Spring 1997, Volume XII, Number 2 The Death Penalty Race and the Death Penalty Editor: Is the death penalty an area of our criminal justice system that, today, can be called racist or discriminatory? James Coleman: This is a big subject. I believe that the criminal justice system is racist and discriminatory, but not in the sense that it violates the Equal Protection Clause. Consider, for example, a case that I have handled since 1983 (Booker v. Singletary, FL), where the prosecutor filed a sentencing recommendation that the death penalty ought to be imposed. The prosecutor, defense lawyer, judge and victim all were white. In arguing that the crime was heinous, the prosecutor wrote: "The injuries to this lady's innocent body are numerous ... degrading rape by young male of the opposite race, prior to fatal stab wound." Neither the judge nor the defense counsel objected to this argument; nor did the Florida Supreme Court notice it in its review. This direct appeal to race, in other words, was unremarkable. I don't think that the prosecutor who wrote the memo thought he was being racist. He was just expressing an attitude that prevailed at the time, that was accepted as normal. In capital cases, prosecutors routinely move to exclude all black jurors, on the ground that such jurors would be sympathetic to the black defendant. This can be traced to the legacy of our antebellum criminal system, in which slaves and free blacks were not considered equals and in which more severe punishment was accepted as normal. I think the country still believes that black defendants deserve more severe punishment, because they are more threatening, especially when the victim of the crime is white. The criminal justice will never be fair or nondiscriminatory until it is administered by both black and white citizens, until prosecutors and jurors are forced routinely to deal with the experiences of black people and to factor those experiences into their decisions. There is no such thing as a race neutral decision in the criminal justice system, when it affects black people and when their voice is not part of the discussion leading to the decision. John McAdams: This is not an easy question to approach empirically. For example, it is clearly the case that blacks who murder whites are treated more harshly than are blacks who murder blacks. This looks like racial disparity if you assume that the circumstances are similar in the two cases. Unfortunately, it's vastly unlikely that they are. Most murders are among people who know each other. Murders done by strangers are much more likely to be regarded as heinous than are murders growing out of domestic quarrels, drug deals gone wrong, and such. It might seem reasonable to compare the punishment received by blacks who murder whites with the treatment received by whites who murder blacks. Unfortunately, while black on white crime is relatively rare, white on black crime is even rarer. There simply isn't an adequate statistical base to allow us to generalize about whites who murder blacks, which pretty much leaves us to compare the way the system treats blacks who murder blacks with the way it treats whites who murder whites. When we do this, we find some fairly solid-looking evidence that the system is unfairly tough on white murderers -- or if you prefer, unfairly lenient on black murderers. But even this finding is one we have to be skeptical about. Is the average black on black murder quite similar to the average white on white murder? Or are there systematic differences? Leigh Bienen: 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 personae are the favorites of those administering the punishment, including the overwhelmingly middle-aged white, male prosecutors who -- in running for election or re-election -- find nothing gets them more votes than demonizing young black men. The reasons for this have much more to do with the larger politics of the country than with the death penalty. I would also argue that the class and economic discrimination affecting the death penalty are "worse," in the sense of being more unjust, than the racial elements. James Acker: There is considerable evidence that the output of capital punishment systems in several states is influenced by race. The race effects may not reflect overt, intentional invidious discrimination. The influences may work more subtly. The media may publicize white victim homicides much more intensely, for example, which in turn puts pressure on prosecutors to do something in response, by seeking a capital sentence. Likewise, prosecutors choose cases in which they will seek death very cautiously. They may assess that the odds are higher of gaining a death sentence, when the homicide victim is white. Generally speaking, African- Americans are less likely to serve on capital juries, because a higher percentage of African-Americans do not survive the death-qualification process. For these reasons, the capital punishment process in several states has yet to be purged of race discrimination. David Baldus: Much of the debate on the race issue naturally turns on the interpretation of the data concerning the frequency with which death is sought and imposed on different racial groups. It is useful to distinguish between gross unadjusted racial disparities, on the one hand, and adjusted disparities that control