is the William Simon Professor of Law at the University of California at Berkeley and author or coauthor of three books on capital punishment, Capital Punishment and the American Agenda (with Gordon Hawkins, 1986), The Contradictions of American Capital Punishment (2003), and The Next Frontier: National Development, Political Change, and the Death Penalty in Asia (2009).

Index

abolition of the death penalty: growing movement of, 19–20; historical context, 145–147; judicial second thoughts, 32–35; moral opposition to the death penalty, 54–55; personal revenge by families of victims, 157–158; Supreme Court’s McCleskey decision, 87 “active sentence of death,” 163 African Americans: characteristics of capital juries, 112–113; ethnic characteristics of Oklahoma’s homicides, 142(table); exclusion from capital juries, 117; mitigating white male dominance in juries, 116; New York’s stopand-frisk programs, 44–45; racial composition of capital juries, 120(n3). See also race; race-ofoffender effect; race-of-victim effect age: analysis of racial effects in Georgia’s capital sentencing, 97– 104; effect on Oklahoma’s judicial process, 134–136

aggravating factors, 25–26, 37, 44– 45, 106 Alexander, Marissa, 15 American Bar Association (ABA) study, 34, 73–74, 119, 150 American Revolution, 10 Amnesty International, 140 Amsterdam, Anthony G., 46 Antiterrorism and Effective Death Penalty Act (1996), 164 appeals rates and process, 165, 167– 168 arbitrary application of the death penalty: Baldus Procedural Reform Study evidence, 91–92; Brennan’s argument in McCleskey, 27–28; death penalty debate and, 147–150; judicial second thoughts on the death penalty, 35; McCleskey ruling ensuring, 40–46; Oklahoma capital case process, 125. See also Baldus, David/Baldus study; Furman v. Georgia; McCleskey v. Kemp Arizona: execution rate, 165; race-ofvictim effect in sentencing, 73

205

206

INDEX

Arnall, Ellis, 12 Asian Americans: ethnic characteristics of Oklahoma’s homicides, 142(table) Atlanta Compromise, 11 attitude influence, 115 Baldus, David/Baldus study: analysis of Georgia’s capital case processing, 89–90; analysis of racial effects in Georgia’s capital cases, 100–101; data on racial effects of capital sentencing in Georgia, 94–95; execution of black males, 150; geographical effects of death sentencing, 96– 97; impact on capital sentencing research, 107(n1); McCleskey ruling, 2–3, 9–10, 26–27, 38; oral arguments in McCleskey, 24–26; overall effect on McCleskey decision, 64–67; Philadelphia studies, 71–72; remedies for racial discrimination in capital cases, 86; scope of study, 58–59; statistical evidence of discrimination in the death penalty, 38–39; structural injustice in the justice system, 62– 63; structure and findings of, 22–23; systemic racism and the sociological imagination, 21–22; Washington v. Davis decision, 29– 30. See also Charging and Sentencing Study; Procedural Reform Study Batson v. Kentucky, 109 Baze v. Rees, 33–34 Beccaria, Cesare, 151–152, 161(n8) Bedau, Hugo Adam, 53, 55–57 bias: characteristics of capital juries, 111–113; of court officials and the larger public, 63–67; death penalty research on, 90–93; exclusion of women and blacks from capital juries, 117; institutional discrimination and aggravating factors, 44–45;

philosophical nature of, 51–52; remedies for racial discrimination in capital cases, 83–86; research on capital sentencing in Georgia, 91–92; self-enhancement bias, 118; sources of racial bias, 78–83; subconscious nature of, 32. See also discrimination; race; race-ofoffender effect; race-of-victim effect BkW cases, 75. See also race-ofoffender effect; race-of-victim effect black codes, 13 black male presence effect in juries, 116, 118, 121(n4) Blackmun, Harry, 27, 33, 35 Blackwelder, John, 151, 160(n7) Boger, John C., 9–10, 24–25 Booth v. Maryland, 139 Bork, Robert, 17 Brennan, William, 2, 27–28, 31, 56, 157 buffering effect of black capital jurors, 116, 118 Bundy, Ted, 156 Burney, David, 8 Bush, George W.154, 154 California: abolition of the death penalty, 19; costs of capital cases, 155–156; death sentence statistics, 163–165; execution rate, 169; perverse incentive for executions, 166; race and ethnicity influencing capital sentencing, 73; rehabilitation of prisoners, 154; role of public defenders in execution rates, 165–166 California Appellate Project, 165 California v. Brown, 42, 47 Callins v. Collins, 33, 35, 87 capital juries: death qualification, 120(n1); group polarization, 117– 118, 121(n4); intensification of juror attitudes, 116–117; juror

INDEX

characteristics, 111–113; racial composition of juries and crimes, 120(n3); stereotype activation, 113–116; vetting, 109–111. See also juries Capital Jury Project (CJP), 39–40, 77, 119 capital sentencing. See sentencing case law, 31–32 case selection: Oklahoma’s judicial process in capital cases, 128–129 categorical conjunction, 114 census data, racial threat studies of, 81–82 Charging and Sentencing Study (CSS), 22–23, 58–59, 59(table), 92, 105 charging process: jury studies of unequal application, 39–40; racial effects in Georgia’s capital cases, 94, 99–100; racial reforms, 84. See also sentencing China: execution statistics, 146 civil rights reforms, 12 Civil War, 10 class system, 80–81 closure as motive for the death penalty, 158–159 cognitive categories, 114–115 Coleman v. Thompson, 169 Colorado: sex-of-victim effect in capital sentencing, 74 color-blind view of equal protection, 15, 41–43 confessions, 99 Congress: Racial Justice Act, 2–3 Connecticut: abolition of the death penalty, 19, 146 constitutionality of the death penalty, 1–3. See also Furman v. Georgia; Supreme Court, US cost of executions, 155–157, 161(n9) Costa Rica: abolition of the death penalty, 145–146 covert racism. See structural racism crack cocaine, 44 crime, structural racism and, 80–81

207

crime control model of justice, 112 cultural factors: historical roots of discriminatory death penalty policies, 17; McCleskey decision and the color-blind view of equal protection, 42–43 cultural narratives shaping the debate, 39, 57 Davis, Troy, 57 death eligible cases, 37–38, 71–72 “death is different “ principle, 30–31 death qualification of jurors, 109, 112–113, 117 death row population, 78, 164(fig.) defendant selection: Oklahoma’s judicial process, 140 deterrent value of the death penalty, 53, 60–62, 68(n1), 150–153 discrimination: arbitrary and discriminatory application of the death penalty, 147–150; Baldus study findings in McCleskey decision, 26; death-qualified juries, 109–111; Georgia’s capital sentencing, 91–92; institutional discrimination and capital punishment in the South, 14–18; jury studies of unequal application, 39–40; oral arguments in McCleskey, 24–25; racial disparities in capital jury decisions, 119–120; social processes shaping, 41; statistical evidence of discrimination in the death penalty, 38–39; systemic nature of, 37–38, 46–47. See also bias discriminatory purpose doctrine, 32 disenfranchisement of felons, 58, 81 drug use: disparate penalties for similar crimes by social status, 44–45 drunk driving, 44 Du Bois, W.E.B., 11 due process: masking discriminative practices, 13–14; model of justice,

208

INDEX

112, 115, 118; super due process, 30–31, 34, 155 Dupree, Bernard, 8 economic resources: cost of executions, 155–157; data on the deterrent value of capital punishment, 61; goals of punishment, 53; perverse incentive for executions, 166–168; reasons for retaining the death penalty, 150–151 economic space: racial threat theory, 81 Eddings v. Oklahoma, 42, 123 effectiveness of the death penalty, 60–61, 90 Ehrlich, Isaac, 60–61 empirical research on capital punishment: deterrent value of capital punishment, 60–62; efficacy data, 57–63; findings on racial bias, 62–63; Georgia’s disproportionate capital sentencing of blacks, 9–10; McCleskey decision deriding, 64– 67; moral justification for capital punishment, 56; overcoming emotional views of capital punishment, 58–59; race and class factors outweighing legal factors, 63–67; statistical evidence of discrimination in the death penalty, 38–39 equal protection: color-blind view of, 15, 41–43; McCleskey ruling, 26; mens rea requirement, 31–32; structural mitigation of the death sentencing process, 46–47 ethnicity. See Asian Americans; Hispanics execution rate: abolition and reintroduction of the death penalty, 146; arbitrary and discriminatory application of the death penalty, 147–150; Oklahoma, 126–127; power of a