for the presence of aggravating and mitigating factors that clearly influence the decisions and that may also be correlated with race. A failure to adjust introduces a significant risk of an erroneous inference about the influence of race. For this reason, gross disparities, especially based on the entire nation, are suspect. At best, these data are suggestive, and experience indicates that when the disparities in death sentencing rates are adjusted for legitimate case characteristics, unadjusted race disparities usually, but not always, decline. [With these important methodological issues as background], what do the data tell us about differences in discrimination in the pre- and post-Furman periods? There are significant differences in race effects, both across and within states. There are differences in the magnitude of race effects at different decisionmaking levels in the states -- i.e., prosecutorial decisions to seek the death penalty and jury decisions to impose death. There are also differences that correlate with culpability. The risk of race effects was very low in the most aggravated capital cases; however, in the mid-range cases, where the "correct" sentence was less clear, and the room for exercise of discretion much broader, the race disparities are much stronger. Whereas the overall average disparity for the two groups (Black v. White) tends to be 6-8 percentage points, in the mid-range cases the disparities are typically two to three times that large. John McAdams: David Baldus' discussion of the literature on racial inequity is highly useful. I agree entirely with his characterization of what the data show. The studies don't show discrimination consistently. Studies in some jurisdictions show it, and studies in others do not. This could be the result of genuine differences across jurisdictions, or it could be the result of a weak general pattern, which happens, by statistical accidents, to be "significant" in some studies but not in others. When we add all this up, I think the system does discriminate against black victims in at least some decisions in some jurisdictions. This is wrong. But it's not the politically correct fantasy of a system massively discriminating against black offenders. It's not at all clear that racial inequity is worse in the administration of the death penalty than for other punishments. Now, the question for death penalty opponents: Is the degree of racial inequity that Baldus describes such that it renders capital punishment unacceptable? James Coleman: There is a difficulty we have talking about race that makes empirical evidence less useful than perhaps in other areas of research. One of the things that always interested me was whether Baldus et al. looked at the racial composition of juries in their study. In McCleskey, the jury was composed of 11 whites and 1 black man, a retired county worker. In the early jury cases (Strauder v. West Virginia, 1879; Virginia v. Rives, 1880, etc.), the Court made quite clear that it was recognizing only the right of black people to be considered for jury service, not a right actually to serve. By implication, the Court was saying that a racially neutral decision could be made to exclude particular black jurors (or all of them) and that the administration of justice would not be affected. I question this premise. In the 11th Circuit's decision in Jackson v. Herring (1995), the court held that although the defendant had established a Batson violation, the error was harmless because the defendant could not show that the decision of a racially mixed jury would have been different. That result seems compelled by neutral principles, but it ignores reality. Do any of us believe that having black people participate in the decision whether to impose the death penalty on a black person would not make a difference in the deliberations? I think it is impossible to administer a criminal justice system without including in the decision-making the experiences of all segments of the community, at least the significant ones. Austin Sarat: I think that we are all pretty reliant on the Baldus study, which seems to say that race of the victim is key. The race of the victim and defendant influences invisible decisions about whom to charge and prosecute for capital murder. And class can't be left out -- research suggests that the quality of defense counsel makes a huge difference. If you can afford quality counsel, then your chances of "surviving" a capital charge improve immeasurably. David Baldus: There is much anecdotal evidence from lawyers who represent capital defendants. Many of them seriously question the validity of statistical studies that do not reveal disparities based upon the race of the defendant. It is possible that there is such discrimination, but that it is not sufficiently large and systematic to be picked up by the data. Spring 1997 Issue Home | The Death Penalty: A Scholarly Forum Arbitrariness and the Death Penalty | Race and the Death Penalty Victims and the Death Penalty | Purposes of the Death Penalty Teaching about the Death Penalty | Conclusion and Participants List Unedited Death Penalty Forum ABA Calls for Moratorium | Policy, Statistics, and Public Opinion Multidisciplinary Teaching about the Death Penalty Links Focus on Law Studies Home | Subscribe to Focus | Questions/Ordering Back Issues