perverse incentive, 166–168; role of public defenders, 165–166; Singapore and Hong Kong, 152– 153; Texas and California, 163–165; US decline, 147; various states, 160(n4); victimization of black males, 149– 150; women, 148–149 eye-for-an-eye maxim, 157 Fallin, Mary, 124 false convictions, juror attitudes towards, 116–117 federal courts, 165; requiring adequate legal representation in capital cases, 167–168 federal process: cost of executions, 156; race effects in sentencing, 73. See also Supreme Court, US federalism: US retention and abolition of the death penalty, 146 Florida: Blackwelder execution, 151– 152, 160(n7); costs of capital cases, 155; effect of age and sex on the judicial process, 136; execution rates, 147; race-ofdefendant, 160(n6) Florida v. Zimmerman, 14 Forrester, J. Owen, 23–25, 65–66, 69(n13) Fourteenth Amendment rights: capital jury formation, 110 Furman v. Georgia: arbitrary and discriminatory death penalty application, 147–150; “death is different “ principle, 30–31; effect on racial bias in Georgia’s capital cases, 91–92; judicial second thoughts on capital punishment, 33; justices’ awareness of racial bias, 1–2; mandatory death sentence crimes, 76; Marshall hypothesis of capital punishment, 51–52; moral argument for the death penalty, 56; Oklahoma’s racial disparity in capital cases,

INDEX

125; pro-death penalty backlash, 16–17; relevance of Baldus’s research, 26–27; revenge as motive for the death penalty, 157; ruling and response, 37–38; unconstitutionality ruling, 91 Gambia, 160(n1) gang life, 154 Garland, David, 16–17 General Accounting Office, US (GAO), 149 general deterrence, 151–153 geographic factors: Baldus Study evidence, 96–97; Georgia’s capital case processing, 90, 99–100; rationale for the death penalty, 145–147 Georgia: aggravating factors in capital cases, 106; analysis of racial effects in capital sentencing, 97–104; Baldus study’s impact on sentencing research, 59–60, 107(n1); data collection for sentencing research, 93–94; data on racial effects of capital sentencing, 94–96; effect of age and sex on the judicial process, 136; geographical effects of death sentencing, 96–97; previous research on sentencing, 91–93; prosecutorial discretion in capital cases by race, 95(table); prosecutorial discretion in McCleskey, 25; sex-of-victim effect in capital sentencing, 74. See also Baldus, David/Baldus study; Gregg v. Georgia; McCleskey v. Kemp Gilmore, Gary, 1, 151 government (state): blaming the victim for inadequate representation, 169; deathqualified juries, 110–111; Oklahoma circumventing federal intervention, 124–125; perverse incentive for executions, 166–168;

209

racial threat theory application, 86–87 Green River Killer, 148 Gregg v. Georgia: analysis of Georgia’s capital case processing, 89–90; arbitrary application of the death penalty, 40–41; death penalty abolition, 29–30; effect on Oklahoma’s judicial process, 138– 140; judicial second thoughts on capital punishment, 33; McCleskey arguments, 25; mitigation in the application of the death penalty, 42; Oklahoma’s capital sentencing law, 127; Oklahoma’s racial disparity in capital cases, 125–126; response to ruling, 18–19; super due process, 30–31 group polarization in capital juries, 117–118, 121(n4) guided discretion sentencing statutes, 37–38, 40–41 Habeas Corpus Resource Center, 165 Haney, Craig, 44 Hispanics: ethnic characteristics of Oklahoma’s homicides, 142(table); Georgia’s sentencing research, 107(n2); Oklahoma’s judicial process in capital cases, 134; race and ethnic violence influencing the penal culture, 123–124 historical context: McCleskey ruling on purposeful discrimination, 10– 14, 27–29; rationale for the death penalty, 145–147 homicide: age eligibility in capital cases, 123–124; aggravating factors in Georgia’s capital cases, 106; analysis of racial effects in Georgia’s capital sentencing, 97– 104; Capital Jury Project, 77; Charging and Sentencing Study findings, 22–23; deterrence value of the death penalty and life

210

INDEX

imprisonment, 152–153; disparities in Oklahoma’s judicial process, 140; effect of weapon choice on Oklahoma’s judicial process, 137–138; empirical data on deterrent value, 60–61; Gary Ridgway’s avoidance of the death penalty, 148; increase after executions, 68(n4); Oklahoma’s expansion of capital sentencing laws, 127; prosecutorial discretion in Georgia’s capital cases based on race, 95(table); race of offenders and victims affecting South Carolina sentencing, 75–76; racial bias in Georgia’s capital cases, 91–92; severity as predictor of sentence, 62–63, 68–69(n11); socioeconomic status and race influencing sentencing, 72 Hong Kong: deterrence value of the death penalty and life imprisonment, 152–153 Illinois: abolition of the death penalty, 19, 35, 146; clemency and closure, 159; race-of-victim effect in sentencing, 73 incapacitative effect of capital punishment, 61–62, 150, 153–154 incarceration rate, 78–79 individual actor view of discrimination, 21–22, 28, 38–39, 41–43 inflammatory factors in Oklahoma’s judicial process, 139 institutional racism, 120(n2), 126. See also structural racism institutional view of capital punishment, 29–32 Internet Project for Street Peace, 154 interracial crimes: racial justice reform, 85–86. See also race-ofoffender effect; race-of-victim effect intraracial crimes, 68(n3) Iran: execution statistics, 146

Iraq: execution statistics, 146 judicial process in Oklahoma’s capital cases, 127–134 judicial review, 31–32, 86 Jurek v. Texas, 125 juries: death-eligibility limiting black jurors, 48(n1); effect of racial composition of, 39–40; mitigating factors, 48(n2); Oklahoma’s judicial process in capital cases, 128–129; role in capital sentencing, 77. See also capital juries jury nullification, 151 justice system: race and class factors overwhelming legal factors in, 63–67 justification for the death penalty. See moral issue, death penalty as; rationale for the death penalty juveniles: analysis of Oklahoma’s judicial process, 132–134; execution rate, 149; Oklahoma’s debate over age eligibility, 123– 124 Kansas: costs of capital cases, 155; execution rates, 147 Kentucky: prosecutorial role in racial bias in sentencing, 75; Racial Justice Act, 83–84 Kraft, Randy, 156 lawyers: California and Texas execution rates, 165–168; capital jurors’ attitudes towards, 112; empathetic divide between white jurors and black defendants, 77; role of public defenders in execution rates, 165–166. See also prosecutors; public defenders legal representation: blaming the victim for inadequacy of, 168– 169; California and Texas execution rates, 165–168; vetting capital juries, 109–111; for

INDEX

wealthy defendants, 148–149. See also lawyers; public defenders lex talionis, 54–55 Life in Prison (Williams), 154 life sentences: capital jury formation, 110; cost of executions, 155–157; deterrence value of, 151–152; incapacitation effect, 153–154; Oklahoma’s judicial process in capital cases, 128–129; Oklahoma’s racial discrimination in capital cases, 126 Lockett, Clayton, 124 Lockett & Warner v. Evans, 124 Lockett v. Ohio, 56, 139 Lockhart v. McCree, 110–111, 118 low-visibility decisionmaking, 125, 139 lynchings, 12, 15–16, 87, 90 mandatory death penalty, 76 Marshall, Thurgood, 1, 27, 51–52 Maryland: abolition of the death penalty, 19, 146; statistical data on race in homicide prosecutions, 72 McCleskey, Warren, 2–3, 24. See also McCleskey v. Kemp McCleskey v. Kemp: Baldus findings and, 22–23, 64–67; case law approach and, 31–32; Court overstepping judicial bounds, 17– 18; Court’s ruling, 26–27; crime, trial, and sentencing, 7–10; dissenting arguments, 27–29; Dred Scott and, 46; factors in prosecutorial decisions, 105; historical context, 10–14; individual actor view of discrimination, 41–42; institutional discrimination and aggravating factors, 44–46; institutional discrimination and capital punishment, 14–18; intellectual dilemma, 21–22; judicial second thoughts on capital punishment, 2, 32–34; mitigation and, 43–44; oral arguments, 24–

211

26; outcome, 69(n13); Powell’s concerns over Court decision, 87; race-of-victim effect, 71; remedies for racial discrimination in capital cases, 83; response to ruling, 46– 47; systemic nature of discrimination, 39 McCleskey v. Zant, 23–24, 65 McCree, Ardia, 110 McVeigh, Timothy, 156–157 media: popularizing capital punishment, 57–58 mens rea requirement, 31–32 mentally disabled population, 124 methods of execution, 124–125 military courts, 38, 147 Mills, C. Wright, 21 minorities: exclusion from capital juries, 109. See also African Americans; Hispanics; Native Americans Missouri: effect of age and sex on the judicial process, 136; execution rates, 147; Oklahoma’s debate over age eligibility, 123–124 mitigation, 24, 41–44, 47, 48(n2) moral issue, death penalty as: Bedau’s opposition to the death penalty, 57; characteristics of capital juries, 111–113; justifications for punishment by death, 52–56; media popularizing capital punishment, 57–58; revenge as motive for the death penalty, 157–158; vetting capital juries, 109–111; Woodson v. North Carolina, 68(n2) motivation for capital punishment. See rationale for the death penalty Myrdal, Gunnar, 28 National Crime and Race Survey, 78 Native Americans: ethnic characteristics of Oklahoma’s homicides, 142(table); Oklahoma’s judicial process in capital cases, 134; Oklahoma’s

212

INDEX

race and ethnic violence influencing the penal culture, 123–124 Nebraska: abolition of the death penalty, 19, 146, 160(n2) Nepal: reintroduction of the death penalty, 146 New Hampshire: abolition of the death penalty, 19; costs of capital cases, 155; execution rates, 147 New Jersey: abolition of the death penalty, 19, 35, 146; costs of capital cases, 155, 161(n9); execution rate, 169; racial justice reform, 86 The New Jim Crow (Alexander), 15 New Mexico: abolition of the death penalty, 19, 35, 146 New York: abolition of the death penalty, 19 Nobel Peace Prize nomination, 154 North-South divide: US execution rates, 147 Obama, Barack, 80 O’Connor, Sandra Day, 25–26, 34 Ohio: race-of-victim effect in sentencing, 73 Oklahoma: analysis of race in judicial process, 129–130; data analysis variable, 141(table); effect of Gregg v Georgia on the judicial process, 138–140; effect of race on the judicial process, 136–137; effect of weapon choice on the judicial process, 137–138; effects of age and sex on the judicial process, 134–136; ethnic characteristics of homicides, 142(table); execution data and analyses, 127–129, 160(n4); execution of juveniles, 123–124; execution powers, 124–125; execution rates, 147; judicial process in capital cases, 127–134; probability of prosecutors charging capital homicide,

131(table); race and ethnic violence influencing the penal culture, 123; racialization of justice, 125–127 Oklahoma Habitual Criminal Sterilization Act (1935), 123 Oklahoma Indigent Defense System, 127 Oklahoma Offender Database (OOD), 127 Papua New Guinea: reintroduction of the death penalty, 146 Payne v. Tennessee, 139 Peculiar Institution (Garland), 16–17 Penry v. Lynaugh, 42 perverse incentive, power of, 166– 169 Philippines: reintroduction of the death penalty, 146 philosophical grounds of capital punishment, 51–52 Pitts v. State of Oklahoma, 124 plea bargains: Gary Ridgway, 148; governmental conflict of interest, 167; Oklahoma’s judicial process, 139 Plessy v. Ferguson, 10–12 polarization of capital juries, 117 political space: defending capital punishment, 57; embeddedness of capital punishment in America’s, 16–17; racial threat theory, 81–83 Powell, Lewis, 26–27, 32–33, 35, 67, 83–84, 87 Presidential Call to Service Award, 154 probable cause, unequal application of, 44–45 Procedural Reform Study (PRS), 22, 58, 92 Proffit v. Florida, 125 propensity score matching, 90, 97, 100–101 Prosecution and Racial Justice Project, 84 prosecutors: Charging and

INDEX

Sentencing Study data on race, 59(table); eliminating racial disparity in capital sentencing, 74–76; empirical data on race influencing outcomes, 63–67; geographical effects of death sentencing, 97(table); jury studies of unequal application, 39–40; probability of Oklahoma prosecutors charging capital homicide, 131(table); race-based probability of death sentencing, 95(table); regression results for capital sentencing in Georgia, 98(table) public defenders: governmental conflict of interest in capital cases, 167; role in execution rates, 165– 166 public opinion on capital punishment, 51–52, 78 Pulaski, Charles, 2, 22, 58 quality of mind, 21 race: American Americans’ attitudes towards the death penalty, 112– 113; arbitrary and discriminatory application of the death penalty, 148–149; death penalty research on bias in capital cases, 90–93; death-qualified juries, 109–111; effect of age and sex on Oklahoma’s judicial process, 134– 136; geographical effects of death sentencing, 96–97; Georgia’s capital case processing, 89–90; Georgia’s capital sentencing, 94– 104; Kentucky’s Racial Justice Act, 83–84; Oklahoma’s race and ethnic violence influencing the penal culture, 123–124; race of jurors affecting unequal application, 39–40; sources of racial bias, 78–83; stereotype activation, 113–115; stereotype concentration in capital juries,

213

116; victimization of black males, 149–150 race riots, 12 race-of-offender effect: analysis of Oklahoma’s capital cases process, 129–134; capital jury selection, 119–120; capital sentencing patterns, 73–74; capital sentencing patterns for rape, 91; Charging and Sentencing Study data, 59(fig.); effect on Oklahoma’s capital cases, 136–137; effect on Oklahoma’s judicial process, 138– 140; ethnic characteristics of Oklahoma’s homicides, 142(table); execution rates of black males, 149–150; probability of Oklahoma prosecutors charging capital homicide, 131(table); prosecutorial discretion in Georgia’s capital cases, 95(table); prosecutors’ race influencing capital sentencing, 76; racial disparities in capital jury decisions, 113–115; racial stereotypes contributing to discrimination and bias, 79; severity of homicide and, 62–63, 68–69(n11); social status and penalties, 44–45; South Carolina capital sentencing, 75–76; statistical evidence supporting, 38–39 race-of-victim effect: aggravating factors, 25–26; Baldus study findings, 22–23; capital jury selection, 119–120; capital sentencing patterns, 73–74; Charging and Sentencing Study data, 59(table); discriminatory application of the death penalty, 150; effect of victims’ social status on sentencing, 62; Georgia’s capital case processing, 90–92, 102, 107(n2); McCleskey decision deriding empirical study of, 66–67; Oklahoma’s capital

214

INDEX

cases, 127, 136–137, 142(table); Oklahoma’s capital cases process, 129–134; Oklahoma’s harsher penalties for crimes against whites, 125–126; probability of Oklahoma prosecutors charging capital homicide, 131(table); prosecutorial discretion in Georgia’s capital cases, 95(table); racial bias in Georgia’s capital cases, 91–92; racial disparities in capital jury decisions, 113–115; racial stereotypes contributing to discrimination and bias, 79; severity of homicide and, 62–63, 68–69(n11); socioeconomic status and, 62, 71–72; South Carolina capital sentencing, 75–76; statistical evidence supporting, 38–39 Racial Justice Act (1991), 2–3 Racial Justice Act (Kentucky, 1998), 83–84 racial threat theory, 81–82, 86–87 racism: sociological imagination, 21– 22 rape: aggravating factors in Georgia’s capital cases, 106; capital sentencing in Georgia, 91 rational choice model of human behavior, 42–43 rationale for the death penalty: closure, 158–159; deterrent value, 53, 60–62, 68(n1), 150–153; empirical perspective, 57–63; historical and geographic context, 145–147; incapacitative effect, 61–62, 150, 153–154; revenge, 53–55, 57, 68(n1), 157–158. See also moral issue, death penalty as Reagan, Ronald, 15 reasonable doubt, 117 Reconstruction, 10–12 rectification as justification for punishment, 53 rehabilitation of prisoners, 154

Rehnquist, William, 25–26, 30, 33 reincarceration, empirical data on, 62–63 reintroduction of the death penalty, 146, 160(n3) religious belief: public opinion on the death penalty, 52; racial threat studies on sentencing, 82 repeat offenses: aggravating factors in Georgia’s capital cases, 106; effect on Oklahoma’s judicial process, 138; incapacitative effect of capital punishment, 61–62, 68(n9); Oklahoma’s statutes, 124; racial bias in Georgia’s capital cases, 92 retention of the death penalty: closure as motive for, 158–159; cost of executions and, 155–157; deterrence effect, 53, 60–62, 68(n1), 150–153; incapacitative effect of capital punishment, 61– 62, 150, 153–154; revenge motive, 157–158 revenge as motive for the death penalty, 53–55, 57, 68(n1), 157– 158 Ridgway, Gary, 148 right to life, 52 rights, condemned prisoners’ right to have, 56 Ring v. Arizona, 37 risk of execution, 163–165 Roberts v. Louisiana, 76 Roper v. Simmons, 123–124, 149 rural-urban divide in capital cases, 107(n3); analysis of Georgia’s capital case processing, 102–103; analysis of racial effects in Georgia’s capital cases, 100; geographical effects of death sentencing, 96–97 Ryan, George, 159 San Marino: abolition of the death penalty, 145–146

INDEX

Saudi Arabia: execution statistics, 146 Scalia, Antonin, 26, 87 Schlatt, Frank, 8–9 segregation, racial, 12, 80 self-enhancement bias, 118 sentencing: Brennan’s argument in McCleskey, 27; Charging and Sentencing Study, 58–59, 107(n1); death-qualified juries, 109–111; effect of victims’ social status, 62; geographic effects in capital cases, 96–97, 147; Georgia’s capital case processing, 89–90, 97–104; jury’s role in capital sentencing, 77; Kentucky’s Racial Justice Act, 83–84; mitigation, 41–42; Oklahoma’s judicial process in capital cases, 128; prosecutors’ role, 74–76; race-of-victim effect, 73; racial disparities in capital jury decisions, 113–115, 119–120; racial threat theory, 81–83, 86–87; remedies for racial bias, 85–86; research on racial bias in capital sentencing, 90–93; research on sentencing in Georgia, 91–93; response to Furman, 37–38; sources of racial bias, 78–83; systemic nature of racism, 47; Texas statistics, 163–165. See also charging; McCleskey v. Kemp “separate but equal” doctrine, 10–11 sex crimes: Oklahoma statutes, 124 sex-of-victim effect, 74 Singapore: deterrence value of the death penalty and life imprisonment, 152–153 Skinner v. Oklahoma, 123 smoking gun approach, 29–30, 35 social goals of punishment, 52–55 social privilege. See structural racism social psychology: death qualification for juries, 109–111; death qualified juror characteristics, 111–115; group

215

polarization in death qualified jurors, 117–118; social schemas influencing cognitive categories, 114–115; stereotype activation in death qualified juries, 116–117 socioeconomic status: arbitrary and discriminatory application of the death penalty, 148–149; disparate penalties for similar crimes, 44– 45; effect of victims’ status on sentencing, 62; influencing of charging and sentencing, 72; stereotypes contributing to bias, 79; structural racism and crime, 80–81 sociological imagination, 21 South Carolina: race-of victim and race-of-offender effects in sentencing, 75–76 specialist race disparity arguments, 69(n12) statistical data. See Baldus, David/Baldus study; empirical research statutory aggravators, 37 stays of execution, 124–125 stereotype activation: capital jury members’ attitudes, 113–115, 118; contributing to discrimination and bias, 79; death qualified jurors, 119–120; social schemas influencing cognitive categories, 114–115 sterilization, mandatory, 123 Stevens, John Paul, 27, 33–35, 87 Stewart, Potter, 2, 125–126 Stinney, George, 149 stop-and-frisk programs, 44–45 Strickland v. Washington, 168 structural mitigation, 43–44 structural racism: aggravating factors, 44–46; American class system, 80–81; individualistic view of harm causation, 42–43; institutional discrimination and capital punishment in the South,

216

INDEX

14–18; jury studies of unequal application, 39–40; racial threat theory, 86–87; shift from overt racism to, 79–80 super due process, 30–31, 34, 155 Supreme Court, US: Baldus study’s impact on sentencing research, 107(n1); blaming the victim for inadequate representation, 169; California and Texas execution rates, 164–165; constitutionality of the death penalty, 1–3; cost of executions, 155; death-qualified capital juries, 109–111, 119–120; effect of the Baldus study on McCleskey, 64–67; emphasis on legal procedures, 30–31; execution of juvenile offenders, 149; invalidation of the death penalty, 147–148; judicial second thoughts on capital punishment, 32–34; Marshall hypothesis of capital punishment, 51–52; minimum standards of legal representation, 168; mitigation in the application of the death penalty, 42; moral grounds for the death penalty, 56; Oklahoma’s mandatory sterilization, 123; Oklahoma’s racialization of justice, 124–126; Oklahoma’s repeat crimes statute, 124; Plessy v. Ferguson, 11–12; prosecutorial and juror discretion in capital sentencing, 76; removing racial bias from capital sentencing, 87; Washington v. Davis, 29–30. See also Furman v. Georgia; Gregg v. Georgia; McCleskey v. Kemp symbolic assailant, 114 Tennard v. Dretke, 42 Tennessee, 160(n6) Texas: death sentence statistics, 163– 165; execution rates, 147, 160(n4); perverse incentive for

executions, 166; statistical data on race in homicide prosecutions, 72 Thompson v. Oklahoma, 123–125 Turner v. Murray, 85–86 typical nigger defense (TND), 140 Utah: Gilmore execution, 151–152 values and beliefs, 112, 114–115 Van den Haag, Ernest, 53–56, 68(n1), 151 Venezuela: abolition of the death penalty, 145–146 vengeance as justification for capital punishment, 53–55, 57, 68(n1) Vera Institute of Justice, 84 victim. See race-of-victim effect Virginia: execution rates, 147, 160(n4) Wainwright v. Witt, 109–110 War on Drugs, 14 Washington: costs of capital cases, 155 Washington, Booker T., 11–12 Washington v. Davis, 29–30, 32, 35 weapons: Georgia’s capital cases, 99; Oklahoma’s judicial process in capital cases, 130–132, 134, 137– 139 Weiss, Robert, 123 Westmoreland, Mary Beth, 7, 25 White, Byron, 26, 34 white male dominance effect in juries, 116, 118, 121(n4) Williams, Stanley “Tookie,” 154 Witherspoon v. Illinois, 120(n1), 139 women: analysis of racial effects in Georgia’s capital sentencing, 97– 104; characteristics of capital juries, 112; death penalty statistics on, 148–149; death-qualified capital juries, 109; discriminatory application of the death penalty, 150; effect on Oklahoma’s judicial process, 134–136; exclusion from

INDEX

capital juries, 117; sex-of-victim effect in sentencing, 74 Woodson v. North Carolina, 42, 68(n2), 76 Woodworth, George, 2, 22, 58 Wright, Ben, 8 wrongful execution: incapacitation

217

effect of the death penalty, 153– 154; media popularizing capital punishment, 57–58; moral debate over capital punishment, 55–56; statistics on, 68(n10) Yemen: execution statistics, 146

About the Book

N WHAT HAS BEEN CALLED THE DRED SCOTT DECISION OF OUR TIMES, the US Supreme Court found in McCleskey v. Kemp that evidence of overwhelming racial disparities in the capital punishment process could not be admitted in individual capital cases—in effect institutionalizing a racially unequal system of criminal justice. Exploring the enduring legacy of this radical decision nearly three decades later, the authors of Race and the Death Penalty examine the persistence of racial discrimination in the practice of capital punishment, the dynamics that drive it, and the human consequences of both.

I

David P. Keys is associate professor of criminal justice at New Mexico State University. R. J. Maratea is research consultant with the Youth Research and Resource Center, Inc.

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